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Should eBay be responsible for fake goods on its site?

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If you bought L’Oreal products on eBay which turned out to be fake would you think the seller or eBay is responsible? In 2009 the courts ruled eBay shouldn’t be accountable but a new ruling could change all that…

Until now, sites like eBay could not be held responsible for the sale of counterfeit goods. So sellers could sell non-genuine goods without the online site being accountable for the sale.

But that could now change. The European Court of Justice yesterday ruled that online marketplaces like eBay could be liable for counterfeit goods sold on its websites.

The court stated that any online retailer who played an ‘active role’ in promoting counterfeit goods could be held liable for trademark violations.

The ruling is the latest in an ongoing battle between eBay and the cosmetics brand L’Oreal. L’Oreal argues that eBay’s practice of purchasing search engine keywords, which target its trademarks and products, effectively promotes the wares of trademark infringers.

You might be ‘worth it’ but are the goods?

I once bought a bag ‘in the style of’- I think was the carefully-worded phrased – Louis Vuitton. It was 10 years ago and cost £35. Now at that price I knew I was buying a fake or something that would only loosely resemble a Louis Vuitton bag. However, if the bag had cost hundreds of pounds and been described as an all-singing-and-dancing true Louis then I’d feel very differently about the issue.

But I’m not quite sure who I’d expect to take responsibility if I’ve bought a fake item believing it to be real – the seller who provided the fake item or eBay. And I’m not sure whether I’d expect them to be jointly liable, but I like to think a website like eBay would have suitable knowledge and control over the sellers to admit some responsibility.

Can you spot a fake?

I’ve always had a fair amount of luck purchasing goods on online auctions. If I’m honest, most of my flat is furnished in goods negotiated on eBay. I do my best to suss out the seller, and if I’m not happy that the item is as described on the site I’ll let the seller know (oh yes, I know my rights under the Sale of Goods Act).

Luckily I’ve managed to resolve any issues I’ve had direct with the seller. A genuine seller will want to maintain the reputation and do their best to sort the problem out for you.

But I’m wondering if online auction sceptics would have renewed faith if they felt the site would be held accountable. Do you think these sites can genuinely claim they’re not aware they’re selling counterfeit goods?

Comments
Member

I would certainly have more faith in ebay if this ruling was applied having received 2 fake items from ebay sellers who subsequently deleted their accounts. It wasn’t for very much (a rare cd – copied + a t-shirt) but it was enough to put me off ebay for ages.

I only use it now to sell my old bangers, works a treat for that.

Ebay generally got tiresome though, even if you drill down to exactly the items you want, there were still plenty of items like badges, accessories, generic items all listed in the specific category.

Member

As long as eBay ( and the likes) provide an easy and quick way for suspicious items to be flagged and removed quickly then they shouldnt be liable.

However there is also a danger that “large companies” will attempt to stop the sale of any of its goods online , even 2nd hand items from private sellers, by bombarding eBay with claims of “possibly fake”.

I do think ebay could do more in enforcing the requirements for name and address details to be displayed by sellers who are obviously “in business”.

Member
john.mccolgan says:
19 July 2011

Difficult this one, if u buy goods from a franchise operating within a large department store which subsequently turn out to be unfit for purpose or fake then who do u sue? The department store or the franchise holder who may well have disappeared?
Surely ebay is the same as the department store. My personal view is it’s up to the department store or ebay to vet the vendor before allowing them to use the premises or the auction site however are they liable in law? I sense lawyers starting to salivate lol

Member
Carter says:
19 July 2011

I received a fake PS3 controller, and initially the seller was very apologetic, and said it was an honest mistake. However he spun it out for more than 60 days by a combination of late replies and my holidays at which point he ceased communication. It urned out that this is the period at which Ebay and Paypal cease to care, so I had to get a refund from my credit card company who were very good.

Member

Normally the retailer should be responsible for what it sells. So is eBay a retailer or is it simply an on line portal for retailers? If you purchased a fake item from an advert in a local newspaper, is that newspaper liable?

I think the answer has to be no to those questions. The purchaser has to gain redress from the seller or on failure from the credit card or Pay Pal.

But eBay (and the local newspaper) should take some responsibility in ensuring that sellers are genuine and that they should investigate and ban sellers when cases of miss-selling are proven.

The purchasing of key words does muddy the waters though. Is eBay doing this to increase its own business or is it being paid by the sellers to help promote the sellers’ businesses? If it is the former, then this is no different than a newspaper advertising itself to increase its own circulation. If it is the latter, then L’Oreal is correct and eBay has overstepped its position.

Member
moaner says:
20 July 2011

i think Ebay should buy the most faked items from random sellers and pass on any fakes/sellers details to police just to keep dodgy sellers aware of the consequences.

Member
Fred says:
20 July 2011

Similarly to a previous post,If I put a note in a newsagent’s window selling my car, you can hardly blame the newsagent if my tyres are bald. Likewise if I place a misleading ad in a magazine, I am liable for misrepresentation, not the magazine. So how is eBay different to this? I think they should make sure they know the identity of the seller and that any legitimate complaints are supported by them fully by providing evidence and document trails for the police but beyond that, why should they be liable for other people’s criminality? The same goes for all the attempts to sue isp’s for uploaded content. No one tries to sue BT for what is said over their telephone lines!

Member
fred spurgin says:
29 August 2011

There is currently someone in hong kong selling fake FREY WILLE jewellery, I mean he is listing hundreds of these (the originals are expensive) from about a dollar up. I have reported it to ebay several times but absolutely no action at all being taken by the looks of it. I can see some bids at the equivalent of 40 pounds sterling plus and in reality they would be worth probably 5 at the most.

Member
dana says:
22 June 2015

Hello Fred,

Could you please let me know how you recognize a fake Frey Wille?
I am about to buy one tomorrow and I just want to be sure is a true Frey Wille.

Thank you!