Hayley Dunn, ‘What’s in Your Box? Removing the Tiffany Standard of Knowledge in Online Marketplaces’

Online shopping is a quintessential component of modern life. Millions of products from trusted brands are conveniently available at single-stop online marketplaces such as Amazon, eBay, and Alibaba with the click of a button from the comfort of home. But is the product delivered to the consumer’s front door actually the same as the one found on a store shelf? Pervasive trademark infringement in online marketplaces makes the answer to this question difficult, that is, until the consumer experiences negative consequences from a counterfeited product.

Under Tiffany (NJ) Inc v eBay, Inc, online marketplaces face almost no liability for trademark infringements occurring on their websites. As a result, trademark owners face the impossible task of constantly policing millions of product listings across innumerable websites to protect their brands from the onslaught of reputation damaging counterfeits, while online marketplaces can take a passive approach to the infringement problem. This imbalance in responsibility causes countless counterfeit, and potentially dangerous, products to find their ways into the hands of unsuspecting consumers. After reviewing the relevant legal landscape, this Comment advocates for legislative action to lower the current scienter requirement for contributory trademark infringement in online marketplaces in an effort to incentivize online marketplaces to take a more proactive role in policing trademark infringement on their websites.

Hayley Dunn, What’s in Your Box? Removing the Tiffany Standard of Knowledge in Online Marketplaces, 29 Catholic University Journal of Law and Technology 91 (2021).

First posted 2021-06-30 08:00:32

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