Contract and Trademark Matters - U.S. Second Circuit
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Contract and Trademark Matters

Israel v. Chabra, No. 06-1467, involved an action to enforce an agreement guaranteeing a debt.  The court of appeals vacated judgment for plaintiff, holding that the Consent Clause of the agreement constituted advance consent to the Second Amendment establishing a new payment schedule for the debt, defendant's obligations as Guarantor were not discharged by the adoption of the Second Amendment, and the payment schedule in the Second Amendment controlled.

Tiffany (NJ) Inc. v. eBay Inc., No. 08-3947, involved an action by Tiffany Inc. against eBay based on sales of counterfeit Tiffany merchandise on eBay, alleging trademark infringement, false advertising, and trademark dilution.  The Second Circuit affirmed judgment for defendant in part, on the grounds that 1) a defendant may lawfully use a plaintiff's trademark where doing so is necessary to describe the plaintiff's product and does not imply a false affiliation or endorsement by the plaintiff of the defendant; 2) for contributory trademark infringement liability to lie, a service provider must have more than a general knowledge or reason to know that its service is being used to sell counterfeit goods, and some contemporary knowledge of which particular listings are infringing or will infringe in the future is necessary; and 3) there was no second mark or product at issue here to blur with or to tarnish "Tiffany."  However, the court vacated in part as to plaintiff's false advertising claim, because the district court failed to determine whether extrinsic evidence indicates that the challenged advertisements were misleading or confusing.

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