Ebay'S Liability For Counterfeits: A Transatlantic Comparison

The problem of counterfeits on the internet has been a major issue for trade mark owners, many of whom have now claimed that online marketplace operators, such as eBay, are liable for the infringing acts of their users. Over the past 12 months, eBay has been named as a defendant in proceedings in North American and European jurisdictions in relation to counterfeits sold on its website. This article attempts to analyse the relevant legal standards in these jurisdictions, which have approached eBay's liability in different ways. These include the common law on contributory trade mark infringement and joint tortfeasorship, as well as general tort and unfair competition law. The article shows that eBay has experienced varying levels of success in different jurisdictions. While North American, German, and English courts have set a relatively high legal standard for finding eBay liable, French courts in contrast have a far lower threshold and instead focus on whether eBay has a defence. This suggests that eBay faces different challenges in the markets it operates that compel it to adopt unique legal approaches in each, from proving its lack of specific knowledge of infringing activity in the USA to its status as a host of infringing information in France.