This was posted on the pp board early this morning, it will be interesting to fallow this case.

eBay is being hauled into court over its "only a venue" status.

Tiffany claims that eBay has not only infringed on its trademark, it profits from the 73% of "Tiffany" eBay listings that the company says are counterfeit. Its position is that because eBay profits every time a fraudulent Tiffany item is sold on its site, it is in effect acting as a fence in facilitating the sales. Tiffany wants eBay to be legally obliged to police its site.

eBay's standard defense is 'No way, we're only a venue'. This stance has proved successful in previous lawsuits because under the Digital Millenium Copyright Act, a marketplace is protected from copyright infringement as long as it removes the infringing item when notified by the copyright owner (thus, the VERO program).

Tiffany's lawyers avoided this pitfall by filing a lawsuit for trademark infringement, which isn't covered under the DMCA - eBay is going to have to come up with a different justification for its hands-off-everything-but-the-fees practices to defend itself against this one.

It will be interesting to see if Tiffany's legal team offers in evidence eBay's many policy restrictions as proof that when it wants to, eBay does indeed act as far more than just a disinterested "venue".

The case is expected to go to trial before the end of this year.