Brandy Melville v Redbubble: Navigating Contributory Infringement

Brandy Melville has asked the Supreme Court to review the 9th Circuit's decision in its dispute with Redbubble. Scott Hervey and Jamie Lincenberg discuss this case on this episode of The Briefing. Watch this episode on the Weintraub YouTube channel here.   Show Notes: Jamie: This past summer, we analyzed the willful blindness doctrine, which was highlighted by the 9th Circuit's decision in the case of Redbubble, Inc. Versus Y.Y.G.M. doing business as Brandy Melville. The 9th Circuit in that case refused to hold Redbubble liable for contributory infringement because Redbubble didn't know, or have reason to know of specific incidents of infringement by its users. The matter seems settled, but Brandy Melville has asked the Supreme Court now to review the 9th Circuit's decision, which now causes a circuit split. I'm Jamie Lincenberg of Weintraub Tobin. We're going to talk about this update in the Brandy Melville Redbubble dispute on this installment of The Briefing. Scott: I'm Scott Hervey of Weintraub Tobin. Jamie, welcome back to The Briefing. Jamie: Thank you, Scott. It's great to be here again. Scott: So before we dive into Brandy Melville's petition for assert to the Supreme Court, can you take us back through the history of the case? Jamie: So this dispute began in 2018 when Brandy Melville, the popular clothing retailer, brought a trademark infringement suit against Redbubble, an online marketplace that allows independent artists to upload their own designs for on-demand printing on various items of merchandise. Brandy Melville had found products on Redbubble's website that infringed their company's trademarks. Scott: Initially, the district court had found Redbubble liable for both willful contributory counterfeiting of the marks and contributory infringement. Then, on appeal, the 9th Circuit appellate panel overturned much of the lower court's findings, holding that a party is liable for contributory infringement when it continues to supply its products to one whom it knows or has reason to know is engaging in trademark infringement. And a party only meets this standard if it is willfully blind to infringement. In short, willful blindness requires the defendant to have knowledge of specific infringers. General knowledge of infringement on the platform is not enough. Jamie: This decision for the first time defined the 9th Circuit's legal standard for contributory liability, and it really heightened the hurdle for brand owners to establish contributory infringement. Now, six months later, Brandy Melville argues that the appellate court was wrong in its holding and has asked the Supreme Court to review the 9th Circus decision that liability for user-submitted trademark infringement only stands when there's specific knowledge of the infringement. Scott: Brandy Melville argues in its petition for rid of Cert. That the 9th Circuit has adopted an erroneously narrow view of such liability and points to the Second Circuit and the 10th Circuit, where once a defendant knows or has reason to know that it is assisting in trademark infringement, it has a legal duty to take reasonable steps to stop it? The attorneys for Brandy Melville argue that the 9th Circuit's decision has no basis in background principles of common law and effectively flips the burden of ensuring compliance with the law from the defendants to the plaintiffs. In its writ for Cert. Brandy Melville argues that the issue is whether the defendant must know or have reason to know to trigger such liability. In particular, is contributory trademark liability limited solely to a defendant's knowledge of and failure to redress specific instances of infringement or infringers, as the 9th Circuit holds? Or does it extend to a defendant's knowledge that it is assisting infringement of the plaintiff's trademark and fails to take reasonable steps to stop such assistance as the Second and 10th Circuit holds in. Jamie: