Hello sellers!
Before I share information, I would like to mention that I am extremely familiar with eBay's VeRO program. I know of 'the list', the proper word usage for non-branded items to avoid trademark infringement, not to use pictures that do not belong to me. I also know my rights under the First Sale Doctrine, I've read through countless forums here and on other sites of VeRO takedowns and the dos and don'ts. I've read through eBay's policy page and the rights it grants to intellectual property owners and all of the different types of infringements. I've also read extensively about why eBay created the VeRO program and why they need to have it for themselves. I've been around the block - and I mention this because you may look at my feedback score and think I'm some beginner seller with no idea what they're talking about, or I simply am not familiar with how to list items compliantly according to intellectual rights. Long story short, I'm familiar with the VeRO program very well, more well than I would like to be if I'm being honest.
Today I received another glorious VeRO takedown notice from Electrolux for selling one of their branded water filters, the ULTRAWF. I've sold dozens of ULTRAWF filters, so this being taken down is a first. I always receive them from Amazon because the box is damaged and/or the filter itself is damaged. So I sell them as new without an original box. Never been a problem, for over a year in fact. Today's VeRO takedown was a bit different from others. If I was going to receive a VeRO for this item, I'd expect Electrolux to make a counterfeit claim for an unauthorized item. If there is one thing I've learned from selling on eBay, companies can and will deem any item counterfeit, whether it is or not, as a way to eliminate the resale world, while also stomping on sellers rights in the process. It is an extremely easy process for them, too. The best part about it for them is there is no if, ands, ors, or buts. Most of the time, the item is 100% legit, too. You as a seller cannot say anything about it or appeal to it in any way possible. You just take the hit, and the future hits until you inevitably get permanently banned. Now, don't go thinking "Oh, well you can appeal a VeRO takedown by filing a counter notice through eBay if they don't respond to your email within 5 days." because this won't work. The counter notice ONLY applies to Copyright infringements. If it is a violation for an infringement other than a copyright, your only chance of appeal is through the email given in the VeRO message. Anyone who tries that I wish luck even getting a response. They are legally not obligated to respond to anything.
So this is the VeRO takedown I expected to receive when I first saw the item was removed, but then I was surprised to see I received a VeRO Patent Policy infringement takedown. A patent policy... I infringed on Electrolux's patent rights for selling their filter. If this is the new normal VeRO takedown route companies will take, what stops literally any company from taking down listings for infringing on patent rights? According to Cornell Law School, a patent infringement is "Violation of a patent owner's rights with respect to some invention. Unless permitted by the patent owner, one commits patent infringement by making, using, offering to sell, or selling something that contains every element of a patented claim or its equivalent while the patent is in effect."
So in theory, couldn't any company who owns a patent to something take any listing with patented items in it down? Also, how does one properly use their rights under the First Sale Doctrine while also not infringing on Patent Rights of the item they're selling? This seems to be a clear grey area, but after doing research, it appears the First Sale Doctrine does in fact allow individuals to sell any patented item as long as they legally obtained the item.
At the end of the day, it appears that my rights are once again being violated by brands, today Electrolux, who are aware that taking them to court over it is much more trouble than it is worth, and of course, is enabled by the much abused VeRO program. Personally, I think the best course of action is to quit selling on eBay. I encourage all readers who are eBay sellers and right's are being violated by the VeRO program to find another channel to sell items on. As for eBay, they need to revise the VeRO program. I do understand that eBay needs the program to ensure that they don't get into legal trouble with brands. However, they need to realize that brands are abusing their power with the program to control markets. Us sellers do not have enough individual power to legally take on these brands. Interestingly enough, some sellers have actually taken these companies to court over this abuse and have won numerous times. Take Tabberone for example. I encourage anyone reading this and going through the same problems to research Tabberone and there cases. It is an extremely interesting read.
If you are a seller who has experienced these issues before, or currently is, I strongly recommend taking your business elsewhere. Don't get it twisted though, you are sending no message. eBay won't miss you. This issue is going to have to get much worse before it gets better. There is not enough light being shined on this yet, and it is my earnest hope that we can bring attention to the issue so that eBay will somehow revise the VeRO program and provide some kind of protection to sellers. You leaving eBay is not a message, but you are going somewhere that will treat you better and not allow brands to violate your rights for the benefit of yourself.
