The Briefing Podcast: Shedding Light on Willful Blindness in the Online Marketplace

In a recent legal development that has captured the attention of the intellectual property world, a three-judge appellate panel has explored the intricacies of the willful blindness doctrine within the context of contributory trademark infringement. This thought-provoking case involves the legal dispute between online marketplace giant Redbubble and YYGM, trading as Brandy Melville. The legal discussion at hand offers valuable insights into the evolving landscape of online trademark infringement liability.

The lawsuit centers around a complex web of contributory trademark infringement claims. Brandy Melville, a well-known manufacturer of diverse products, including clothing and home goods, filed a lawsuit against Redbubble in 2021. The crux of Brandy Melville’s allegations pertains to the unauthorized use of its registered trademarks, notably the Brandy Melville heart mark and La lightning mark. Redbubble, a platform where independent artists can upload their creations for print-on-demand production, was accused of enabling trademark infringement through its marketplace.

The district court’s initial ruling found Redbubble liable for various forms of contributory trademark infringement. However, a subsequent 9th Circuit appellate panel opinion reversed several key findings, sparking a comprehensive discussion on the willful blindness doctrine. This doctrine posits that a party can be held liable for contributory infringement if it remains willfully blind to instances of infringement by individuals or entities utilizing its platform.

Willful Blindness

A central aspect of the appellate panel’s ruling was the determination of what constitutes willful blindness in the context of online marketplaces. The panel clarified that mere general knowledge of trademark infringement on a platform, even knowledge of the plaintiff’s trademarks, is insufficient to establish willful blindness. Instead, a defendant must possess specific knowledge of infringing instances or infringing individuals. This aligns with similar conclusions reached by other circuit courts, including the Second, Fourth, and Tenth Circuits.

The landmark case of Tiffany Inc. v. eBay Inc., involving counterfeit Tiffany jewelry on eBay, stands as an illustrative precedent. The Second Circuit emphasized that a service provider’s liability for contributory trademark infringement necessitates more than general awareness of counterfeiting on its platform. This precedent reaffirms the importance of specific knowledge to trigger liability under the willful blindness doctrine.

In the course of deliberation, the appellate panel examined the companion ruling of Atari Interactive v. Redbubble. This ruling underscored the significance of evidence relating to specific instances of infringement. Notably, the court highlighted Redbubble’s reasonable response to notifications of infringement, where infringing listings were promptly removed. This approach was deemed reasonable and indicated that Redbubble had not deliberately avoided acquiring knowledge of infringement. Redbubble lauded the panel’s decision as it reinforced the platform’s role in fostering a space for independent artists to showcase their creations.

Needed Clarity

The Redbubble vs. Brandy Melville case has shed light on the intricacies of the willful blindness doctrine in contributory trademark infringement cases involving online marketplaces. The Ninth Circuit’s decision has provided clarity on the specific knowledge required for a marketplace to be held liable and has emphasized the importance of notice and takedown principles in this context and the need for specific knowledge of infringement to trigger liability, offering guidance for online platforms like Redbubble, Amazon, and eBay. As the legal community continues to dissect this significant development, it is essential for online marketplaces, rights owners, and legal practitioners to remain vigilant and informed about the implications of this ruling, and it is evident that further cases will help refine the parameters of the willful blindness doctrine in the digital age.


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3 comments so far.

  • [Avatar for Anon]
    September 15, 2023 05:39 pm


    I suppose a question (given the requirements of Notice Pleading) is: “HOW” specific.

  • [Avatar for Scott Hervey]
    Scott Hervey
    September 15, 2023 12:23 pm

    Josh, not if the brand owner provides specific information about the infringement. It’s incumbent on the brand owner to be specific about the acts of infringement.

  • [Avatar for Josh Malone]
    Josh Malone
    September 15, 2023 10:41 am

    So dragging your feet is a defense to contributory infringement?