The Liability of Online Markets for Counterfeit Goods: A Comparative Analysis of Secondary Trademark Infringement in the United States and Europe

Abstract

The incidence of counterfeiting and trademark infringement has surged with the widespread use of online marketplaces, such as eBay, the Internet auction platform. As a result, such sites have faced a steady stream of lawsuits brought by prominent trademark owners in United States and European courts in connection with the sale of counterfeit merchandise. In this paper we analyze and compare the current state of U.S. trademark law on secondary liability of online markets for the sale of counterfeit goods and compare it to the law of the European Union and the domestic laws of several European countries where courts have addressed the issue, offering divergent approaches to the scope of secondary liability.

Keywords: trademark infringement, secondary liability, e-commerce, on-line auction, host-provider

JEL Classification: K19, K33