The ruling leaves the door open for Tiffany to challenge’s eBay’s advertising policy, which is why some early headlines at Reuters and elsewhere pegged the decision by the three-judge panel as a win for Tiffany.
But on the central issue of the case, this is a huge win for eBay and its counsel, Bruce Rich of Weil, Gotshal & Manges. (Rich declined comment, saying his client planned to release a statement later in the day). The Second Circuit agreed with a lower court’s 2008 decision that the sale of some counterfeit Tiffany goods on eBay does not constitute infringement by the auctioneer. The panel ruled that eBay takes the appropriate steps to combat sales of counterfeits and therefore does not encourage infringement, as Tiffany alleged. Among the site’s anti-counterfeiting efforts: EBay employs hundreds of people to root out fakes and encourage companies, including Tiffany, to alert it when counterfeit items are listed for sale. EBay also removes such listings within at least 24 hours (and usually within 12 hours), according to court records.
