I know probably 99%+ of sellers do not know the following. Sellers need to remember a trademark owner, cyber cop or attorney cannot determine infringement, cannot use eBay listing as prima facia evidence to take action to damage a seller and conclude trademark infringement.
Trademark owners, greedy cyber cops and greedy and overreaching bottom feeding trademark attorneys taking VeRO actions against bona fide sellers selling legitimate trademarked items constitutes tortious interference with your eBay seller account. A judicial officer of a US court or a jury in the US are the only people who can determine infringement and issue a court ruling and court order. A judicial officer of an EU National court or any other worldwide court is the only person who can determine and rule on infringement after due process of both parties in a foreign country. CJEU made this ruling 100% clear in the July 2011 judgement regarding the UK case: L’Oréal vs. eBay.
Sellers don’t know only a court can determine and rule on trademark infringement. Sellers honor these trademark bully threats and don’t fight back. If you are selling a legitimate trademarked item and are protected by the “Right of First Sale Doctrine”, standup to these bullies and protect your rights and business. You can tell the bottom feeding attorney, who sends you a baseless “cease and desist” letter, which completely ignores or tries to circumvent the “First Sale Doctrine” to go pound sand and advise the attorney to tell his client to “go eat “sh….” and “f…. off”” (told this to: Square, Jack Dorsey, Insperon, Honeywell and GoPro). I’ve done this several times and never heard from them again.
Most cyber cops and trademark attorneys are bottom feeders. They can’t make it anywhere else or in a law firm so they have to resort to fraudulent and unethical tactics to attack and scare people who they perceive as weaker than them and who won’t fight back. Cyber cops make money by putting bounties on the removal of legitimate seller listings and filing false and fraud VeRO notices to eBay. Every listing removed creates a billable the cyber cop can use to pad their billing to their client. Removing listings makes the cyber cop look credible to their client as if they are doing their job and providing value to the client. The fact is the client has opened their checkbook to the cyber cop and the cyber cop robs the client.
Bottom feeding trademark Attorneys send baseless cease and desist letters to small eBay sellers. The attorneys threatened to sue the seller if they don’t abide by the attorney’s demands. 99.9% of the threats never materialize and most sellers cower down and comply with the unethical attorney’s demands when they shouldn’t. Trademark attorneys get paid big bucks to threaten, scare and intimidate people daily. The attorneys know their baseless and unfounded threats will generally result in a high rate of compliance with the demands. Turn around, stand-up and challenge the bottom feeding trademark attorney, and file a “Suit for Declaratory Judgement”, watch how fast the attorneys become wimps, ignore you, don’t ever file a lawsuit or quickly want to settle. Attorneys are not used to being challenged or call out for their lies and deception. Attorneys become real wimps when they are called out and challenged. An attorney’s biggest asset is their reputation followed by their Bar license.
Trademark attorneys get paid big bucks to lie and push paper. Attorneys know their trademark cease and desist letters they send are baseless and will not stand up in court. The greed of billable hours, which are gold to an attorney, overpower ethics and law. The attorney has a cease and desist letter template they use. The template will take maybe an hour at the most to draft. A simple “find and replace” function does most of the work for them and than they just have to read the letter and make respective changes. The attorney will paid the billing to the client for 4-8 hours of work as if they created the letter from scratch.
Last thing to remember: There are a lot of incompetent trademark attorneys and incompetent In-House Trademark Legal Counsel at these companies who issue baseless legal threats to sellers and try to extort licensing fees from sellers. This is the reason they have to prey on weak, vulnerable and inexperienced eBay sellers who they know will not fight back or don’t have the financial resources to hire counsel and fight back. I have learned it is more incompetence than it is attorney “lying” regarding trademark attorneys. Can provide many examples and evidence of incompetent and lying trademark attorneys.
Trademark attorneys do lie and use lying to cover up and hide the truth. Attorneys get by with lying because they are not under oath. In the attorney world, “lying” is called advocating for your client. This is reason many of the greatest liars become bottom feeding trademark attorneys, bottom feeding personal injury attorneys and bottom feeding divorce and family law attorneys. The aforementioned bottom feeding attorneys prey of people’s weaknesses, lack of knowledge, vulnerability, financial weakness, pain, suffering and anxiety.
Good attorneys don’t have the time to threaten people and they really don’t care to stoop to this level. They care more about their reputations. They are usually rainmakers of a firm and/or have ethics. The good attorneys are in demand and turn clients away daily. They have more work than they can handle and they have clients waiting in line for their services. The good attorneys charge between $600-$1,200 an hour. These good and respected attorneys are usually partners in firms or work for firms in the following industries: oil, gas, real estate, contract law, utilities, Wall Street and finance, health care, white collar crime and professional liability (primarily industries that require deep thinking, quick thinking, intelligence, protection and limiting liability and strategic thinking and planning). Manipulating and preying on peoples weaknesses and emotions do not require deep thinking, do not assume higher standards of ethics and potential legal liability, and the bottom feeding attorney is not held to a high standard as long as the attorney performs abd produces results for the subpar client and/or advances the unethical or fraudulent agenda of their client.
The views expressed above are solely my opinions and are based on my personal experiences dealing with trademark attorneys, In-House Corporate Counsel, divorce attorneys and actual professional real estate and corporate attorneys in the Corporate America realm of employment. My views and opinions are protected “free speech” under the First Amendment. Anybody is welcome to post a rebuttal or different opinion.
