"in commercial advertising or promotion, misrepresenting the nature, characteristics, qualities, or geographic origin of his or her or another person's goods, services or commercial activities."
A claim of false advertising may be based on at at least one of two theories (Time Warner Cable v DIRECTV (2007)):
- that the challenged ad is literally false
- that the ad, while not literally false, is nevertheless likely to mislead or confuse consumers
- eBay's use of Tiffany's mark was protected, nominative fair use
- Tiffany has not proved that eBay had specific knowledge as to the illicit nature of individual listings. This finding by the district court implied that specific knowledge was necessary to sustain a false advertising claim.
- To the extent that the ad was false, that falsity was the result of and the responsibility of the vendors, not eBay.
- Just because eBay's use may have been nominative fair use does not mean that the use was not also in a misleading ad.
- eBay's knowledge of infringing activity does not have an relevance on whether the ads were misleading "in so far as they implied the genuineness of Tiffany goods on eBay's site."
- eBay affirmatively advertised goods sold through its site as Tiffany merchandise by hyperlinks and purchases of sponsored ads. This is the case irrespective of the counterfeit goods being supplied by the vendors, not eBay.
Tiffany will still have a difficult time in providing sufficient evidence that indicates that the ads were misleading or confusing to consumers. Readers may recall that the other survey evidence produced by Tiffany during the summary judgment stage that indicated at about 71% of 'Tiffany' goods on eBay were counterfeit. This survey evidence was "methodologically flawed and of questionable value" and "provided limited evidence as to the total percentage of counterfeit goods available on eBay." Tiffany will have a massively high hurdle to surmount in ensuring that their evidence produced regarding the misleading or confusion nature of the ads does not fail where their other survey evidence did. Additionally how many consumers would really be mislead into thinking that an eBay ad stating "Tiffany on eBay (one such potential consumer - picture right). Find Tiffany items at low prices..." means that "all goods purporting to be Tiffany on eBay are genuine"? And how would Tiffany go about producing evidence that shows that which are not methodologically flawed? How could you phrase a question to a consumer that showed could show this evidence? Any statisticians out there with any thoughts?