Easily digestible tech news... http://www.techdirt.com/ en-us http://www.techdirt.com/images/td-88x31.gifhttp://www.techdirt.com/ Tue, 2 Aug 2011 13:18:00 PDT Mike Masnick http://www.techdirt.com/articles/20110726/11441915263/makeup-companies-run-into-legal-trouble-too-much-photoshopping-not-enough-photoshopping.shtml http://www.techdirt.com/articles/20110726/11441915263/makeup-companies-run-into-legal-trouble-too-much-photoshopping-not-enough-photoshopping.shtml banning certain cosmetics advertisements including Julia Roberts and Christy Turlington, because the images are way too Photoshopped. The ASA says that ads can't mislead, and the makeup company (in this case L'Oreal) did not provide enough evidence that the digital alterations did not, in fact, mislead.

Now, this story was interesting on its own, but what made it even more interesting is that another makeup firm, Estee Lauder, seems to be in a legal dispute, for the exact opposite reason. Ima Fish recently alerted us to the news that model Caroline Louise Forsling had sued the company for the following advertisement: She claims that the photo was just a "test shot" before any makeup was applied, and was for a different product. She claims that the showing of her untouched-up face on the left has 'irreparably' damaged her career. Of course, in suing over this, she effectively admits that the image on the left is the untouched-up image. She could have just as easily told people that the right-hand side was the "real" image, and the left-hand one was digitally altered, and gotten on with her life.

Either way, it should be noted that in both of these stories, they're about supposed "anti-aging" products, and I guess it shouldn't come as a surprise that digitally altering images is how such products are advertised, rather than showing any actual before and after shots, because I imagine "real results" are likely to vary from what's seen in any of these ads.

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]]> damned-if-you-do,-damned-if-you-don't http://www.techdirt.com/comment_rss.php?sid=20110726/11441915263 Wed, 13 Jul 2011 01:06:25 PDT Mike Masnick http://www.techdirt.com/articles/20110712/17123815072/eu-court-disagrees-with-pretty-much-every-other-court-says-ebay-may-be-liable-third-party-trademark-infringement.shtml http://www.techdirt.com/articles/20110712/17123815072/eu-court-disagrees-with-pretty-much-every-other-court-says-ebay-may-be-liable-third-party-trademark-infringement.shtml
In the US, the war has been waged by Tiffany, which resulted in a big fat loss at the appeal court level and no interest from the Supreme Court in hearing an appeal. The courts correctly and smartly pointed out that general knowledge that people infringe via the site is not enough to say that the site should have to police the products -- especially since it had no clue how to tell what was really infringing and what was legit. Furthermore, Ebay bends over backwards to take down counterfeit products when it becomes aware of them, and also has a whole program to make it easier for trademark holders to alert the company of counterfeit goods.

In Europe, the battle has been waged by L'Oreal. And, even though European governments and courts seem to have a more welcoming view towards third party liability than US courts, for the most part, L'Oreal has lost many, many times in Europe (it's filed similar lawsuits in a whole bunch of countries). However, it appears to have finally found a slightly sympathetic court.... and tragically, it's the European Court of Justice (the top European Court), which has ruled that Ebay can be liable in certain cases, if it's determined (a) that the goods for sale target the EU market, if the company is considered to have played "an active role" and if it "has enough information" to determine that the use is infringing. Now this isn't quite as bad as some of the press have made it out to be, as the Court still says there are protections... but it does outline key exceptions to those protections, and the key question is on which side of the line Ebay falls.

Ebay claims that it's in compliance and thus not guilty of such infringement, but I'm sure L'Oreal will be pushing the case back in the specific court (this is the UK case). Still, just opening the door like this to a rather subjective standard of "active role" and having "enough information" to know that something is infringing, seems wide open to abuse... and could lead to Ebay making its service a lot less useful, just because some luxury brand giants hate competing.

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]]> not-this-again http://www.techdirt.com/comment_rss.php?sid=20110712/17123815072 Mon, 29 Jun 2009 20:24:00 PDT Mike Masnick http://www.techdirt.com/articles/20090628/1658455390.shtml http://www.techdirt.com/articles/20090628/1658455390.shtml a bunch of different countries trying to get a court somewhere to admit that eBay is somehow liable for actions of its users. To date, it's been a clean shutout against L'Oreal, who has lost cases in Belgium, the UK and France (I believe cases are still pending in Germany and Spain, though it's hard to keep up). The ruling in France was the biggest surprise, given that French courts have ruled the other way in the past. Given that, it looks like L'Oreal isn't done yet on its home turf, as it's appealing the ruling in France. At some point, one would hope that L'Oreal would realize that going after eBay is targeting the wrong party, but it appears that no one at L'Oreal seems all that interested in actually understanding the issues, and wants to see how many shots it can get at making eBay pay up.

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]]> can't-stop http://www.techdirt.com/comment_rss.php?sid=20090628/1658455390 Tue, 26 May 2009 02:35:48 PDT Mike Masnick http://www.techdirt.com/articles/20090523/0020384988.shtml http://www.techdirt.com/articles/20090523/0020384988.shtml Belgium last summer, the company filed nearly identical lawsuits in the UK, France, Germany and Spain, hoping that somewhere one of those courts would side with it. So far, it's not looking good. Two weeks back, even France sided with eBay, even though it had ruled otherwise in similar cases. And now comes the news that late last week, the UK sided with eBay as well. At some point, will L'Oreal finally realize that maybe it's barking up the wrong tree?

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]]> if-you-fail...-just-sue-elsewhere http://www.techdirt.com/comment_rss.php?sid=20090523/0020384988 Wed, 13 May 2009 23:13:33 PDT Mike Masnick http://www.techdirt.com/articles/20090513/1231204874.shtml http://www.techdirt.com/articles/20090513/1231204874.shtml good about recognizing that eBay is not liable for eBay users selling counterfeit goods on the site, France in the past had gotten the story backwards, saying that eBay was liable, even though the actions were by its users, not by eBay itself. However, in a rather surprising move, a French court has actually sided with eBay against L'Oreal in a similar case. This is a surprise -- but a good one. This is L'Oreal's second loss in such cases against eBay. It lost another such case in nearby Belgium -- but (of course) has also filed similar lawsuits around the globe, hoping that at least one of those courts will side with it over eBay. Hopefully, all of them take notice of how both Belgium and France have ruled, and recognize that this is not eBay's liability.

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]]> getting-it-right http://www.techdirt.com/comment_rss.php?sid=20090513/1231204874 Tue, 10 Mar 2009 15:22:00 PDT Carlo Longino http://www.techdirt.com/articles/20090309/1359574045.shtml http://www.techdirt.com/articles/20090309/1359574045.shtml isn't liable for the actions of people who use its site to sell counterfeit goods, though a recent decision went the other way. This situation reflects the lack of uniformity around the world in this type of case: for instance, eBay was found liable in France, but was not in Belgium. In the Belgian case, eBay was sued by cosmetics maker L'Oreal, but the company hasn't let the ruling slow it down, as it's now filed a similar suit in the UK. It's also sued eBay in France, Germany and Spain -- which could lead one to believe that it's jurisdiction shopping, simply filing suits in many different countries and seeing what sticks, with the hopes that victory in one place will force eBay to play ball worldwide. The issue of eBay's lack of liability as a platform provider remains an important one, but the problem of international jurisdiction shopping remains a massive one for companies online.

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]]> you-can-even-shop-for-jurisdictions-easily-online http://www.techdirt.com/comment_rss.php?sid=20090309/1359574045 Wed, 13 Aug 2008 13:00:40 PDT Mike Masnick http://www.techdirt.com/articles/20080813/1209031965.shtml http://www.techdirt.com/articles/20080813/1209031965.shtml appealed the correct US ruling that eBay isn't liable for counterfeit goods sold on the site, a Belgian court has sided with eBay in a very similar lawsuit involving L'Oreal. Apparently, the Belgian courts understand how liability works a lot better than their neighbors in France, who ruled the other way in a case involving Louis Vuitton.

L'Oreal says it's "surprised" by the decision and will appeal, but fails to explain why eBay, as a platform maker, should be responsible for what people do with that platform. About the only answer seems to be that L'Oreal recognizes eBay is an easier target than going after those actually responsible (those selling the counterfeit goods). It's nice that most courts recognize that the easiest entity to sue is not necessarily the proper entity to sue.

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]]> another-good-decision http://www.techdirt.com/comment_rss.php?sid=20080813/1209031965