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Should eBay be responsible for fake goods on its site?

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Profile photo of Charlotte Fitzgerald Charlotte Fitzgerald New Initiatives Manager
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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
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dean says:
13 July 2011

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.

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rarrar says:
13 July 2011

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”.

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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

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Mick says:
4 September 2018

The store! It is the point of sale in that scenario! As for ebay thay are absolutely lineal for any counterfeit goods, fakes and illegal goods or services being sold on their site! If you where to receive stollen items or even just advertise them for someone else, would you be held liable? The answer is absolutely yes you would in fact be facing the strong possibility of a custodial sentence! The fact that now the majority of items on eBay are imported from China seeming to avoid all legal checks, tariffs, etc. And be devoid of meeting any standards as well as being advertised on the country of where you live (ie in the uk) makes them one of the largest facilitator of illigal goods! Ebay also say they hold no responsibility for this in their eyes. Again which seems to suggest a double standard system as they are allowed to sell and profit from the sale of iligal goods but if joe blogs does it, even completely innocently you will be told ignorance is not an excuse and arrested!

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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.

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terfar says:
19 July 2011

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.

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Mick says:
4 September 2018

Absolutely wrong! Sorry but if illigal goods are sold and you are the facilitator then you are as guilty in the eyes of the law as the person knowingly doing it! And so you should be! Ignorance is not an excuse and in the case of ebay they do very little but seem to make billions of the sale of millions of iligal items I would say that most of the items on eBay now are illegal counterfeit goods mostly shipped in from China! Again illegally! But eBay seem to carry on getting away with it and make money from these illigal sales!

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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.

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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!

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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.

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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!

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William says:
28 October 2011

I was sold a counterfeit ipod via ebay and when I reported it to ebay I quickly found out that they are in cahoots with paypal and will not refund or help in any dispute. It took trading standards to find the seller acting illegally but ebay still lets them trade to this day. I recently reported a counterfeit nintendo DS being offered on ebay(actually most of them on ebay are counterfeit or graded items) and ebay responded to me saying that they had removed the item from their site, however they left other counterfeit listings from the same seller on the site. I can only think that ebay is only interested in the commission they get and don’t really care how its made. I think ebay should be made responsible for allowing counterfeit and stolen items to be listed as they are playing a part in passing on fake goods. Most counterfeit items are fairly obvious from the description and from where in the world they are sent from. It can easily be stopped if needed.

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brian says:
27 September 2012

Ebay now decides if a seller has to take a return and many times refunding the money without the seller’s approval…in my opinion once ebay steps into the transaction of the returning process they are indeed involved in the transaction the same as if they themselves sold the item..

I think in order for ebay to say we are just a “venue” for buyers and sellers to gather and buy and sell goods..they must stay completely out of the process. They can and do impose rules and ban sellers that do not comply…but they should not be able to tell or coherce any seller how to run their business..they are pushing for everyone to take returns…and if that aint enough..they will even send you an e-mail so many days after your purchase to ask you if all was fine or if you had a problem,because remember you are covered under ebay’s buyer protection…what about ebay’s seller protection…it’s non-existant..dont get me wrong they will cover you on credit card fraud if you can prove you sent it to the correct address and followed the right procedure..paypal will cover you.

What about the buyers that buy something and then just decide they no longer want it,so they say item not as decribed..this is a case that the buyer will win everytime!!…i don’t care if you sell something brand bew sealed,they will use it,break it and claim not as described and guess what…ebay/paypal will side with them they usually have to return the item,on their dime and you are out the sale of the item and also the shipping no matter how expensive it was for you to ship…not too mention ebays dsr crap they have going now.

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wavechange says:
27 September 2012

There are a lot of rogues selling goods on eBay so it has been necessary to give the buyer more protection. For example, some sell fake goods – the subject of this Conversation. If eBay stayed out of the transaction, few would risk using buying.

There are other services that you can use.

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barny says:
6 April 2013

I used to sell on ebay guides on buying gold and spotting fake gold but ebay banned me from doing it. I regularly report the fake, counterfeit and copyright gold items that ebay sell but they never remove them as they make staggering profits from such a lucrative and high value trade in fake items. Not much i an do about it though as theres no one to report it to. ActionFraud is an online database for recording only and ebay dont care.

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wavechange says:
11 December 2016

Here is a rather obvious fake product currently on sale on eBay.

For those who are not familiar with BS 1362 fuses (the type used in UK mains plugs), there is no approved 15 amp fuse, so the one pictured is obviously counterfeit. The approved fuses are 1, 2, 3, 5, 7, 10 and 13 amps. Thankfully the company does not post to the UK.

Counterfeit fuses can also be found in shops.

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ashley says:
21 September 2018

its illegal under British law to knowingly assist or facilitate a crime , so eBay are fully responsible for allowing any seller who has been reported for selling fakes to continue selling in my opinion.
the same as i would be if say i had a online selling business and allowed people to by fake football shirts through it via a 3rd party.

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