Listing Removed due to Trademark Violation by Rights Owner

[measuredmayhemtoys]

I was selling a Funko POP Figure of Elf on the Shelf. I've sold a couple this year and several over the last few. Suddenly tonight I had my listing for one taken down because the "Elf on the Shelf" Coorperation (NOT FUNKO)  claimed I "used their trademark without their permission." If I understand the first sale doctorine collectly, the Rights Owner can not control how an item is sold after the first sale. This means once they made their deal with Funko and then Funko sells that product, they can longer decide how and where those customers resell their product. I guess they can take it down if they believe the item is counterfeit, but I doubt "Elf on the Shelf" is claiming Funko is making unauthorized POPs. 

I called ebay and while the customer service rep was tyring to be helpful and was very kind, Im not sure she knew about the first sale doctrine. She claimed the rights holders can (and have in the past) forced products to not be sold on ebay. Unfortunatley the claim was so vague she could not tell me if "Elf on the Shelf" is making this claim against all ebay sales of their products or if they had a specific issue with my listing in particular. Also there are still many listings of this exact item still up at this very moment.

Not sure if anybody has any experience with this. Any information would be helpful.

Thanks!

[robot-hands]

VERO is broken and serves only as a vindictive action.

Ebay says they "can't" do anything but that would actually be "won't".

They were vague with you because that is what they are told to say to disarm you and get you off the phone.

[hillbillymedia]

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@robot-hands wrote:

VERO is broken and serves only as a vindictive action.

Ebay says they "can't" do anything but that would actually be "won't".

They were vague with you because that is what they are told to say to disarm you and get you off the phone.

---

I agree. It`s broken and being abused big time. I don`t condone fakes or the theft of intellectual property rights but I also don`t condone the abuse we often see reported here. The system has lost any integrity it had and now no ones listings are safe due to dishonesty on both sides and no real means of mediation or help for the layman.

[fr8hvnhet0]

It is my understanding the First Sale doctrine applies to the sale of USED Items, and unfortunately when we sell these same items as NEW (even if we never opened the box) then the first sale doctrine no longer applies as we then fall under the category of resellers which is another whole enchilada.

That having been said...

That horse manure of using TM wordage in your listing has bit me before as well, the worst part however was that I could have made a simple correction (by removing the offending wordage of which there were exactly TWO) but then... That is no longer possible since they completely OBLITERATED my listing.

There's nothing left, it is gone.

Today I make a complete backup of each and every listing as I put something up for sale.

I also watch carefully the terminology.

Oh, and I almost forgot...

I pray that these rights owners may sleep good at night knowing they have thwarted another small-time seller from possibly becoming a great big time criminal because they inadvertently tried to RESELL (god forbid) a product they purchased through rightful means.

Well, that may not have been proper...

So just pray for them, pray for good things to happen to them and blessings.

[pjcdn2005]

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@fr8hvnhet0 wrote:

It is my understanding the First Sale doctrine applies to the sale of USED Items, and unfortunately when we sell these same items as NEW (even if we never opened the box) then the first sale doctrine no longer applies as we then fall under the category of resellers which is another whole enchilada.

————————————————. 

The first sale doctrine also applies to new items and to resellers.

[myangelandmyprincess]

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@fr8hvnhet0 wrote:

It is my understanding the First Sale doctrine applies to the sale of USED Items, and unfortunately when we sell these same items as NEW (even if we never opened the box) then the first sale doctrine no longer applies as we then fall under the category of resellers which is another whole enchilada.

That having been said...

That horse manure of using TM wordage in your listing has bit me before as well, the worst part however was that I could have made a simple correction (by removing the offending wordage of which there were exactly TWO) but then... That is no longer possible since they completely OBLITERATED my listing.

There's nothing left, it is gone.

Today I make a complete backup of each and every listing as I put something up for sale.

I also watch carefully the terminology.

Oh, and I almost forgot...

I pray that these rights owners may sleep good at night knowing they have thwarted another small-time seller from possibly becoming a great big time criminal because they inadvertently tried to RESELL (god forbid) a product they purchased through rightful means.

Well, that may not have been proper...

So just pray for them, pray for good things to happen to them and blessings.

---

Your understanding is incorrect.  It doesn’t apply to just new.  

The only thing I would wonder is if Funko had the right to use elf on the shelf.  If they didn’t maybe that’s the issue ?   If they did have the right then elf on the shelf should have no control over you reselling it 

[the_fancy_fox]

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@measuredmayhemtoys wrote:

I was selling a Funko POP Figure of Elf on the Shelf. I've sold a couple this year and several over the last few. Suddenly tonight I had my listing for one taken down because the "Elf on the Shelf" Coorperation (NOT FUNKO)  claimed I "used their trademark without their permission." If I understand the first sale doctorine collectly, the Rights Owner can not control how an item is sold after the first sale. This means once they made their deal with Funko and then Funko sells that product, they can longer decide how and where those customers resell their product. I guess they can take it down if they believe the item is counterfeit, but I doubt "Elf on the Shelf" is claiming Funko is making unauthorized POPs. 

I called ebay and while the customer service rep was tyring to be helpful and was very kind, Im not sure she knew about the first sale doctrine. She claimed the rights holders can (and have in the past) forced products to not be sold on ebay. Unfortunatley the claim was so vague she could not tell me if "Elf on the Shelf" is making this claim against all ebay sales of their products or if they had a specific issue with my listing in particular. Also there are still many listings of this exact item still up at this very moment.

Not sure if anybody has any experience with this. Any information would be helpful.

Thanks!

---

Did you use your own pictures or one from the eBay catalog?

[myangelandmyprincess]

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@the_fancy_fox wrote:

---

@measuredmayhemtoys wrote:

I was selling a Funko POP Figure of Elf on the Shelf. I've sold a couple this year and several over the last few. Suddenly tonight I had my listing for one taken down because the "Elf on the Shelf" Coorperation (NOT FUNKO)  claimed I "used their trademark without their permission." If I understand the first sale doctorine collectly, the Rights Owner can not control how an item is sold after the first sale. This means once they made their deal with Funko and then Funko sells that product, they can longer decide how and where those customers resell their product. I guess they can take it down if they believe the item is counterfeit, but I doubt "Elf on the Shelf" is claiming Funko is making unauthorized POPs. 

I called ebay and while the customer service rep was tyring to be helpful and was very kind, Im not sure she knew about the first sale doctrine. She claimed the rights holders can (and have in the past) forced products to not be sold on ebay. Unfortunatley the claim was so vague she could not tell me if "Elf on the Shelf" is making this claim against all ebay sales of their products or if they had a specific issue with my listing in particular. Also there are still many listings of this exact item still up at this very moment.

Not sure if anybody has any experience with this. Any information would be helpful.

Thanks!

---

Did you use your own pictures or one from the eBay catalog?

---

That’s a good question it might be the picture that is the issue. 

[sharingtheland]

And it wouldn't be the first time we've heard of a VeRO pull based on an ebay catalog stock photo.

SMH

[measuredmayhemtoys]

I heavily doubt Funko didn't have the right to use Elf on the Shelf. They have been selling it for years (and other elf on shelf products. They just came out with a pez dispenser I believe) and they would be involved in a major lawsuit with the "Elf of the Shelf" instead of "Elf on the Shelf" just going after random ebay listings. Also it appears only my listing was targeted. There are still plenty of other listings up which would not be the case if "Elf on the Shelf" was going after the entire market because Funko made an unauthorized product.

Also I took my own photos of the item. I used no glam shots, no photos or art from somebody else.

[myangelandmyprincess]

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@measuredmayhemtoys wrote:

I heavily doubt Funko didn't have the right to use Elf on the Shelf. They have been selling it for years (and other elf on shelf products. They just came out with a pez dispenser I believe) and they would be involved in a major lawsuit with the "Elf of the Shelf" instead of "Elf on the Shelf" just going after random ebay listings. Also it appears only my listing was targeted. There are still plenty of other listings up which would not be the case if "Elf on the Shelf" was going after the entire market because Funko made an unauthorized product.

Also I took my own photos of the item. I used no glam shots, no photos or art from somebody else.

---

I doubt so too and I don’t see anything about it when googling.  It was just a thought of one reason. 

[mountainmommie]

Competitors do not like it when you undercut them and sizeable ones can make your life miserable. Were you banned as a seller or your listing booted?

Big difference.

[fr8hvnhet0]

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@myangelandmyprincess wrote:

---

@fr8hvnhet0 wrote:

It is my understanding the First Sale doctrine applies to the sale of USED Items, and unfortunately when we sell these same items as NEW (even if we never opened the box) then the first sale doctrine no longer applies as we then fall under the category of resellers which is another whole enchilada.

That having been said...

That horse manure of using TM wordage in your listing has bit me before as well, the worst part however was that I could have made a simple correction (by removing the offending wordage of which there were exactly TWO) but then... That is no longer possible since they completely OBLITERATED my listing.

There's nothing left, it is gone.

Today I make a complete backup of each and every listing as I put something up for sale.

I also watch carefully the terminology.

Oh, and I almost forgot...

I pray that these rights owners may sleep good at night knowing they have thwarted another small-time seller from possibly becoming a great big time criminal because they inadvertently tried to RESELL (god forbid) a product they purchased through rightful means.

Well, that may not have been proper...

So just pray for them, pray for good things to happen to them and blessings.

---

Your understanding is incorrect.  It doesn’t apply to just new.  

The only thing I would wonder is if Funko had the right to use elf on the shelf.  If they didn’t maybe that’s the issue ?   If they did have the right then elf on the shelf should have no control over you reselling it 

---

I didn't say it applied to just new...

I absolutely categorically did not say that at all (and you may have meant to say used BUT!!!)

 None of that matters, we're talking about VERO members here.

Let me spell it out:

You or me vs VERO = they win, every single time.

First sale doctrine or not.

Vero member wins.

Always.

---

@sharingtheland wrote:

And it wouldn't be the first time we've heard of a VeRO pull based on an ebay catalog stock photo.

SMH

---

 Yup, Vero ALWAYS wins.

[frenzy.finds]

 The last false Vero that I received I luckily received an email response stating that they had lied to eBay.

According to another site, this may work:

"Send an email using your eBay email address to rswebhelp@ebay.com and vero@ebay.com to request a counter-notice. Be sure to include your eBay account name and the item number of the listings that was affected."

[slippinjimmy]

A few points.......

Nothing at all sinister about Vero, it's just a name eBay gave to the program under which they comply with the Digital Millennium Copyright Act (DMCA).

When anyone sends eBay a properly filed takedown notice under the DMCA eBay MUST pull the listing, if they do not they would be just as liable as the seller who placed did the listing.

Copyright owners who file notices DO NOT "always win", if you receive a claim you suspect to be false, request the specifics from the copyright holder (if it's not clear from the notice). If you are convinced the claim is untrue then file a counter-notice (eBay provides links to the form and instructions), the claimant has a limited time to respond, if they do not then eBay will reinstate the listing. If they continue to assert their claim you can then decide how far and how much to take it further or simply drop the issue. Filing a counter-notice costs nothing.

Sellers on eBay lose Vero claims "always" because

The claim is legit

They don't fight them

Since most sellers who get a fraudulent Vero takedown comply the abuse by copyright trolls continues. One would have hoped that the DMCA would have some teeth in it to punish those who submit false infringement claims but the DMCA is extremely weak in this area. Lots of heavy lobbying money spread around DC back in the 90's to ensure this happened, more dollars flow to make sure nothing get improved.