July 10 roundup

  • Hearse driver in HOV lane to highway patrol: you mean I can’t count the corpse as a passenger? [Michelle Lou, CNN]
  • “Caterpillar Now Going After All The Cats For Trademark Cancellations” [Timothy Geigner, TechDirt, earlier]
  • Before trying to open a storefront business in San Francisco you might look to this advice from commercial real estate brokers about the city’s zoning and permit hurdles, and please quit using words like “bonkers” or “flabbergasting” [Robert Fruchtman Twitter thread]
  • “Lawyer engaged in ‘sustained campaign of unfounded litigation,’ disbarment recommendation says” [ABA Journal; Waukegan, Illinois]
  • Breaking from two other federal appeals courts, Third Circuit rules that Amazon as a platform can be sued under strict liability principles over defective items sold by third-party vendors on its site [Brendan Pierson, Reuters] Should the ruling stand, implications for online marketplaces are dire [Eric Goldman]
  • New challenges for Mathew Higbee, high volume copyright enforcement lawyer, and his clients [Paul Alan Levy, more, earlier]


  • The Amazon case may not affect other online marketplaces depending on the breadth of any ruling. Amazon sells both its own products and third party products. Third party products are only indicated by a small “sold by” note. While all products which are not eligible for Amazon prime shipping are third party, a large number of third party products are fulfilled by and shipped by Amazon.

    Thus third party products largely look like they are sold by Amazon, so liability might make sense. This likely also applies to retailers who also sell third party products online such as Walmart.

    Strict online marketplaces such as eBay and Etsy may not be affected depending on the breadth of any ruling. These marketplaces do not sell products directly, all sales on the website are by third party sellers. Yet eBay started out only providing a marketplace. Payment, shipping, returns, etc. were between the buyer and seller (with the only quality control the user’s feedback score). Today eBay handles most (all?) payments, largely requires shipping be done through the site, and enforces other requirements on sellers. So in one sense they are responding to customer demand for a more regulated market and in another sense have provided the groundwork for a lawsuit arguing they are responsible for the quality of products sold on the site.

    • That brings up an interesting edge case, of proxy buyers. Someone in the US wants something that’s only sold in, say, Japan (ex., P-Bandai model kits), and uses a proxy buyer service to have someone in Japan buy it and send it to them in the US. There are a couple ways the logistics can be handled, but in at least some the proxy takes ownership of the goods before re-shipping them. Functionally similar to the “fulfilled by Amazon” items. How this ruling affects liability in that case could be interesting, though it may be niche enough to not truly concern anyone.

  • In the CAT trademark matter, it’s fascinating that all the other 125 trademark holders were never confused by their clients for each other, nor do they appear even to have worried about it.