Shedding Light on ‘Willful Blindness’: Brandy Melville v Redbubble

In the case of Brandy Melville v Redbubble, a three judge appellate panel explored whether an owner of an online market place is liable for contributory trademark infringement. Scott Hervey and Jamie Lincenberg discuss this on this episode of The Briefing. Watch this episode on the Weintraub YouTube channel here. Show Notes: Scott: On today's episode of The Briefing, we will be taking a dive into the Willful Blindness Doctrine which is highlighted by a recent filed opinion in the case between Redbubble and YYGM doing business as Brandy Melville, in which a three-judge appellate panel discussed what legal standard the district court should apply when examining whether an owner of an online marketplace is liable for contributory trademark infringement, which is committed by artists who sell products on its marketplace. I'm Scott Hervey of Weintraub Tobin, and I'm joined today by my colleague, Jamie Lincenberg. Jamie, thank you for joining us today. Jamie: Thank you, Scott. I'm happy to be here. Scott: Jamie, can you provide a quick recap of the lawsuit? Jamie: Absolutely. In 2021, Brandy Melville, a popular manufacturer of clothing, home goods, and other items, sued Redbubble for trademark violations alleging infringement of its registered Brandy Melville heart mark and La lightning mark. The defendant, Redbubble, owns and operates an online marketplace where artists can upload their own work to be printed on various products and then sold. Unlike other print on demand vendors, Redbubble outsources everything other than marketing and payment processing, so third party users upload their images, and third party manufacturers and other vendors produce and ship the ordered items. The district court had found Redbubble liable for one willful contributory counterfeiting of the heart mark and the lightning mark, two contributory infringement of those two marks, and three contributory infringement of unregistered trademarks that were Brandy Melville variations. After the jury's verdict, the district court granted Redbubble's motion for judgment as a matter of law on the contributory counterfeiting claim for the heart mark. The district court let the verdict stand for the remaining claims, and it denied Brandy Melville a permanent injunction, attorneys fees, and prejudgment interest. On Monday, the 9th Circuit appellate panel overturned much of the lower court's findings and remanded for reconsideration of Redbubble's motion for judgment as a matter of law, telling the district court to use the correct legal standard for what constitutes willful blindness, the doctrine we will explore in more detail today. Scott: This panel's opinion vacates the district court's order granting in part and denying in part Redbubble’s motion for judgment as a matter of law, and also vacated the district court's denial of Brandy Melville's motion to permanently enjoin Redbubble from referencing, mentioning, and or using Brandy Melville, brandy Melville's registered trademarks and Brandy Melville's unregistered trademarks. In reversing the lower court with respect to Redbubble’s contributory infringement liability, the panel held that a party is liable for contributory infringement when that party continues to supply its product 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 that infringement. So how do we determine whether a party is willfully blind to infringement? Jamie: In agreement with other circuit courts,