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Online sale of counterfeit merchandise

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srd4181

Junior Member
Can I sue a 3rd party website for facilitating the sale of counterfeit merchandise? For example, a seller has posted a Chanel bag. I shop on this site (like eBay or Poshmark for example), contact the seller, who assured me the Chanel was authentic and I purchase it. The site allows 48 hours to inspect the purchase before its complete. I find out later on that the Chanel is actually a counterfeit, contact the seller and the site but both say I’m out of luck. Since the sale of counterfeit items is illegal, can I sue the site?
 


FlyingRon

Senior Member
The sites you mention are just advertising venues. Suing them is not going to be fruitful.

If you have an actual case where you've bought counterfeit merchandise, name the actual site. We don't deal in hypotheticals. There are likely recourses (sites you mention provide them) short of suing as well.
 

quincy

Senior Member
Can I sue a 3rd party website for facilitating the sale of counterfeit merchandise? For example, a seller has posted a Chanel bag. I shop on this site (like eBay or Poshmark for example), contact the seller, who assured me the Chanel was authentic and I purchase it. The site allows 48 hours to inspect the purchase before its complete. I find out later on that the Chanel is actually a counterfeit, contact the seller and the site but both say I’m out of luck. Since the sale of counterfeit items is illegal, can I sue the site?
In what state are you located, srd4181, or, if not in the US, in what country do you reside?

If you purchase an item online that you discover to be a counterfeit, you can contact the trademark holder and let them know. The trademark holder can take action against the seller of the counterfeit goods.

The websites that host the sale of items (like eBay or Craigslist) are (generally) not held liable for what is sold on their sites, protected from suit by the Communications Decency Act's section 230.

Your complaint is against the seller. You can demand a refund.
 

FlyingRon

Senior Member
The websites that host the sale of items (like eBay or Craigslist) are (generally) not held liable for what is sold on their sites, protected from suit by the Communications Decency Act's section 230.
You better read the entire section there. 47 USC 230 doesn't affect intellectual property claims. Pretty much the section excludes such sites from pornographic or otherwise offensive material. 17 USC 512 (OCILLA) also only applies to copyright issues, but not trademark.

Still, I'm not going further in this academic discussion without knowing if there an exact event and the particulars,
 

quincy

Senior Member
You better read the entire section there. 47 USC 230 doesn't affect intellectual property claims. Pretty much the section excludes such sites from pornographic or otherwise offensive material. 17 USC 512 (OCILLA) also only applies to copyright issues, but not trademark.

Still, I'm not going further in this academic discussion without knowing if there an exact event and the particulars,
A site is immune from suit if it acts to remove infringed material upon notification by the rights holder, unless the site can be shown to have contributed to the infringement.

See: Lockheed M@rtin Corp. v. Network Solutions, Inc.: "Contributory infringement occurs when the defendant either intentionally induces a third party to infringe the plaintiff's mark or supplies a product to a third party with actual or constructive knowledge that the product is being used to infringe ..."

See also: Tiffany NJ Inc v. eBay, Inc, 609 F.3d93 (2d Cir. 2010).

Web hosts are not expected to judge the legality of third party content.
 
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Taxing Matters

Overtaxed Member
You better read the entire section there. 47 USC 230 doesn't affect intellectual property claims.
A red herring in the context of this thread. The OP is not the holder of the IP here. The OP is simply a buyer who got stuck with goods that were not what was promised: a genuine Chanel bag. That’s a contract issue between the buyer and seller and third party sites are not going to be liable for that problem.
 

quincy

Senior Member
Here is a link to Lockheed, 1997: https://h2o.law.harvard.edu/cases/4546

Here is a link to 2010's Tiffany NJ v eBay, Inc (abridged): https://cyber.harvard.edu/people/tfisher/IP/2010 Tiffany Abridged.pdf

For a 2011 case against an ISP where the ISP was found contributorily liable for trademark infringement, there is Louis Vuitton Malletier v. Akanov Solutions : http://caselaw.findlaw.com/us-9th-circuit/1579860.html

And for a 2001 case that addresses FlyingRon's CDA immunity assessment there is Gucci America Inc. v. Hall & Associates and Mindspring Enterprises, Inc.: https://h2o.law.harvard.edu/cases/4449

The legal recourse srd4181 has would be against the seller of the Chanel counterfeit. He potentially can sue for a refund. Reporting the seller to the trademark holder is another action he can take, which could work to prevent the seller from selling any other counterfeit goods.

It is possible, by the way, that the seller was unaware the product he was selling was a counterfeit and he could be as much a victim of a counterfeiter as srd4181.
 
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