Lower courts have since disagreed somewhat over what exactly satisfies the ?know, or has reason to know? standard.
Fonovisa v. Cherry Auction, 76 F.3d 259 (9th Cir. 1996), the Ninth Circuit Court of Appeals held that a flea market operator could not ignore, ?with impunity,? the actions of its vendors who were ?blatantly? engaging in trademark infringement. In another case, Gucci America, Inc. v. Hall & Associates, 135 F. Supp. 2d 409 (S.D.N.Y. 2001), the District Court for the Southern District of New York refused to grant an ISP?s motion to dismiss in a case involving instances of trademark infringement occurring on a subscriber?s website hosted by the ISP. There the plaintiff allegedly had sent two e-mails to the ISP regarding the alleged infringement, but the ISP failed to take any action. Collectively, these few cases suggest that an OSP could be found contributorily liable for acts of trademark infringement. In any such suit, one of the main issues would be to what extent the OSP knew, or should have known, of the infringing acts? That is to say, what did the OSP do to police its service, or w
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