David Canton’s editorial in The London Free Press outlines cases in the U.S. and Europe that have come to very different conclusions.

The controversy centers around who is responsible for policing a trademark.  The U.S. says the company is, European cases indicate that e-Bay might be responsible.

Canton explains,

Therefore, in the U.S., EBay cannot be held “pre-emptively” responsible for trade-mark infringement just because some of its sellers are advertising and selling fake goods. Prevalent public policy in the U.S., now recognized by the courts, instead puts the responsibility onto the trade-mark owner, most often the giant manufacturers.

He also points out potential implications for the Google/Viacom suit.