Anyone with an interest in brand protection or trademark law can find insight in several recent and highly publicized intellectual property cases. My reading on the court decisions has allowed me to gain more insight into the legal trends, especially as pertains to intellectual property rights protection on the Internet. To recap Tiffany v. eBay, the jeweler believed that eBay was not vigilant enough in combating the sale of counterfeit Tiffany merchandise; therefore the company sued the online auctioneer for trademark infringement. Tiffany’s suit did not accuse eBay of having knowledge that counterfeit wares were available, but instead they believed the auction site was obligated to do more to prevent the sale of these goods on its site. The court decided otherwise.
Another recent case that made headlines was LVMH v. Google. LVMH, the French conglomerate with famous luxury brands including Louis Vuitton and Dom Pérignon, took issue with Google’s practice of allowing advertisers to purchase keywords from Google's AdWords that represented LVMH's registered trademarks. LVMH claimed it was Google’s responsibility to takedown advertisements of fake goods from their search engine. For LVMH, the concern was this practice would propagate the sale of counterfeit products and many companies selling knock-offs would appear when a consumer searched for the authentic brand. The European Court of Justice ruled in favor of Google, citing that a paid service provider cannot be held liable for data provided by an advertiser, as long as there is no prior knowledge of dubious or illegal activity.
What I’ve gleaned from both cases is a need for brands and trademark holders to remain vigilant in monitoring for counterfeit or unlicensed goods online. Equally as important, as eBay and other online entities implement a comprehensive strategy to police their sites and create a defense against fraudulent sales, they are doing their part to combat the billion dollar epidemic of counterfeiting. This collaboration along with continual legislation and thought leadership will foster open communication between brands, security providers, and consumers.
It seems the trend has been to side with Internet platforms unless they have no enforcement program in place, or willfully remain blind to counterfeits being sold on their websites. For instance, just last week a federal judge in New York sided with Google and threw out Viacom’s $1 billion copyright infringement lawsuit against Google’s YouTube. Under the Digital Millennium Copyright Act, most websites are protected from liability for copyrighted material uploaded by its users. However, if the content owner notifies the site that the material was uploaded without permission, the service provided is obligated to take down the illegal content.
I predict we will see many more cases especially as digital piracy continues to expand, and e-commerce continues to seep its way deeper into our lives. These first major cases act as trailblazers and set the benchmark for placing responsibility. These court rulings will likely have key impact on new legislation, how we perceive accountability, and place a large push for brand and platform cooperation.
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