Lawsuit ties eBay to trademark infringement

eBay's liability in the case is an open question

A California retailer that sells miniature furniture and home accessories is suing online auction site eBay for refusing to take down auctions that it claims infringe on its trademark.

Hansson in California filed the lawsuit late last month against eBay and an eBay seller in Atlantic City that it claims has been selling miniature furniture on the auction site under the Hansson name since August 1, 2004.

Ebay's Verified Rights Owner (VeRO) Program promotes cooperation between eBay and copyright owners that want to protect their intellectual property rights. Under the program, copyright and trademark owners such as Hansson must alert eBay to potentially infringing auctions. If eBay determines that the trademark owner's claim is correct, the disputed auction is removed from listings.

However, Hansson claims that since August 30, 2007, it has sent eBay eight takedown notices as well as one cease-and-desist letter, but the auction company has not responded. In order to get eBay's attention, Hansson decided to sue for contributory trademark infringement, according to court documents.

Hansson is asking for a jury trial, a permanent injunction against the defendants, as well as monetary damages.

Neither Hansson's attorney, James Cai of Schein & Cai in San Jose, nor eBay could be reached for comment.

Whether eBay will be held liable in the case is an open question, according to a blog post by Eric Goldman, assistant professor and director of the High Tech Law Institute at the Santa Clara University School of Law.

"EBay's risk of contributory liability may be governed by the common law of contributory trademark liability, and we really don't have many good/illustrative precedents for how this applies to a platform like eBay's," Goldman said in the blog. There is no "useful precedent" to this case, Goldman wrote, "so should eBay be liable if they actually received notice of infringement and failed to take down the noticed auctions? Perhaps."

Goldman wrote that he is curious why eBay hasn't responded to Hansson's takedown notices. "What happened to those nine communications from Hansson to eBay? Did they all get lost in the mail? Did eBay make a policy choice that they should be rejected? Did eBay just muff them?" Goldman asks.

Goldman said he sent an e-mail to Cai, asking why eBay was named in the lawsuit, and Cai responded that the goal of the lawsuit was to get eBay to intervene.

"I'm sure he'll get eBay's attention now, but he may get more of it than he wanted," Goldman said in the blog.

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