eBay Sued for Failing to Take Down Listings–Hansson v. Brower
By Eric Goldman
Hansson Inc. v. Brower, 4:07-cv-05898-CW (N.D. Cal. complaint filed Nov. 21, 2007)
In my Cyberspace Law course, I teach students that they should not just consider the liability of the person who committed the allegedly tortious behavior, but they must always ask who else is liable for that behavior. We saw that principle illustrated recently in the ISC2 v. Degraphenreed case, where Google and Yahoo got pulled into a trademark lawsuit for hosting some content that allegedly infringed the plaintiff’s trademark.
Today’s case in point is Hansson v. Brower, a seemingly garden variety trademark enforcement action. Hansson makes dollhouse furniture and claims that Brower is selling competitive items under the Hansson name via eBay, so Hansson is suing Brower for trademark infringement, dilution and related causes of action. But Hansson goes further. Hansson claims it sent 8 takedown notices to eBay and that they were all ignored and that it sent a C&D letter and that too was ignored. So Hansson has added eBay as a defendant for contributory trademark infringement.
Some questions I have:
1) What happened to those 9 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?
2) What is the appropriate legal standard for eBay’s liability? This is a big open question mark in Cyberlaw. 230 doesn’t apply by its terms to federal trademark claims, and 512 only applies to copyright. eBay might be able to claim the innocent printer/publisher defense in 15 USC 1114(2), although Hansson has alleged that eBay has the requisite scienter to negate “innocence.” So at the moment, 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. We’re closely watching the Tiffany v. eBay lawsuit in NY, which is an analogous lawsuit, but we don’t have any useful precedent from that yet. So should eBay be liable if they actually received notice of infringement and failed to take down the noticed auctions? Perhaps.
3) Even so, was it wise to drag eBay into this otherwise ordinary enforcement lawsuit? As I explored with the ISC2 lawsuit, suing eBay ensures that a well-funded litigant with good lawyers will be on the defense side. I swapped emails with James Cai, attorney for Hansson, asking him why he named eBay, and he said the goal 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.