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eBay is not liable for fakes, says US Court of Appeals
Online auction company eBay does not infringe Tiffany’s trademarks when it hosts auctions of counterfeit goods, the US Court of Appeals for the Second Circuit ruled in April. Te decision upholds an earlier New York District Court ruling.
Te ways in which eBay advertises its marketplace do require further examination by the lower court, as it may have broken false advertising laws when it advertised Tiffany products.
Mr Justice Floyd said: “It seems to me that the only way in which the fixture lists could conceivably attract copyright is by virtue of the collection and arrangement of the data contained in them, that is to say as a database.”
Te European Court of Justice (ECJ) found in
BHB v. William Hill that the sui generis database
right under the database directive could not apply to fixture lists as the investment by the football leagues was in the process of creating the fixture lists, not in the obtaining, verification and presentation of their contents.
Ruth Hoy, IP partner at DLA Piper in London, who represented the claimants in the UK case, says the other way of securing rights is copyright in the database itself.
She says: “Te database directive specifically recognises the possibility of databases being protected by copyright if, by reason of the selection or arrangement of their contents, they constitute the author’s own intellectual creation. Protection could be sought because of the fact that there could be copyright in the database itself. We saw an argument that we could run with that wasn’t thought of in BHB and we won.”
Compiling a football fixture list consumes not only time, says Hoy.
She says: “It may be a common belief that producing fixture lists is as easy as putting a few names into a hat and pulling them out, but a large amount of work and effort goes into it on the part of whole teams of people.”
Te football leagues and DataCo can continue to license the football fixture lists unabated, thanks to the certainty brought by the ruling, says Hoy.
Olswang LLP, which represented the defendants, declined to comment.
8 World Intellectual Property Review May/June 2010
Judge Robert Sack identified eBay as a “marketplace” and those that actually sell the counterfeit Tiffany goods as the “fraudulent vendors” responsible for the trademark infringement.
eBay is responsible for the ways in which it advertises infringing goods, the judge found: “eBay did affirmatively advertise the goods sold through its site as Tiffany merchandise. Te law requires [the appeals court] to hold eBay accountable for the words that it chose insofar as they misled or confused consumers.”
Michael Jacobson, general counsel at eBay, said: “Te ruling validates eBay’s leading efforts to fight counterfeiting and its commitment to providing consumers with choice and value in a safe and trusted marketplace. We remain confident that the one remaining issue in the case will be decided favourably on remand.”
US court rules on reverse payments
Te US Court of Appeals for the Second Circuit ruled on April 29 that a so-called ‘reverse payment patent settlement’ between pharmaceutical company Bayer and three generic drugs companies did not violate US antitrust laws.
Te court found that Bayer was entitled to pay generic companies Watson Pharmaceuticals, Barr Pharmaceuticals and Hoescht Marion Roussel to settle patent litigation that threatened to invalidate its patent for the active ingredient in the antibiotic ciprofloxacin hydrochloride (Cipro).
“ THE SETTLEMENTS MEANT NO GENERIC ALTERNATIVES TO CIPRO COULD BE MARKETED UNTIL SIX MONTHS PRIOR TO THE PATENT'S EXPIRATION”
The settlements meant that no generic alternatives to Cipro could be marketed until six months prior to the patent’s expiration in 2003; Bayer agreed to pay the defendants in return for dropping their challenges to its exclusivity.
Te plaintiffs in the current case are direct purchasers of Cipro, who allege that the reverse payment settlements amount to illegal collusion in violation of US antitrust laws. Tey further allege that the settlements artificially inflated the price of Cipro, because the lack of generic competition allowed Bayer to charge monopoly prices for the drug.
Te court said that under the Tamifoxen precedent, it had to back the legality of the settlements, but took the unusual step of recommending that the plaintiffs ask for an en banc rehearing of the case. Tis would allow the court to review the Tamifoxen standard as a whole and potentially change it.
Te two US antitrust regulators—the US Federal Trade Commission (FTC) and the US Department of Justice’s Antitrust Division—have both expressed their opposition to reverse payments, with the FTC a particularly vociferous opponent of them.
So while the court affirmed the US District Court for the Eastern District of New York’s decision in favour of the defendants in the case, it invited plaintiffs to request a further hearing before the full court.
www.worldipreview.com
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