The classified puzzle

It’s a funny coincidence that Microsoft will be pulling the plug on their little known Live Expo classified service just three days after MySpace announced that they will be ramping theirs up with Oodle. These changes are indicative of the larger trend: the classified game remains elusive for large major new entrants. Facebook‘s classified service has been less than stellar (I can’t even find a link to it right now) and Edgeio has been shuttered while Craigslist and eBay continue to dominate the all-in-one classified scene.

eBay v. Tiffany: 4 years later, eBay wins

Well it looks like eBay v. Tiffany & Co. is finally over and eBay has come out on top. This is a huge case for the web and internet commerce. The ruling means that eBay (and other web based marketplaces like Craigslist)  can continue to rely on trademark holders to monitor their site for knock-off items. Back in 2004, Tiffany’s sued eBay for damages incurred from sales of knock-off Tiffany’s jewelry being sold on eBay and wanted to limit the number of Tiffany items any one seller can have for sale at one time. While a ruling in the favor of Tiffany’s would probably never registered on eBay’s radar screen, an avalanche of money hungry plaintiffs would have followed and the precedent would have been set that eBay could be liable for trademark infringement in regards to counterfeit goods. If any damages were awarded, hypothetically, any brand that has ever had a knock-off item sold on eBay would have stood to get some cash.

In 2001, the landmark case of ecommerce, Hendrickson v. eBay, the court found eBay to not be liable for stolen or counterfeit items sold on its site. The site was found to be in the safe harbor of the DMCA, and differentiated from the classic case of the flea market proprietor found liable for selling stolen goods. eBay was found to be in the safe harbor, including robust terms of service and links for users to flag inappropriate content. At the end of the day, Hendrickson required manufacturers to be on notice and proactively search and flag stolen goods on eBay. This was a big change from the flea market paradigm of the past, but there were a lot of strange things happening in 2001. Conversely, after Hendrickson, Napster & Grokster came through, which were about copyright but pondered a similar unchartered realms of e-commerce and trade. Napster couldn’t keep 100% pirated work off the site per court order, and were forced to shut down.

If eBay had lost the case and been put in a position where they needed to comply 100% a la the Napster Trajectory, they would have been put in an extremely difficult place, because while it is easy to recognize a NBC TV clip, it is not so easy to recognize a knock-off Tiffany & Co. ring by looking at a grainy photograph. This distinction may have been what in the end saved eBay. However, while Hendrickson and Napster both made trademark claims, they were overshadowed by the copyright issues in the cases which call to the DMCA. Tiffany’s claim was strictly within trademark.

Additional coverage: AP, Marketwatch, Reuters, NYT, CNET

Tiffany v. eBay…still going

I called Judge Sullivan’s clerk last week and learned that Tiffany v. eBay is still under decision. Everything wrapped up in the courtroom ~6 months ago. Past coverage here.

Tiffany v. eBay set to begin today

The Tiffany v. eBay litigation is set to begin today (my past coverage) and traditional news sources are starting to pay attention again:

CNN Money, WSJ, Washinton Post, PC Magazine, Reuters, WSJ Law Blog (with a shout out – thanks Peter)

Tiffany v. eBay trial slated to begin November 13th

I got fed up with the 2 week delay on the SDNY Pacer system and called Judge Sullivan’s office today to find out what’s going on with the Tiffany v. eBay case. Trial is slated to begin on November 13th. The latest round of settlement conferences were a result of the case being switched from Judge Karas to Judge Sullivan last spring.

Considering the timeline thus far, I’m not holding my breath.

YouTube and the Napster trajectory, Part II

Back in May, I compared the pending Viacom suit against Google/YouTube to the trajectory seen in the infamous Napster litigation.

Recent developments: Google has introduced “YouTube Video Identification” to help rights holders monitor infringing content. Predictably, Viacom has stated that this is an inadequate step and they are still being harmed by YouTube.

Thus far, the Napster  trajectory has been followed.  To continue on the same path, Viacom will ask for an injunction against YouTube alleging irreparable harm and will ask the court to order Napster-esq 100% compliance…which is what caused Napster to shut down before the case made it into a courtroom. Only time will tell whether the injunction will be granted, what level of compliance is deemed adequate, and what level of compliance YouTube can maintain.

Interestingly, the YouTube Video Identification technology is extremely similar to the Proactive Fraud Protection service created by eBay in response to the Tiffany & Co suit they are battling (or have settled on the sly). Both systems are “tools” that IP rights holders can use. Neither system puts any responsibilities on eBay or YouTube to proactively filter content or identify improper material. Tiffany & Co. and Viacom argue that the service providers are profiting from the infringing material and should carry the burden of monitoring it. YouTube and eBay argue that there is no way for them to tell what is a real Tiffany’s ring or Friends video clip.

Tiffany v. eBay: Round 3 of settlement hearings?

Reading about eBay’s record quarter coupled with their $900 million Skype write-down inspired me to check in on the status of everyones’ favorite piece of prolonged DMCA trademark litigation, Tiffany v. eBay. Now I’ve fallen for SDNY settlement hearing documents in the past (twice), so I’m not going to get all worked up about this one either. Instead I’ll just upload a screenshot of what I see through the Southern District of New York document management tool below and you can be the judge. No documents have been linked to this round of hearings yet.

Tiffany v. eBay: more issues

The latest news on the Tiffany v. eBay  epic courtroom saga:  after +3 years, a new judge was assigned to the case.  Judge Kenneth Karas was removed from the case and replaced by “Judge Sullivan”.  It is unclear why this switch was made.  Karas’ summer vacation maybe?

Tiffany v. eBay…a 10-K retrospective

With the Tiffany v. eBay trial on hold until September, I though it would be interesting to look back on the eBay 10-K filings over the last 4 years to compare the language used regarding the danger faced from the sale of counterfeit items. eBay dedicated 159 words to the subject in 2003 and 559 words in 2006, a 3.5 x increase. It is also interesting to note that they specifically mention the dispute regarding DMCA safe harbors in 2006, something they had never done before. Tiffany & Co. filed suit against eBay in June of ’04 and made all claims based on trademark to avoid dismissal via the DMCA, which only covers copyright disputes.

eBay: 2003 10-K
Our business may be harmed by the listing or sale by our users of pirated or counterfeit items.
We have received in the past, and we anticipate receiving in the future, communications alleging that certain items listed or sold through our service by our users infringe third-party copyrights, trademarks and tradenames, or other intellectual property rights. Although we have sought to work actively with the content community to eliminate infringing listings on our websites, some content owners have expressed the view that our efforts are insufficient. Content owners have been active in defending their rights against online companies, including eBay. Allegations of infringement of intellectual property rights have resulted in litigation against us from time to time. Such litigation is costly for us, could result in increased costs of doing business through adverse judgment or settlement, could require us to change our business practices in expensive ways, or could otherwise harm our business. Litigation against other online companies could result in interpretations of the law that could also require us to change our business practices or otherwise increase our costs. (162 words)

eBay: 2004 10-K
The listing or sale by our users of pirated or counterfeit items may harm our business.
We have received in the past, and we anticipate receiving in the future, communications alleging that certain items listed or sold through our service by our users infringe third-party copyrights, trademarks and trade names, or other intellectual property rights. Although we have sought to work actively with the owners of intellectual property rights to eliminate listings offering infringing items on our websites, some rights owners have expressed the view that our efforts are insufficient. Content owners and other intellectual property rights owners have been active in defending their rights against online companies, including eBay. Allegations of infringement of intellectual property rights have resulted in litigation against us from time to time, including litigation brought by Tiffany & Co. in the U.S., Rolex S.A. in Germany, and a number of other owners of intellectual property rights. While we have been largely successful to date in defending against such litigation, more recent cases have been based, at least in part, on different legal theories than those of earlier cases, and there is no guarantee that we will continue to be successful in our defense. In addition, we expect that this type of litigation may increase as our sites gain prominence in markets outside of the U.S., where the laws may be unsettled or less favorable to us. Such litigation is costly for us, could result in damage awards or increased costs of doing business through adverse judgment or settlement, could require us to change our business practices in expensive ways, or could otherwise harm our business. Litigation against other online companies could result in interpretations of the law that could also require us to change our business practices or otherwise increase our costs. (280 words)

eBay: 2005 10-K
The listing or sale by our users of pirated or counterfeit items may harm our business.
We have received in the past, and we anticipate receiving in the future, communications alleging that certain items listed or sold through our service by our users infringe third-party copyrights, trademarks and trade names, or other intellectual property rights. Although we have sought to work actively with the owners of intellectual property rights to eliminate listings offering infringing items on our websites, some rights owners have expressed the view that our efforts are insufficient. Content owners and other intellectual property rights owners have been active in defending their rights against online companies, including eBay. Allegations of infringement of intellectual property rights have resulted in litigation against us from time to time, including litigation brought by Tiffany & Co. and Robespierre, Inc. (doing business as Nanette Lepore) in the U.S., Rolex S.A. in Germany, and a number of other owners of intellectual property rights. While we have been largely successful to date in defending against such litigation, more recent cases have been based, at least in part, on different legal theories than those of earlier cases, and there is no guarantee that we will continue to be successful in our defense. In addition, a public perception that counterfeit or pirated items are commonplace on our site could damage our reputation and our business. Litigation and negative publicity may increase as our sites gain prominence in markets outside of the U.S., where the laws may be unsettled or less favorable to us. Such litigation is costly for us, could result in damage awards or increased costs of doing business through adverse judgment or settlement, could require us to change our business practices in expensive ways, or could otherwise harm our business. Litigation against other online companies could result in interpretations of the law that could also require us to change our business practices or otherwise increase our costs. (305 words)

eBay: 2006 10-K
The listing or sale by our users of pirated or counterfeit items may harm our business.
We have received in the past, and we anticipate receiving in the future, communications alleging that certain items listed or sold through our service by our users infringe third-party copyrights, trademarks and trade names, or other intellectual property rights. Although we have sought to work actively with the owners of intellectual property rights to eliminate listings offering infringing items on our websites, some rights owners have expressed the view that our efforts are insufficient. Content owners and other intellectual property rights owners have been active in asserting their rights against online companies, including eBay. Allegations of infringement of intellectual property rights have resulted in litigation against us from time to time, including litigation brought by Tiffany & Co. and Robespierre, Inc. (doing business as Nanette Lepore) in the U.S., Rolex S.A. in Germany, Louis Vuitton Malletier and Christian Dior Couture in France, and a number of other owners of intellectual property rights. The plaintiffs in these cases seek to hold eBay liable for counterfeit items listed on our sites by third parties, for the misuse of trademarks in listings or in connection with paid search advertisements, or for alleged violations of selective distribution channel laws. Tiffany seeks, among other things, injunctive relief and damages. A trial in the Tiffany case has been scheduled for May 2007. Nanette Lepore sought, among other things, to require eBay to block all listings offering Nanette Lepore items, as well as damages. The court denied Nanette Lepore’s request for a preliminary injunction, and found that eBay’s process for addressing the listing of counterfeit items by third parties on its site was both reasonable and adequate. Nanette Lepore initially appealed the ruling, but subsequently abandoned its appeal. Other luxury brand owners have also filed suit against us or have threatened to do so. In addition, we may be subject to criminal penalties if the authorities feel we have aided in the sale of counterfeit goods. While to date we have been largely successful in defending against such litigation, more recent cases have been based, at least in part, on different legal theories than those of earlier cases, and there is no guarantee that we will continue to be successful in defending against such litigation. In particular, plaintiffs in recent cases have argued that we are not entitled to safe harbors under the Digital Millennium Copyright Act in the U.S. or as a hosting provider in the European Union because of the active nature of our involvement with our sellers, and that, whether or not such safe harbors are available, we should be found liable because we have not adequately removed counterfeit listings or effectively suspended users who have created such listings. In addition, a public perception that counterfeit or pirated items are commonplace on our site could damage our reputation and our business. Litigation and negative publicity may increase as our sites gain prominence in markets outside of the U.S., where the laws may be unsettled or less favorable to us. Such litigation is costly for us, could result in damage awards or increased costs of doing business through adverse judgment or settlement, could require us to change our business practices in expensive ways, or could otherwise harm our business. Litigation against other online companies could result in interpretations of the law that could also require us to change our business practices or otherwise increase our costs. (559 words)

Tiffany v. eBay…still going

Looks like Tiffany suit against eBay has hit yet another bump. The latest documents filed with the Southern District of New York indicate that nothing is going to happen until September.

5/5/07: “Further conf set for 6/15/07 at 12:15 pm; trial adjourned due to Judge Karas’ trial schedule; defts’ in limine motions due 5/18; response 6/1; reply 6/8.”

Then the whole case was put on hold until September 21.  Sounds like Judge Karas may have some important summer vacation plans?

Tiffany v. eBay…dragging on

Tiffany & Co. is now arguing that the 10 additional trademarks it’s trying to include in its never ending trademark litigation with eBay were not sprung on the eve of the trial and the eBay knew about them throughout the three year discovery period. The obvious counter argument seems to be that if the trademarks were included in the litigation all along, why did Tiffany & Co. feel the need to amend their complaint to include them after the discovery period. Tiffany & Co. is using Weil Gotshal, eBay is using Arnold & Porter. This has been a cash cow for the last three years for these guys…they just don’t want it to end.

Tiffany & Co.: $11M trademark bomb on eve of eBay trial

Well, it looks like they didn’t settle…and things have gotten ugly. Apparently Tiffany & Co. tried to include infringement of 11 additional trademarks on the eve of the trial, after nearly three years of discovery. eBay filed a motion in limine to exclude the trademarks from the litigation:

Defendant eBay, Inc. (“eBay”) respectfully submits this memorandum in support of its motion in limine to preclude plaintiffs Tiffany (NJ) Inc. and Tiffany & Company (collectively, “Tiffany”) from introducing evidence at trial concerning eleven Tiffany trademarks identified for the first time on the eve of trial….Despite having solely relied upon the seven trademarks mentioned in Tiffany’s Complaint for nearly three years, on April 2, 2007, in its Proposed Findings of Fact, Tiffany revealed for the first time its intention to seek damages with respect to eleven additional trademarks that have never been a part of this proceeding. Of the eleven trademarks that Tiffany is attempting to put into play, four relate to Tiffany’s packaging, advertising, and collateral materials, two relate to the word ATLAS, and five relate to ELSA PERETTI, PERETTI, and PALOMA PICASSO branded merchandise. Shortly after learning of Tiffany’s improper attempt to end-run the Federal Rules of Civil Procedure by, in effect, amending its Complaint on the eve of trial and long after the close of discovery, eBay requested that Tiffany withdraw these trademarks from its Proposed Findings of Fact and from this proceeding. Tiffany refused, asserting instead that it intends now to include these newly-introduced marks in this action and to seek statutory damages on each of them…Not only has Tiffany unduly delayed in attempting to inject the eleven new marks into this lawsuit, but its pretrial submission is highly prejudicial to eBay. Significantly; Tiffany’s newly asserted marks raise the specter of an increased damages award, as Tiffany has requested statutory damages of $1,000,000 per counterfeit mark per type of goods or services.

Tiffany’s opposed the motion.

Tiffany & eBay settlement? Round 2…

OK so I’ve fallen for the sneaky tricks of the Southern District of New York once already…and later learned that all cases there are referred to a magistrate judge to discuss settlement before going to trial. Are all cases there referred to magistrate judges twice? This I don’t know, but I know it’s happened again with this one.

This time I uploaded the doc to scribd.com here…might get some attention there, which could be interesting. Sorry I can’t embed. WP won’t let m.

eBay v. Tiffany update

I’ve mentioned in the past that I get a lot of search engine traffic from folks looking for information on eBay v. Tiffany & Co., the case pending trademark infringement case in the Southern District of New York filed by Tiffany & Co. against eBay. The case seems to be on schedule to start in trial next month (5/14). I’m guessing the result won’t hurt too much for eBay, but as I have mentioned in the past it may be the first time that a pure trademark case involving a web service/ISP has made it to court. Gucci v. Hall settled, and there the SDNY denied a motion to dismiss filed by Mindspring arguing that the CDA gave ISPs immunity for trademark violations. Sorry I have nothing spicier to report, but I thought it would be helpful to give an update.

eBay announces "Proactive Fraud Reduction" program

eBay announced yesterday a “Proactive Fraud Reduction” program. Very interesting timing with their pending court date with Tiffany’s where they are being sued by the jewelry manufacturer for trademark infringement. The announcement is extremely vague, but it seems that “items most favored by fraudsters” will not be viewable for several hours after listing. No details are given about what will happen during the lag time. I’m guessing eBay will work with manufacturers like Tiffany’s and let them approve listings before they are publicly viewable on the site. A solution like this will keep the ball in Tiffany’s court to determine whether an item is real, but will give them more control over listings than they currently have. It will be interesting to see how this works out. I’m guessing Tiffany’s will want stronger features that will put eBay on the hook for review, a result that would be a huge blow to eBay’s current model. I love the superfluous “Proactive” in the name of the program – perfect for lawyers and PR.

Proactive Fraud Reduction

Today I want to let buyers and sellers know about another security measure we’re taking. For safety reasons, items reportedly most favored by fraudsters may not be viewable for several hours before the listings are indexed into Search results. These new listings are still viewable on the site through My eBay or if you search for the specific item number; however, they are not immediately visible through a keyword search or Browse.

To maximize exposure for these listings and ensure that buyers who browse by category see these items, we’ve made an important change. Any listings impacted by this review process will appear in the “Newly Listed” sort based on when they are made visible in Search (as opposed to when they are listed.) This ensures they will appear at the top of default Browse results – as well as within the “Newly Listed” sort option for Search – where they belong.

What kinds of listings will be impacted?
Unfortunately, it’s not possible for us to give you criteria, because that information could be used by scammers to work around our Trust and Safety efforts. Overall, however, we expect this security measure to impact only a fraction of listings.

Strangely, it still seems that no one else is writing on this case. I found out about the eBay announcement because I got a spike in traffic from an eBay message board post that links to my previous posts on the Tiffany’s case. I guess I’m becoming the authority. Next step…profit!

J.K. Rowling v. eBay

Harry Potter author J.K. Rowling has gotten an Indian court to injunct eBay from selling pirated versions of the Harry Potter books. Granted the injunction is in India, but it comes at an interesting time and will return to court on May 23rd, just days after the Tiffany & Co. case, filed in June of ’04, reaches trial in the US. As noted by the Times of the UK, the Harry Potter ruling marks the first time eBay has been ordered to take affirmative steps to police items sold via its auction system.

My posts on Tiffany v. eBay actually get a fair amount of traffic from Google searches run on terms like “tiffany ebay court case”. I think this is mostly due to the fact that the mainstream press hasn’t renewed interest since the original hype back in ’04, although I’m guessing things will heat up as the May 15th court date draws closer. SDNY’s Pacer shows no action since the conference call back on December 20th.

Google in on the Tiffany v. eBay fray

A little digging revealed that Google entered the Tiffany v. eBay fray as an interested party on the side of eBay. Google attorney Ashok Ramani, partner at San Francisco litigation boutique Keker & Van Nest, applied to practice in New York State on the case (pro hac vice). Court approval of his involvement and admittance to practice law in New York is below. As is shown in the time line below, the case was referred to a magistrate court judge for settlement negotiations on 11/7/06 and the parties had a conference call with the magistrate on 12/20/06. Maybe this is standard puffery to get in good graces with the court? [Edit: turns out it is required] Strangely, the one news source that picked up on the settlement referral was this story in Women’s Wear Daily. This is a bit bizarre in light of the press coverage the case got in 2004 when it was initiated and has received intermittently since. [Edit: not bizarre at all - every civil suit in SDNY that is seeking monetary damages must go through settlement negotiations]. No news sources reported on Ashok Ramani’s involvement in the litigation.

1. 6/18/04 COMPLAINT against eBay Inc. filed by Tiffany (NJ) Inc., Tiffany and Company
2. 6/18/04 SUMMONS ISSUED as to eBay Inc.
3. 7/15/04 AMENDED COMPLAINT filed by Tiffany (NJ) Inc., Tiffany and Company.
4. 10/1/04 ANSWER to Amended Complaint with JURY DEMAND filed by eBay Inc.
5. 8/11/05 MOTION to Amend/Correct Answer to Amended Complaint filed by eBay Inc.
6. 11/3/05 NOTICE OF CASE REASSIGNMENT to Judge Kenneth M. Karas. Judge Naomi Reice Buchwald no longer assigned to the case.
7. 3/31/06 ORDER denying 14 Motion to Amend/Correct Answer.
8. 4/14/06 MOTION for Ashok Ramani to Appear Pro Hac Vice. Document filed by Google, Inc.
9. 5/4/06 STIPULATION AND ORDER; that the trial of this case shall be by the court sitting without a jury.
10. 5/11/06 ORDER granting Motion for Ashok Ramani to Appear Pro Hac Vice.
11. 11/6/06 Trial will begin on 5/14/07. Plntfs’ response to motion in limine must be submitted no later than
12. 11/20/06 Deft’s reply is due no later than 12/15/06.
13. 11/7/06 ORDER REFERRING CASE TO MAGISTRATE JUDGE. Order that case be referred to the Clerk of Court for assignment to a Magistrate Judge for Settlement. Referred to Magistrate Judge James C. Francis.
14. 11/20/06 OPPOSITION BRIEF TO MOTION IN LIMINE filed by Tiffany
15. 12/15/06 REPLY MEMORANDUM OF LAW in Support re: MOTION in Limine filed by eBay Inc.
16. 12/20/06 Minute Entry for proceedings held before Judge James C. Francis : Telephone Conference held on 12/20/2006

Tiffany & eBay settlement?

I did some digging today on the status of the Tiffany v. eBay lawsuit – the case is in Federal District Court in Manhattan, home of the handy PACER system that allows public access to court documents. I think this is where the gossip sites get their spicy celebrity court documents, although I didn’t see a mug shot link, which is unfortunate. Anyways, the case has been bogged down with answer amendments and motions in limine since 2004, but on November 11, 2007 this document was filed:

I spoke with some clerk friends who are generally knowledgeable about litigation issues – their interpretation was that while this is an indication that a settlement is possible, the fact that a magistrate judge is conducting the negotiations indicates that a settlement may very well not happen. However, as I mentioned in my previous post, if any damages are awarded via trial or settlement, any corporation that has had counterfeit goods hawked on eBay could potentially see some form of a payday if they were to follow suit. The fact that eBay is considering a settlement at all is pretty interesting.

Edit: eBay is at $33.51 today (2/9/2007). It will be interesting to see if this has any impact or if it is already baked in.

Edit 2: Stop the presses. It looks like SDNY has a mandatory settlement negotiation step for civil suits seeking monetary damages, so this doesn’t mean boo. Bummer

Tiffany & Co. v. eBay, Inc.

Last week eBay released some pretty good preliminary numbers for Q406 and 2006 as a whole:

• $6B in revenues
• $2B in operating income
• $3.5B in cash
• $1.7B in stock repurchases

• 220M eBay users, 41M new accounts
• 133M PayPal users, $38B in payment volume, 37M new accounts
• 171M Skype users, 32B minutes of dialog

Those are some pretty stunning stats. The 220M eBay users really blows me away.

There was no mention in the eBay call or in the press about the lawsuit Tiffany’s filed against eBay back in 2004, which eBay said in their Q305 10-Q was “scheduled for January 2007.” Tiffany’s is suing eBay for damages incurred from sales of knock-off Tiffany’s jewelry being sold on eBay and want to limit the number of Tiffany items any one seller can have for sale at one time. While a ruling in the favor of Tiffany’s would probably not even register on eBay’s radar screen (there are only 22 Tiffany & Co. items currently for sale on the site), it is likely that a avalanche of money hungry plaintiffs would follow. If any damages are awarded, hypothetically, any brand that has ever had a knock-off item sold on eBay would stand to get some cash.

In 2001, the landmark case of ecommerce, Hendrickson v. eBay, the court found eBay to not be liable for stolen or counterfeit items sold on its site. The site was found to be in the safe harbor of the DMCA, and differentiated from the classic case of the flea market proprietor found liable for selling stolen goods. eBay was found to be in the safe harbor, including robust terms of service and links for users to flag inappropriate content. At the end of the day, Hendrickson required manufacturers to be on notice and proactively search and flag stolen goods on eBay. This was a big change from the flea market paradigm of the past, but there were a lot of strange things happening in 2001. Conversely, after Hendrickson, Napster & Grokster came through, which were about copyright but pondered a similar unchartered realms of e-commerce and trade. Napster couldn’t keep 100% pirated work off the site per court order, and were forced to shut down.

There currently an interesting stirr with YouTube, where it seems NBC and Viacom have not reached agreeable terms with YouTube since the Google acquisition and are ordering 100% take down compliance. YouTube has not yet responded to either and has not taken any videos off their site. It is possible that they may actually be able to comply 100% if necessary. If eBay were put in a position where they need to comply 100% as well, they would be put in an extremely difficult place, because while it is easy to recognize a NBC TV clip, it is not so easy to recognize a knock-off Tiffany & Co. ring by looking at a grainy photograph. This distinction may be what in the end saves eBay and sinks YouTube like Napster before it. However, while Hendrickson and Napster both made trademark claims, they were overshadowed by the copyright issues in the cases which call to the DMCA. Tiffany’s has made a claim strictly within trademark, so it will be interesting to see how things turn out. eBay’s 10-Q for Q406 should be out soon. If they settled, expect a ton more suits, and if it’s going to court, it will probably be another 3 years before we know anything!