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SHAPIRO: Let’s just take a step back and discuss the trademark issues here. I reduced tiffany necklaces that clothing designs, for example, cannot be trademarked, but something like the Louis Vuitton logo can. Where’s the line there?

Prof. SPRIGMAN: Well, clothing designs are not subject to trademark protection and they’re not, on the whole, subject to copyright protection either. And in the fashion industry – at least in the U.S. – you have a practice of relatively free appropriation, so fashion designers are free to take inspiration from other designers.

And this has been a good thing in the States, because the fashion tiffany uses copying to set trends and trends are what encourages consumers to buy apparel. But we have trademark law that protects logos, like Louis Vuitton’s mark, and that’s a different thing. And the law properly prohibits it.

SHAPIRO: So the line there is you could make a Louis Vuitton-style bag?

Prof. SPRIGMAN: Yes. And in fact Dooney & Bourke, which is another company that makes bags, does exactly that. They make a Louis Vuitton-style bag and instead of saying LV on it, it says DB. And Louis Vuitton has sued them, and Louis Vuitton has consistently lost.

SHAPIRO: Tell me about the difference between bags made by Louis Vuitton and the laws that govern them as compared with Tiffany jewelry, for example. Are the laws different if we’re talking about a diamond ring as opposed to a handbag?

Prof. SPRIGMAN: Well, again, the case in New York – the reduced tiffany pendants case against eBay – involves Tiffany products, accessories, jewelry, that are protected by trademark. The difference is that the rules for whether eBay can be held liable for trademark infringement in the States are much narrower than in France. What Tiffany would like to do is they’d like to establish a rule that because eBay knows that some auctions might involve trademark infringement, that they have a general duty to police every item that is offered for auction on the site.

SHAPIRO: It sounds like if eBay were required to police every item offered for sale on its site, that would just be logistically impossible, I would imagine.

Prof. SPRIGMAN: Well, eBay has one and a half billion listings or so annually. Again, they’re the wrong party to police. The more effective policeman is Tiffany, but they don’t want to spend the money policing. They’d like eBay to spend the money policing.