Luxottica sues landlord of indoor flea market for contributory infringement, after landlord fails to stop on-going sale of counterfeit Ray-Bans and Oakleys. $1.9 million judgment upheld by 11th Circuit. Held:

(1) A defendant is liable for contributory TM infringement if defendant (1) intentionally induced the direct infringer; or (2) supplied a product to the direct infringer whom it knows or should have known is directly infringing;

(2) A landlord can be said to be ‘supplying a product’ under this analysis;

(3) 11th Circuit joins consensus of circuit courts that ‘willful blindness’ is a form of constructive knowledge;

(4) 11th Circuit holds that there can be constructive knowledge of specific infringing acts. – The 11th Circuit distinguishes a landlord from eBay in Tiffany v, eBay – While the 2d Circuit held that it could not be said that eBay should have known which of its millions of listings were counterfeit, here, the landlord of a mini-mall should have known (after there had already been a police raid),that among its 130 or so tenants, some were counterfeiters – the volume of tenants was not so high, and no expertise is needed to know that $15 and $20 Ray Bans are counterfeits.

Query: note the comparison of number of listings in eBay (who could perform a search), to number of tenants in a mall, and not the number of products that those tenants sell.

Luxottica Group, Oakley v. Airport Mini Mall, LLC, 15-cv-01422-AT:

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