Since a number of people have emailed me seeking English translations of the various international rulings relating to whether eBay (or other online auction houses, of course) can be held liable when visitors sell counterfeit goods on its site, I thought I’d collect and post all the translations I have in one location. They might be easier to find this way using a search engine. If and when I obtain more, I’ll add them. (I’m not bothering with accents and the like because they’re a hassle to produce and also sometimes foil searches when the query doesn’t include them.)

BELGIUM
July 31, 2008: Lancome Parfums et Beaute (L’Oreal) v. eBay in the Commercial Court in Brussels (Tribunal de commerce de Bruxelles)
Lancome (L’Oreal) in English
Lancome (L’Oreal) in French

FRANCE:
June 4, 2008: Hermes v. eBay in the Troyes Court of First Instance (Tribunal de grande instance de Troyes)
Hermes ruling in English (This file also includes English translations of all the LVMH rulings)
Hermes ruling in French or French link

June 30, 2008: The three LVMH rulings in the Commercial Court of Paris (Tribunal de commerce de Paris):
1. SA Louis Vuitton Malletier v. eBay
Louis Vuitton Malletier in English
Louis Vuitton Malletier in French
2. Christian Dior Couture v. eBay
Christian Dior Couture in English
Christian Dior Couture in French (link)
3. SA Parfums Christian Dior v. eBay
Parfums Christian Dior in English
Parfums Christian Dior in French (link)

July 11: stay denied in Parfums Christian Dior (Guerlain) appeals by Court of Appeal of Paris (Cour d’appel de Paris)
[sorry, no English translation yet]
French link

GERMANY
April 30, 2008: ricardo.de v Rolex in the Federal Court of Justice
Rolex in English
[ricardo.de is not eBay, of course; it's a different online auction house. eBay itself was also sued by Rolex, with a ruling against eBay in April 2007 having been controlled, I'm told, by the earlier rulings in the ricardo.de case. I don't have an English translation of the actual eBay case. The German language Rolex v eBay ruling is here.]

UNITED STATES (for convenience and completeness)
July 14, 2008: Tiffany Inc. v eBay in the U.S. District Court, SDNY
Tiffany v eBay

Though eBay (EBAY) got roughed up last month in courts of France – which found the online auction site responsible for counterfeit sales –  it won big-time Monday in the court of the United States.

In a 66-page ruling, U.S. District Judge Richard Sullivan of Manhattan ruled against the venerable, New York-based jewelry company Tiffany and Co. (TIF), finding that eBay had taken reasonable and adequate steps to prevent its users from selling counterfeit Tiffany silver jewelry on its sites.

“The standard is not whether eBay could reasonably anticipate possible infringement,” Judge Sullivan wrote, “but rather whether eBay continued to supply its services to sellers when it knew or had reason to know of infringement by those sellers. . . . Here, when Tiffany put eBay on notice of specific items that Tiffany believed to be infringing, eBay immediately removed those listings.”

In effect, the court vindicated eBay’s so-called VeRO (Verified Rights Owners) program. Under that program, eBay provides brand-owners like Tiffany with software enabling them to identify specific eBay listings that the brand owner believes involve counterfeit goods. eBay then removes those listings (within 24 hours in 90 percent of the cases, and within four hours in 75% of the cases, according to evidence presented at trial last November).

Tiffany had argued that the VeRO program was simply inadequate to combat counterfeiting on the vast scale that was occurring on eBay. Its counsel performed a survey which purported to show that 73.1% of all products advertised as “Tiffany sterling” on eBay were counterfeit, while only 5% were genuine. (The remainder, 21.9%, were “imitations” that might subject the seller to liability, but they were not technically “counterfeit” because the trademark “Tiffany” did not appear on the product.)

Under the circumstances, Tiffany argued, eBay had to take proactive steps to filter out suspicious listings before they could be published.

But Judge Sullivan squarely rejected Tiffany’s argument. “The law does not impose liability for contributory trademark infringement on eBay for its refusal to take such preemptive steps in light of eBay’s ‘reasonable anticipation’ or generalized knowledge that counterfeit goods might be sold on its website. Quite simply, the law demands more specific knowledge as to which items are infringing and which seller is listing those items before requiring eBay to take action.”

An attorney for Tiffany said the company would be issuing a statement later this afternoon. eBay’s statement is available here.

Judge Sullivan’s ruling today was diametrically opposed to two that were rendered in June by trial-level courts in France. In those cases, courts found eBay liable to luxury goods manufacturers Hermes International and LVMH for having failed to prevent users from selling counterfeit versions of their products. In the LVMH case, eBay was ordered to pay more than $60 million in damages. (More remarkably still, eBay was ordered to block sales of even genuine LVMH perfumes that were being sold by unauthorized distributors. See prior posts here and here.) eBay has pledged to appeal the French rulings.

The French Court of Appeals today denied eBay’s (EBAY) petition to stay an injunction issued June 30 by a Parisian court that requires eBay to halt all sales of four LVMH (LVMUY) perfumes over any site worldwide that is accessible from France, according to an eBay spokesperson.

An eBay spokesman says the company “will comply as technically and humanly possible” with the injunction while it continues to pursue its appeal of the ruling.

In a statement, LVMH says that today’s denial of the stay “confirms the seriousness of the faults committed by eBay’s sites . . . and confirms the significance of the legal precedent set by the Paris Commercial Court’s Judgment on June 30, 2008.” It’s press release is available here.

The perfumes brands affected are Kenzo, Guerlain, Christian Dior, and Givenchy.

The lower court’s order bans not just sales of counterfeits, but sales of genuine bottles of these perfumes, because LVMH chooses to limit sales of these products to exclusive licensed distributors, and it does not permit its licensed distributors to sell over eBay.

Thus, the order bans so-called graymarket sales — sales of genuine products through unauthorized channels — which are not considered illegal in the United States, but are in France. According to lawyers for both sides, the injunction even forbids individuals from reselling genuine LVMH products that they received as gifts.

The injunction apparently takes effect immediately, and violations will be punishable by daily fines of 50,000 euros (about $80,000).

For additional details, see this prior posting. I am trying to get more information from lawyers for each side. (Here is a notice eBay has placed on its French site about today’s ruling.)

EBay (EBAY), the world’s leading e-commerce marketplace, finds out Friday if it’s been granted a reprieve from a lower court injunction that will otherwise force it immediately to change the way it does business around the world.

On June 30, the Commercial Court of Paris granted a sweeping injunction sought by LVMH Moët Hennessy Louis Vuitton (LVMUY) that would not only require eBay to block all sales of counterfeit Louis Vuitton Malletier and Christian Dior Couture products on its site — a feat eBay has claimed is not technologically feasible — but  also to block all sales of genuine LVMH perfumes being sold there by unauthorized distributors.

The latter prohibition would effectively force eBay to block all sales of the specified perfumes — Christian Dior, Guerlain, Givenchy, and Kenzo — since no licensed LVMH distributor is authorized to sell over eBay. The practice of selling genuine products through unauthorized channels — sometimes called gray marketeering — is generally lawful in the United States because it is thought to benefit the consumer.

The commercial court also ordered eBay to pay various LVMH units $60.8 million in damages for past counterfeit or unauthorized sales. The key issues presented by the decision (available here in French) are well summarized in this New York Times article. (eBay’s official statement about the ruling is here; LVMH’s is here.)

The day the commercial court ruled, eBay asked the French Court of Appeals to stay the injunctive portion of it while it appealed the rest of the lower court’s ruling. Without the stay, the injunction — enforceable by daily fines of 50,000 euros (about $80,000) — takes effect as soon as copies of the decision have been formally delivered to eBay’s headquarters in San Jose, California, and its international subsidiary in Berne, Switzerland. (It’s unclear if that has happened yet.) LVMH has agreed to postpone enforcement, however, until the Court of Appeals rules on the stay application, according to an eBay spokesperson. That court told the lawyers today that it would rule Friday.

“We have to demonstrate that the injunctions are not technically realistic, and are impossible to execute,” says French attorney Alexandre Menais, who heads the eBay business unit that deals with European trademark issues.

If the stay is denied, eBay can still seek a stay from the Cours de Cassation, the nation’s highest court, but it does not appear that LVMH will afford eBay any further grace period.

“LVMH Group do not intend to hold off enforcing the injunction,” says LVMH’s outside counsel, Didier Malka of Jeantet Associés in Paris, in e-mailed responses to questions from Fortune.

The ruling applies to all eBay sites worldwide to the extent that they are accessible from France, and not merely to the company’s French site at http://www.ebay.fr/, according to both Malka and Menais. It would even bar individuals from reselling LVMH perfumes that they had received, for instance, as unwanted Christmas presents, both lawyers say.

Menais declined to comment on what eBay will do in the short term if it can’t win a stay, except to say that eBay will, no matter what, proceed to appeal the substance of the ruling. He claims that the ruling simply does not acknowledge “the reality of the Internet,”  which has “no frontiers” and has created “a new way to consume.”

On the merits, eBay has been arguing that the French courts lack jursidiction to impose that country’s unusually restrictive commercial regulations on worldwide e-commerce. In addition, it contends that, even under French law, eBay is not responsible for the transgressions of its users because it is a mere passive provider of Internet “host” services. Such services, according to a French statute and European Community policy, are not generally considered responsible for the transgressions of their users.

The Commercial Court of Paris rejected both contentions, finding that eBay’s sites were subject to French law because they were accessible from France, and that eBay’s very active role in facilitating sales, together with the fact that it takes a commission on every sale, make it an active “broker” rather than a mere passive “host.” (Earlier in June, a different lower French court, sitting in Troyes (southeast of Paris) similarly found, in a case brought by Hermès International against eBay, that eBay was not a mere  “host,” but a “publisher,” actively involved in creating content and, therefore, responsible for what was being advertised and sold there.)

If the French appellate courts reject eBay’s appeals, it’s unclear whether eBay might be able to appeal still higher, to a European Community court. LVMH’s lawyer, Malka, says he sees no basis for such an appeal “at this stage.”

On the other hand, Jane Ginsburg, a professor of intellectual property law at Columbia Law School, says that the case may pose an issue appealable to the European Court of Justice in Luxembourg over proper application of the European Community policy against holding passive “host” internet services responsible for transgressions of users.

eBay’s Menais maintains, moreover, that eBay might also be able to appeal the French ruling to a different European court, if necessary: the European Court for Human Rights in Strasbourg, France. In that case, he explains, eBay would argue that the decision illegally restricts the freedoms of European consumers.

Joseph Berghammer, an intellectual property practitioner in Chicago, says that if the LVMH case were just about counterfeiting, he thinks it would settle. There are ways to safeguard Internet commerce, he says — for instance, through the use of third-party services that verify the authenticity of products being offered for sale — that both eBay and luxury good sellers might be willing to live with. But to the extent that Louis Vuitton is insisting on restricting sales to traditional, authorized distribution channels, says Berghammer, “then there will be no settlement.”

When they work out well, management consultants bring a fresh perspective to a company that needs one. eBay’s a strange choice for a management consultant’s fresh look, given that its senior-management ranks have been riddled with former consultants since the day Meg Whitman, who started her business career at Bain & Co., walked in the door.All the same, eBay’s new CEO, 47-year-old John Donahoe, not only is talking about challenging conventional wisdoms at the pioneering Web company, he’s actually challenging them. This is one consultant, after all, who can analyze the problem and then implement a plan.

eBay needs one.In an interview Wednesday afternoon after he was named CEO, I asked Donahoe and Meg Whitman what was right with eBay and what needed improvement. Whitman, tellingly and appropriately, deferred to Donahoe. What’s right, he said, is eBay’s “leadership position in e-commerce,” online payments and communications. By the first two he meant eBay.com, the company’s flagship property, and PayPal, the surging leader in Web-based payments. By communications he meant Skype, on which the jury remains out, certainly as part of eBay.

As for challenges, Donahoe said eBay needs to make sure it keeps up. He said eBay.com needs to make itself easier and simpler to use, that its fixed-price sales function needs to be improved and that the company must continue growing PayPal.The last goal isn’t new. PayPal has been an eBay priority for years, and Donahoe noted that PayPal has experienced three quarters of accelerating growth, the type of boast Whitman used to regularly be able to make about eBay overall. As for the first two goals, Donahoe says 2008 will be the time to prove many of the improvements eBay has been readying during 2007. The company has simplified its home page and beefed up its feedback system, particularly with regard to sellers.

Those are incremental changes, though. More critical will be a move Donahoe describes as “challenging the fundamental precepts of eBay.” For example, eBay’s search function long has listed auctions that met user’s criteria but ranked results by the auctions that would end soonest. It was the eBay way, but not necessarily the best way. Beginning this year, the company will roll out a “best match” function, already being tested in Korea and France, that will prioritize the least-costly fixed-price items with the highest seller ratings.

Earlier in the day Donahoe had told investors that eBay’s best days were ahead of it. I asked him how he could justify that optimism, considering the extraordinary past decade. His answer wasn’t quite as incisive as some of his others. “eBay has a timeless, inspiring purpose and mission,” he said. “Our broadest goal is continuing that purpose and mission and in the process build a great and enduring company.” It’s a worthy goal. And a tall order.

Skeptics and other pundits think eBay should boost shareholder value by ditching PayPal and Skype, arguably its greatest and worst acquisitions, respectively. Donahoe shared his thoughts candidly. “We like the businesses we’re in and believe in the synergies,” he said. In particular, he believes in PayPal’s ability to continue to improve the selling experience on eBay. I point out that PayPal might be able to expand its non-eBay business better with the likes of Amazon.com and Google if it weren’t owned by eBay. Donahoe thinks customers will keep demanding PayPal and that its bigger presence creates a “flywheel effect” that will counter competitive threats.It’s debatable if keeping PayPal is the correct decision, but eBay seems serious about it. The elevation of PayPal President Rajiv Dutta, eBay’s longtime CFO, to Donahoe’s former job as president of eBay seems to prove that.Donahoe seems less committed to Skype. He notes that eBay only installed its own management team at Skype two months ago and asserts that “we’re just getting around to the position where we can test the synergies.” Mark a Skype sale as to be determined.

Finally, I asked Whitman what her plans are for after March 31, when she steps down as CEO. She’ll remain on the board of eBay, where she plans to focus her energies in 2008. She’s also a director of Procter & Gamble (PG) and Dreamworks (DWA). She’s working on her family’s new foundation and also as a national finance chairman for Mitt Romney, a personal friend from her Bain days. Asked what she’ll do in 2009, she responds, “I don’t know about that.”

A tradition at eBay is that the people who work with its senior executives get to name their personal conference rooms. The meeting place belonging to John Donahoe, the top executive for eBay’s core online marketplace, is Dennis the Menace. If the Wall Street Journal’s sources are right and Donahoe is named the next CEO of eBay when Meg Whitman retires, he’ll likely start causing mischief almost as soon as he’s in the top job.

Donahoe isn’t nearly as well known as Whitman, the public face of eBay (EBAY) for a decade. But he’s no newbie. He’s been at the company for nearly three years now — a tough three years given that he presides over eBay’s thorniest problem, its slow-growth online sales engine. eBay’s missed opportunity is gargantuan. Compared with Amazon.com’s (AMZN) business, for example, eBay.com enjoys a well earned monopoly and the rich profit margins that come from holding no inventory. Yet, as I’ve commented recently,  competitors like Amazon and Google (GOOG) have out innovated eBay, decimating its stock. (Meg Whitman claims to not follow eBay’s stock price. Read my account of the company mid-malaise, about a year ago.)

There already are signs Donahoe has taken the reins at eBay. In early December he spoke at a UBS conference and hinted strongly that major changes were afoot in eBay’s fixed-price sales business. eBay’s sellers have felt nicked and dimed by the company for years. Donahoe suggested that eBay will tinker with its pricing model by lowering upfront prices and raising closing commision fees. The lowering part spooked Wall Street, even if it’s the right thing to do. (It’s a lot like economic stimulus: Lower taxes in hope of expanding the economy. eBay’s not the U.S. government though … if it lowers upfront fees and doesn’t convert the sale its revenues go down.) An insidery writeup of Donahoe’s talk appeared here.

The other big decision facing Donahoe is what to do with PayPal, the eBay-owned payment business that is roaring. Late last year PayPal quietly juiced up its management team, making four key hires of prominent executives who worked at blue-chip companies including Avon (AVP), American Express (AXP), McKinsey, Oracle (ORCL) and Visa. PayPal’s growth engine is its business selling services to online merchants other than eBay, making eBay’s ownership of PayPal less necessary. It’s hard to imagine that PayPal was able to attract such top talent by offering stock packages merely in eBay stock options. Asked if the news was evidence that eBay was planning to spin off or sell PayPal, a PayPal spokeswoman responded: “This shows the caliber of people that want to leave fantastic jobs at fantastic companies to come to PayPal. There are no plans to change PayPal’s structure within eBay.”

The question remains what John Donahoe will do at eBay, assuming he gets the job. (I used to think Jeff Jordan had a lock on the job; I was wrong.) Donahoe is quite literally the Mitt Romney of the Internet world. He’s a Bain consultant through and through, a handsome guy with a gigantic Rolodex (note to kids: that’s where people Donahoe’s age, 47, used to keep their contacts; it’s now a metaphor) and a bias toward action.

Be certain of one thing, should the man insiders call Dennis the Menace get the job, expect some mayhem in the near term.

Bloomberg News reported earlier in the week that eBay (EBAY) finance chief Bob Swan was asked at a CSFB technology conference whether eBay would sell Skype, the computer phone calling service it bought three years ago for far too much money. The question followed the slimmest of rumors on a British newspaper’s Web site: “Currently in favour around London’s webbist community is the rumour that Google (GOOG) has been in negotiations to buy Skype,” wrote Guardian blogger Jemima Kiss. (Great name!)

According to my own reporting in the “webbist community” in Silicon Valley, Swan discussed the wrong prospective asset sale. He should have addressed whether eBay would sell PayPal. It’s no secret that PayPal is blazing, and it’s so-called off eBay business, the payments it processes for non-eBay transactions, is becoming an ever-larger part of PayPal’s overall business. (For a detailed and highly readable overview of eBay’s business, including a comparison of its “marketplaces” and “payments” units, see Swan’s own pre-Q&A presentation at the CSFB conference.)

Two different Silicon Valley investors, in separate conversations this week, pointed out to me the embarrassment that Amazon (AMZN), with its market capitalization of $37 billion, had caught up to — and effectively surpassed — eBay (market cap: $45 billion), if you take out the value of PayPal. Ebay is a natural monopoly, the far-and-away leader in online auctions and carries no inventory. Amazon is a retailer with slim margins and a not easily defended business. The easiest way for eBay to reward its investors, they argued, would be to spin off PayPal, a move eBay management will never acknowledge considering — until the day a plan is announced. (A tip of the hat, by the way, for the second day in a row to the insightful Web site breakingviews.com, which examined the eBay breakup scenario on Nov. 7.)

Surely there are companies out there that could make better use of Skype than eBay has. But selling it won’t give eBay’s stock the pop it needs. Setting free PayPal might.

What with all the exciting stuff going on in the Web world of late — Google (GOOG) laying a rare earnings turd, Facebook becoming the next Google, Yahoo (YHOO) losing altitude fast — a morsel from eBay’s (EBAY) earnings call last week was undereported. CEO Meg Whitman, vowing to rejuvenate eBay.com’s core listings, promised to market more offline. She also commented briefly on eBay’s recent spat with Google. Consider this from the New York Times:

Last month, eBay temporarily stopped buying keyword advertising on Google, the Web’s largest search engine. EBay said the suspension did not have had significant effect on its bottom line. “We learned a great deal from that test,” Ms. Whitman said. “It actually had no impact on the financials of the quarter, and we learned a lot about where we want to spend money and where we think we can save money on Internet marketing.”

Think about that. eBay, once and perhaps still Google’s largest advertiser, saying that perhaps online advertising isn’t all it’s cracked up to be anymore. That’d be fine, say, if Procter & Gamble (PG) decided it had had enough of this newfangled form of advertising. But not eBay, an Internet pioneer. Internet advertising taking a back seat to offline marketing? The horror, the horror.