Tiffany

Describes motivation process for creativity with emphasis on intrinsic motivation by Corey K Katir

Filed under: Jewelry, Sports

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Filed under: Jewelry, Sports

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Filed under: Apparel, Jewelry, Holiday Guides
We already covered gifts for mom so this list is geared for the other special woman in your life, your wife or girlfriend. It definitely leans to the romantic and personal (no vacuum cleaners or washing machines here) but some things, like cashmere and laptop bags, are universally appealing and would be great for a friend, sister, or neighbor as well.

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Filed under: Jewelry, Holiday Guides
Giving jewelry as gifts for the holidays is something we highly encourage at Luxist. We love all that sparkles. One of our favorite regular features is jewelry design — we love to showcase the up-and-comers who aren’t yet as famous as, say, Tiffany and Harry Winston. Still, finding the right designer with the right price range for you can be difficult, as there’s a sea of new designers every year to sift through. Here’s our guide to the best of the best under-the-radar jewelry designers whose collections we recommend for the 2010 holidays. Each designer has fresh, enchanting pieces with that timeless je ne sais qoui which will last a lifetime.

The Luxist Top Ten Up and Coming Jewelry Designers for the Holidays 2010

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Online aggregators, site operators and search engines are in a seemingly endless conflict with content providers and rights owners. This extends to trademark law. The confrontation relates to deciding what obligations aggregators (and others) have to police and prevent advertising and sale of counterfeit products or services through their systems. A recent Second Circuit case leaves one pondering the answer where at least some of the advertised products or services from third parties are counterfeits.

As with copyright and patent, indirect liability exists under trademark law, although there are very few reported cases dealing with it. The Supreme Court described the concept as follows:

if a manufacturer or distributor intentionally induces another to infringe a trademark, or if it continues to supply its product to one whom it knows or has reason to know is engaging in trademark infringement, the manufacturer or distributor is contributorially responsible for any harm done.

Inwood Laboratories, Inc. v. Ives Laboratories, Inc., 456 U.S. 844, 102 S.Ct. 2182, 72 L.Ed.2d 606 (1982).

This formulation facially refers to supplying products and does not specifically address whether access and service providers (such as Google, Bing, eBay) also have potential liability. Generally, however, the concept has been extended to service providers, at least where the service provider has sufficient control and can monitor the instrumentality or conduct involved in the infringement.

      The Second Circuit in Tiffany (NJ) Inc. v. eBay, Inc., 2010 WL 1236315 (2^nd Cir. 2010), assumed without deciding that the concept applied to eBay’s auction services, but concluded that eBay was not indirectly liable for what is apparently a very large amount of sales of counterfeit Tiffany products by auction sellers. The issue turned on whether eBay’s generalized knowledge that numerous counterfeit sales under the Tiffany occurred on its site was sufficient for liability. The court held that, while the applicable standard involved knowledge or reason to know of the infringing conduct, mere generalized knowledge did not suffice. Instead, for “contributory trademark infringement liability to lie, a service provider must have more than a general knowledge or reason to know that its service is being used to sell counterfeit goods. Some contemporary knowledge of which particular listings are infringing or will infringe in the future is necessary.” This, of course, is a win for the aggregators et. al. In practice, eBay maintained an active program of responding to notices of claimed infringement as to specific products or sellers. Thus, there was no pattern of eBay continuing to provide its site or services to persons it had reason to know were infringing the Tiffany mark.

      Tiffany sets out a narrow interpretation of contributory liability, giving broad freedom for aggregators and enhancing the difficulty of enforcing a mark online. The court did, however, provide two important grounds for caution applicable to access and service providers. 

First, it emphasized that its concept would not allow a provider to adopt a policy of “willful blindness.” Exactly what that means remains to be seen, but it suggests that some policing obligation arises if the environment involves widespread (albeit not universal) trademark infringement. eBay had a very active program of responding to infringements. The court commented:

[We] agree with the district court that if eBay had reason to suspect that counterfeit Tiffany goods were being sold through its website, and intentionally shielded itself from discovering the offending listings or the identity of the sellers behind them, eBay might very well have been charged with knowledge of those sales sufficient [for liability]. A service provider is not, we think, permitted willful blindness. When it has reason to suspect that users of its service are infringing a protected mark, it may not shield itself from learning of the particular infringing transactions by looking the other way.

      A second caution for service providers came in the court’s treatment of a claim that eBay engaged in false advertising under the Lanham Act when it advertised that Tiffany products were available for purchase on its site. Liability here can come either because of literal misrepresentation or because the advertising, “while not literally false, is nevertheless likely to mislead or confuse consumers.” While there was no proof of literally false advertising (some products sold on the site as Tiffany products were in fact Tiffany products), the court believed that the advertisements might be deceptive and confuse consumers by suggesting that all of the products sold as Tiffany products were genuine. It remanded the case for consideration of this issue. On the policy question of whether creating this liability risk would place too heavy of a burden on online commerce, the court commented:

eBay and its amici warn of the deterrent effect that will grip online advertisers who are unable to confirm the authenticity of all of the goods they advertise for sale. We rather doubt that the consequences will be so dire. An online advertiser such as eBay need not cease its advertisements for a kind of goods only because it knows that not all of those goods are authentic. A disclaimer might suffice. But the law prohibits an advertisement that implies that all of the goods offered on a defendant’s website are genuine when in fact, as here, a sizeable proportion of them are not.

Online advertisers and aggregators live in a world where intellectual property is important, and their conduct should reflect that. Simply being an online service does not absolve one from respecting and protecting another person’s property rights.

One clear message of intellectual property law is that mere possession, or even ownership, of a product or a copy does not vitiate the rights-owner’s interest in and right to control use or disposition of the product or copy. First sale doctrine carves out a very limited exception to this.

I often talk about first sale (or exhaustion as it is sometimes called) in reference to patent or copyright law. Trademark issues may be even more important, at least online. As with copyright and patent law, the theory behind the doctrine in trademark law in part involves defining what it means to own an item, and in part places restrictions on the intellectual property owner’s right to control the secondary market in goods for which the mark owner decided to authorize an unrestricted sale.   On the other hand, even after an unrestricted sale, the doctrine preserves many of the mark-owner’s interests with respect to its mark and the product.

An owner of a genuine and unmodified item purchased at an authorized sale may resell the item, describing it appropriately, even if doing so requires use of the trademark. Thus, if I own a Dell Laptop computer, I have the right to sell it describing it as a “Dell” computer. The right to accurately describe the resold property comes from first sale doctrine and from concepts of nominative fair use.  

            Issues about first sale or fair use almost never arise where the reseller sells only one item. They arise when the reseller resells multiple items. In this setting, where the items resold are unused, the reseller may become the direct competitor of the mark owner and its authorized dealers. The question is under what conditions trademark law permits this. Viewed from the mark owner’s perspective, this involves its ability to control marketing channels for its product, including the online marketplace, and to protect its trademark.

            Not all resale activity is allowed even if the reseller owns the item. 

Trademark owners’ protected interests that continue to apply relate to maintaining the trademark as identifying the source of the goods or services involved, which is the bedrock of trademark law. The balance then is between allowing the reseller to deal with its property while preventing confusion as to its immediate source or denigrating of the value of the mark. 

The most commonly litigated limitation centers on whether the reseller creates the appearance of a relationship between it and the mark owner. Basically, while the reseller can use the mark to describe the product it resells, the reseller cannot create the impression that it acts with the sponsorship or authorization of the mark owner (unless, of course, that is true). Thus, while a used car seller can sell and advertise that it sells Mercedes cars, it cannot falsely convey the impression that it is a Mercedes authorized dealership. 

Some settings make clear that no sponsorship is present. For example, in Tiffany (NJ), Inc. v. Ebay, Inc., 576 F.Supp.2d 463 (SD NY 2008) the court held that Ebay and its auction resellers of genuine Tiffany products were protected by first sale concepts even though the sellers referred to their products as Tiffany and Ebay advertised the availability of Tiffany products on its auction website. In context, there was no reasonable inference that Tiffany sponsored, authorized, or was in control of the sales of Tiffany products in this environment. 

            Lines are drawn based on language and context. Thus, in another online case, text on a site reselling diet supplements from various manufacturers originally commented as to one manufacturer that “we” are engaged in various steps. This would have established a claim that affiliation was being suggested, but the text was removed.

            Small words often make big differences.

            The cases also present issues associated with the mark owner’s obligation to monitor the quality of goods or services offered under its mark. This translates into the rule that the first sale doctrine does not apply to resale where material changes have occurred in the product. An unlicensed difference between two products bearing the same trademark is material if it “confuses consumers and impinges on the trademark holder’s goodwill.”

The material changes that vitiate the first sale defense vary. They often relate directly to changes in the product (e.g., reprogramming an aspect of software), but can apply to other elements related to it, such as warranty terms. The mark owner has a continuing interest in controlling changes that on resale diminish or, even, simply alter the product in a manner relevant to the customer, while still using the trademark. Changes, when not clearly made known to the customer or the public as not coming from the mark owner or with its endorsement, threaten the goodwill built up by the manufacturer and diminish the ability of the mark to identify the source of goods and the predictable quality.

The limited right to use a mark without implying affiliation or sponsorship by the mark owner extends into all marketing systems, online and otherwise. Thus, keyword advertisements or metatags may fall within the protective scope of the first sale and related fair use protection, unless circumstances create the appearance of an affiliation between the reseller and the mark owner or what is being sold is a materially altered product. Needless to say, however, this does not give the online vendor the right to a site that is named Dell Computers and sells Dell along with Toshiba etc.

So the message for online and other vendors is the same here as in patent and copyright law. Merely “owning” a product or a copy does not give unlimited rights in it when intellectual property interests are involved. The IP rights remain dominant.

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