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!

[pjcdn2005]

Tiffany sued because some sellers were selling counterfeit jewelry using the Tiffany name.   Obviously that is illegal and I doubt that anyone here would have a problem with any company filing a VERO takedown because an item was counterfeit.  They did not sue because they though the seller selling their authentic jewelry were not authorized sellers or were not 'good' sellers.

You have often mentioned the 'expired product' reason but I haven't seen see any proof that companies are issuing a vero notice or a 'cease & desist" ebay message for that reason or for any 'bad seller' reason.  Based on what I've seen, companies usually issue notice because the items are counterfeit or because they don't want their products sold by resellers.  In the second situation, they would have to lie on the VERO notice as they do not have a legal right to tell someone not to sell something that was legally purchased and that is covered under the first rights doctrine.  You seem to think that it is ok for companies to force a seller to stop selling a legitimate and legally obtained product whatever the reason.   I don't really understand that because if they are being shady in that way, what other shady things are they doing?

[emerald40]

Like the example I gave with makeup, many companies require that product from authorized dealers be returned to them.  So where are sellers getting that product?  Are they legally obtained?

And why don't they just want anyone reselling their product - may because of all the abuses I have seen on here?

[pjcdn2005]

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@castlemagicmemories wrote:

General response.

I thought that if you challenge a take down, you are basically challenging the company to sue you.  

Just what I have read.

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 I haven't gotten that impression.

[mikeystoyz]

Once I buy an item legally it is mine to do with what I want with it.  If I want to turn around and immediately sell it I can.  The item is mine.  I am not borrowing it.  I physically own it.  I have gone against Vero takedowns before and have proved they are incorrect.  

Vero do not always win, I had a vero member back peddle very quick from me once.  I called them on their **bleep**.  They were a company right up the street from me with items made by another company right up the street from me.  Emailed the president, said I am sure company would like to know you are saying they are selling counterfeits when I have the invoice from you in my hands.  On top of that, I have an invoice from the president to myself.  It was a big vero company and they lost.  They apologized after I told them I would take them to small claims for 7500 dollars and would be happy to do it.  I was selling the items the next day

[myangelandmyprincess]

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@emerald40 wrote:

Like the example I gave with makeup, many companies require that product from authorized dealers be returned to them.  So where are sellers getting that product?  Are they legally obtained?

And why don't they just want anyone reselling their product - may because of all the abuses I have seen on here?

---

Knowing someone who has sold make up with one of these companies she always had tons of it.  When she was done she didn’t have to give it back.  We got make up as gifts for years ha.   I’ve seen lots of make up like that brand new at thrift stores.  They don’t always have to send it back.   Either way if it’s an authorized dealer selling it on eBay against the contract vero is not meant to be used for that purpose 

[seller*by*day]

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@pjcdn2005 wrote:

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@castlemagicmemories wrote:

General response.

I thought that if you challenge a take down, you are basically challenging the company to sue you.  

Just what I have read.

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 I haven't gotten that impression.

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Because it’s not true. It’s not and never has been inviting them to sue you. 

[emerald40]

I am talking of brands that when you go on their site, authorized dealers only can sell it.  And I know of a couple where unsold product must be returned.  Yet it is sold here.  If the person was authorized she would obviously state it,

If someone dumps it at a yard sale, can someone else legally sell it here against the company's wishes?  Rhetorical question because I feel they should not be allowed to do so.  And vero gives these companies the ability not to have to allow it.

We will continue to differ on opinion.  Are you vero?  Well may be if you had a product you sweated over to bring into fruitition, you might feel different.

[myangelandmyprincess]

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@emerald40 wrote:

I am talking of brands that when you go on their site, authorized dealers only can sell it.  And I know of a couple where unsold product must be returned.  Yet it is sold here.  If the person was authorized she would obviously state it,

If someone dumps it at a yard sale, can someone else legally sell it here against the company's wishes?  Rhetorical question because I feel they should not be allowed to do so.  And vero gives these companies the ability not to have to allow it.

We will continue to differ on opinion.  Are you vero?  Well may be if you had a product you sweated over to bring into fruitition, you might feel different.

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I’m talking or a brand that only has authorized dealers too.  I think part of the problem was she was required to sell so Much a month and so she ended up with a lot of extra product she essentially bought.   

How you feel or how the company feels doesn’t matter.  If someone buys it at a yard sell yes they can sell it here.  The company does not have the right to control that.  Although some like to pretend they do.  

I did at one time do custom made items.   Mostly for fun.  If someone bought it from me afterwards they could resell it doesn’t matter.  It doesn’t matter how one feels about it what matters is the legal rights someone who buys it has.  A company can’t take away someone rights just because they don’t like them selling their product that’s not how vero works and it’s not how the law works. 

[emerald40]

Sellers come on and complain that someone stole their photos or copied their text, and posters explain how they can fight it.

But if you steal someone's copy right product, no problem.

[myangelandmyprincess]

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@emerald40 wrote:

Sellers come on and complain that someone stole their photos or copied their text, and posters explain how they can fight it.

But if you steal someone's copy right product, no problem.

---

Who said anything about stealing a copy right product?   

Stealing a copy right product would be like making it yourself and selling it.   I’ve never at any point condoned that.  But the point in the first doctrine is that once you buy that item it’s your item to keep, give away, sell, etc.  even thought the company still owns the copyright the purchaser now owns that product and they can sell it without it violating any copyright laws 

[escuintla]

There are valid propositions and defenses here. My soon to be lawyer instinct (back in my former country) shows up whe I see legal or law written anywhere. 

There are eyes on you whatever you go. There rules, laws, guidelines you don't cross or you will pay dearly. 

I've been the subject of VERO, or Ebay in that case, telling me to take down such and such item because of violations. They don't ask you, no! They do it!

Now, I am at the flea market with my eyes peeled for anything that smells money. So, being naive when selling some things, I see this Monster hats (energy drink) and they are $3 a pop. I buy me 10 and as soon as I get home, here I go! A happy camper! Only to see the email from Ebay, 2 hours later, that they were, well, counterfit, fakes, whatever. 

There are perfumes being sold, half the content, or "used" but it's vintage.  Once you embed the "vintage" in the listing, "buyers beware!". They know, and have to know, that this item is expired because if they zoom the pictures, they will see the 1992 or so date stamped on the box. But the product is still good as they keep buying once, twice and many times.  Do you blame them for "collecting" those perfume, lotion, cream bottles? 

How things appear on Ebay? Well, it happens that there are auctions. And, many auctions are from storage units. Well, it happens that the owner of such and such store didn't have enough space at his place so he had to rent a storage unit. Things get weird, bad, s/he was cheated on so get to drink, s/he goes BK, so no money to pay the storage unit due and the contents go to the auction date.

That's how many items get lost in translation or should I say "how they appear" in the hands of unsuspected buyers whom didn't know anything about them being impossible to be sold in the open market because a rule from the manufacturer specifies "something" to be done about them if the licensee loses his right to sell them, etc.

Last comment:

How come they take items down from your listings, but not from the other 20,000 sellers?  

If they want to apply the law, make it a law for everybody, not only for the one who was snitched on by the competitor, or the usual mad buyer.

Why not? Because "somebody" loses money in that process, and that's not only you.  

[pjcdn2005]

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@emerald40 wrote:

I am talking of brands that when you go on their site, authorized dealers only can sell it.  And I know of a couple where unsold product must be returned.  Yet it is sold here.  If the person was authorized she would obviously state it,

If someone dumps it at a yard sale, can someone else legally sell it here against the company's wishes?  Rhetorical question because I feel they should not be allowed to do so.  And vero gives these companies the ability not to have to allow it.

 ------------

Yes, someone can legally sell it if they bought it at a yard sale or if they bought it from the authorized seller or from whoever.  Regardless of how you 'feel' they are allowed to sell it.   And no, vero does not give these the companies the ability to not allow the sale of their products UNLESS they lie on the form.  Are you saying that it is ok for them to lie?

 
If you look at the VERO Notice of Claimed Infringement it gives a number of reasons that the VERO member can submit for wanting the item taken down and they are regarding copyright and trademark infringements. At the bottom of the form it specifically states:

Please note that eBay does not process reports to enforce selective distribution agreements, M.A.P. policies, and contractual disputes

So they actually specify that the process is not  to be used to police unauthorized sellers from listing products on the site.

 

https://ir.ebaystatic.com/pictures/aw/pics/pdf/us/help/community/EN-NOCI.pdf 

[e1bay1junkie]

Been through this before with VeRo anyway.

1.  Take your listing down immediately.  Never ever ever EVER E V E R put it back up.  If you do, eBay will get you.  It will not go well for you.  Do not modify it and repost it.  Just delete it.  It's alot safer for you.  Yes, you will see the exact same item listed a million other times on here, and eBay will just say to you, "We haven't gotten to them yet."

2.  The ALLEGED rights owner is also given your full details - name & address to file a lawsuit against you (or to harrass you, or hunt you down and **bleep** you - it's your frickin' info to a complete stranger).  In turn, you get nothing from the ALLEGED rights owner.  You will not know their name, location, or anything, but you may get an e-mail address.  eBay does not protect your privacy, regardless of what their written policies say.

3.  A L L E G E D .  The rights owner, does not have to be the TRUE legitimate rights owner.  They can, and do, wrongfully identify items and at the expense of the seller.  eBay is lawsuit averse, which means they will instantly and always side with the accuser, not the accused.  They furthermore do not and will not ever verify your items for legitimacy or that you are the true rights owner or a rights holder or authorized reseller etc.

4.  People do fight it, but it's a huge hassle.  You put at risk your eBay account and the potential of a lawsuit from some random company (although I have not heard of a company actually filing suit).  Just don't bother.

[mikeystoyz]

I would disagree.  That is what the company wants.  I bought a bunch of widgets from a company, they were from the company.  They sold them in an auction.  I got this from the company.  I bought them from the company, I had the invoices from the company.  I listed the widgets, the company told me to take them down as they were fakes.  I emailed them the invoices and they went away fast.  I am not afraid of a company, especially if they are in my backyard.  Im happy to take them to small claims court.

[mikeystoyz]

If I buy something from you and resell it I can totally do that.  You can not tell me I can not sell it.  That is a big difference between faking something.  The item in question is not fake.