District Court dismissal of direct and contributory infringement by eBay affirmed, dismissal of false advertising vacated and remanded back.
Very very quick summary after one quick reading: eBay has ‘general knowledge’ that for its Tiffany listings, some unknown percentage was counterfeit (not 95% but not zero). However, it doesn’t specifically know whether any particular listing is counterfeit, until Tiffany tells it so. That’s the key to the holding. Because the contributory infringement language of the Supreme Court Inwood case requires that the defendant had knowledge that ONE (emphasis by court) third party is continuing to infringe, eBay didn’t have the requisite knowledge that any ONE particular customer was infringing (until Tiffany brought it to eBay’s attention, at which point eBay took down the listing). Thus Ebay didn’t allow infringements to continue after it had actual knowledge of any particular infringement. Also, the court declined to hold that the ‘general’ knowledge that eBay had that some (or even most) listings were counterfeit, rose to the ‘have reason to know’ prong of the Inwood test.
However, with regard to the false advertising count, to the extent that eBay advertised general Tiffany listings, to the extent that eBay advertised that TIFFANY jewelry could be purchased on eBay, the implication was that ALL such jewelry was genuine, which eBay knew not to be true. So the false advertising count will be remanded to the district court to reconsider.
UPDATE: good discussion of 43(a) issue, especially wrt problems of proof via 43(B)log.

Tiffay v Ebay 2d Cir