Holding the platform liable causes a net increase in the cost of all goods sold. Putting responsibility on the brand only increases the price of specific goods.

Some reflection reveals that the real dispute in the Tiffany case was over who should bear the cost of policing Internet platforms. Such platforms will inevitably attract counterfeiters of all types. While the platform owner has an interest in keeping such goods off its site to avoid alienating customers, determining which of millions of items offered for sale are counterfeit is very costly. On the other hand, the trademark owners feel, with some justification, that having created a marketplace that draws counterfeiters, the site owners should be the ones tasked with absorbing the cost. They would also incur very significant expense if they have to hire staff to monitor sites for listings every day, scrutinize each one, and then send notifications to the site operator.

There is no "right" answer to the question, but we would note that if the site owner absorbs the costs, they will be spread over all users of the site, including those who have no interest in the category of goods at issue. On the other hand, if the trademark owner has to pay the policing costs, only the price of the genuine goods will go up. A Tiffany locket will cost a bit more because there is a "catch-the- counterfeiters" surcharge built into the price, but the price of toasters or laptops or steak knives sold on eBay wouldn't be affected. As between the two populations, we think the purchaser of the specific trademarked goods is the more appropriate group to absorb the cost, but we fully recognize that reasonable minds could differ.