Charles R. Macedo is a partner at Amster, Rothstein & Ebenstein LLP, and the author of 
The Corporate Insider’s Guide to US Patent Practice, which provides a basic understanding of patent practice in the United States as it relates to both obtaining and enforcing patents. Macedo’s practice specializes in all facets of intellectual property law including patents, trademarks and copyrights. In the article below he looks at the Tiffany v. eBay case. Read his other OUPblog posts here. [FN: The author wishes to thank Michael J. Kasdan for his thoughtful comments on this blog entry]
One of my favorite parodies is Weird Al Yankovich’s song, “I Got It On eBay.” It reminds me of the largest garage sale outlet ever conceived, where one person’s garbage becomes another person’s gold. Anyone can hawk their old things (usually at a discount), but perhaps at a better price than one could expect by offering it on their front lawn on a sunny weekend afternoon in May.
Unfortunately, not every item sold on eBay is authentic. The large numbers of counterfeit items is a source of consternation to purveyors of authentic luxury items, apparel and consumer goods.
Over the past few years, a series of litigations have been commenced by luxury good manufacturers (such as LVMH and Tiffany and others) against eBay, seeking to hold eBay liable for damages associated with actual counterfeit sales made through its website. These cases raise the important questions of whose burden it is to police eBay for counterfeit items, and whether eBay should pay damages associated with actual counterfeit sales made through its website.
The results of these cases have been dramatically different. Some courts, most notably in France, have found that eBay should bear significant responsibility when counterfeit items are actually sold on its websites. Other courts, most notably the Federal Court in New York, have found that the precautions eBay has taken are sufficient and place a heavier burden on the brand owners to police their own marks.
In my own parody of Charles Dicken’s A Tale of Two Cities, I previously authored an article comparing the French and New York treatment of this issue entitled “eBay: A Tale of Two Defenses”, IP Law360, August 22, 2008 (available at www.arelaw.com).
On April 1, 2010, the U.S. Court of Appeals for the Second Circuit (located in New York City) weighed in on this issue, affirming for the most part the decision that eBay’s activities (at
When I was in Florida recently, I visited the Charles Hosmer Morse Museum in Winter Park. It houses the largest collection of Tiffany art in the world. My husband is a stained glass artist, and we’ve been fans of Tiffany for years.
There was a display at the Morse focusing on Tiffany the artist and his life. Included in the exhibits was Tiffany’s “sketchbook” from his first visit to Europe in 1865 when he was sixteen. Titled, “My First Visit to Europe,” it contained beautiful pencil sketches of such scenes as “Arab with Reed Instrument,” “The Baths of Caracalla—Rome” and “A Street in Chester, England.”
Let me repeat—the boy was sixteen. Maybe seventeen.
I always get depressed when I see someone else’s finely-crafted journal or scrapbook. I can create images with words—period. And never perfect the first time. If ever.
My mother-in-law used to create these beautiful scrapbooks with photographs and hand-drawings and calligraphy and give them out to family members and friends. My friend Jan is a talented writer, artist, and papermaker, and her journals are exquisite records of her life.
Me, I have journal envy. My handwriting is abysmal, I can’t write in a straight line, and only the advent of computers saved me from a lifetime of working with stencils. (I bet about half of you don’t even know what stencils are).
Jan gave me this beautifully-crafted journal with handmade paper. And I’ve yet to write anything in it. Nothing ever seems good enough. I’ll think, “This is a really beautiful journal, and I don’t want to waste it with inadequate and poorly-chosen words.”
So it never gets written in.
I so have to get over this. I so deserve to write in a beautiful journal, right? Right.
So I went into the museum gift shop, and they had beautiful blank journals with Tiffany’s autumn vine window on the cover. They were carefully hand-stitched, with creamy, thick pages that would soak up the ink. So I bought one, saying to myself, You are going to write in this.
Here is what I would like to say: And that’s just what I did. In fact, the essay you’re reading right now was written in that book I bought at the gift shop.
But, no. I lied. I wrote this on the computer so it’d be easy to edit. Multiple times.
Sigh. Still not good enough…
My late mother and teaches in my grade school used stencils. I even used stencils on occasion; though come to think of it, I haven't seen any lately.
I have a special journal that I jot down only fleeting ideas that come to me, nothing else. Sometimes those little ideas turn out to be blessings in disguise: answers to a current plot problem.
Cinda, you and I have the same warped idea that whatever we write isn't good enough.
I want to tell you: the Wizard Heir is absolutely brilliant! I'm not even half-way through and I feel like I'm fighting the same battles as Seph. I expect the ending will have exploding rockets!
I completely sympathize with you about writing in journals. Actually, about writing anything longhand. My advice? Print the essay and paste it in!
Barbara, maybe we can join a program--we'll call it Never Good Enough. It's so bad I want to go back in the books that are already published and edit them with sticky notes.
Nora, thanks, that sounds like good advice. I'm actually a very fast typist--used to type for a living.