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:[embeddoc url=”https://www.schwimmerlegal.com/wp-content/uploads/sites/833/2019/09/luxottica-v-airport-mini-mall-1.pdf” download=”all”]