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Trademarks
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A federal judge in New York has ruled that online retailers do not have a burden to affirmatively police trademark infringers that sell on their sites. The case pitted Tiffany, maker of fine jewelry, against eBay. Tiffany asked the court to rule that eBay should be responsible for policing its site for trademark infringers, often in the form of forgeries sold on eBay.
The Court ruled that eBay did not have a duty to affirmatively seek trademark infringers on its site, noting that the duty to protect a trademark falls to the mark’s owner, not a third party sales outlet. Of particular importance, however, was the fact that eBay had promptly investigated and removed any reports of trademark infringements provided by Tiffany.
This is a sensible ruling. eBay and other online retailers should not be assigned policing tasks that are already assigned to other parties, notably, the mark holders. Once the mark holders do their part by notifying retailer of infringement, however, online retailers should have the burden of investigating credible IP threats on their respective sites. The judge noted that eBay had done that in this particular factual scenario. Other courts would be wise to adopt similar assignments of burden to both mark holders and online retailers in future matters.
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Trademarks
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Apple Computer recently sought to expand its trademark
protection into a new class of goods: gaming. The proposed expansion of its
preexisting federal trademark has many in the industry wondering what Apple has
planned. Some of the attempted protections are:
hand-held units for playing electronic games; hand-held
units for playing video games; stand alone video game machines; electronic games
other than those adapted for use with television receivers only; LCD game
machines; electronic educational game machines; toys, namely battery-powered
computer games.
This does not appear to be competition to the Sony
Playstation or Nintendo Wii, for example, which are designed for use with
televisions. Rather, it appears to be an attempt to protect the mark in
“mobile” gaming.
Does this mean that Apple intends to compete with the PSPs
of the world? Probably. Apple filed its request under a 1(b) trademark status,
which is defined as a mark applying for protection when the applicant “intends
to use” the mark in commerce, as opposed to having a present use in commerce.
Given that the sought protection does not cover a product or service currently
in the marketplace, the smart money suggests that we will be seeing a new
portable gaming device from Apple shortly.
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