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!

[myangelandmyprincess]

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@slippinjimmy wrote:

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.

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Exactly this.  

[ten_o_nine]

Just relist it but take your own photos and use your own description, I think that's when the first sale doctrine will prevail.

[slippinjimmy]

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@ten_o_nine wrote:

Just relist it but take your own photos and use your own description, I think that's when the first sale doctrine will prevail.

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This is EXTREMLY BAD advice!!!!!

Until such time as the Vero claim is withdrawn relisting is likely to result in permanent suspension. eBay does no apply any sanction for a first time Vero take down, even a second take down for a different item won't cause serious issues but a second for the exact same item is an instant suspension or termination.

[emerald40]

100% agree.  Relisting can get you terminated.

I see another thread below this where a seller is going through something similar with a cease and desist order.  Seems like companies are clamping down and protecting their rights and that of their company.

[myjunqueyourtreasure]

C&D is not a Vero takedown.

Those who have false Vero takedowns need to start stepping up and filing counter notices.

[emerald40]

Reread my post.

The emphasis was on companies through various means are cracking down.

You keep saying to fight.  I respect your opinion, but that is not the right way to go for everyone.

[myangelandmyprincess]

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@emerald40 wrote:

100% agree.  Relisting can get you terminated.

I see another thread below this where a seller is going through something similar with a cease and desist order.  Seems like companies are clamping down and protecting their rights and that of their company.

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companies reporting listings that can legally be sold isn't them protecting their rights.  It's abusing their power to take away comeone elses rights.

[emerald40]

I have seem too many bad listings to not understand why vero rights owners are trying to be careful.

Used makeup.

Expired products.

Listings being sold at ,99 when they are valued at $25 so one wonders if they were legally acquired.

Yes honest sellers, may get caught up in it, but a company can get ruined over it as well.

[myangelandmyprincess]

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@emerald40 wrote:

I have seem too many bad listings to not understand why vero rights owners are trying to be careful.

Used makeup.

Expired products.

Listings being sold at ,99 when they are valued at $25 so one wonders if they were legally acquired.

Yes honest sellers, may get caught up in it, but a company can get ruined over it as well.

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Used make up and expired products aren’t something they legally can control.  However it’s my understanding those aren’t allowed on eBay in the first place.  

And they shouldn’t be reporting just because the list price is low using it as the excuse of it might be fake.  That reeks of trying to control the market which is against vero rules.  They also actually aren’t supposed to use vero enforce contracts with authorized dealers either.  

[emerald40]

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@myangelandmyprincess wrote:

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@emerald40 wrote:

I have seem too many bad listings to not understand why vero rights owners are trying to be careful.

Used makeup.

Expired products.

Listings being sold at ,99 when they are valued at $25 so one wonders if they were legally acquired.

Yes honest sellers, may get caught up in it, but a company can get ruined over it as well.

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Used make up and expired products aren’t something they legally can control.  However it’s my understanding those aren’t allowed on eBay in the first place.  

And they shouldn’t be reporting just because the list price is low using it as the excuse of it might be fake.  That reeks of trying to control the market which is against vero rules.  They also actually aren’t supposed to use vero enforce contracts with authorized dealers either.  

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Many things are not allowed on ebay, yet there they are.

They may not be able to legally control it, as you say, but how would you like to see a complaint about one of your copyrighted products for all to see, through no fault of that company, but a seller who has no vested interest, so does not really are.

Brand names that are priced extremely low - fake?  illegally acquired? stolen?

Authorized dealers state that they are so I am sure unless they do something improper vero leaves them alone.  It is the unauthorized ones that companies are more concerned about because like I said, if the company name suffers, they do not care.

[myangelandmyprincess]

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@emerald40 wrote:

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@myangelandmyprincess wrote:

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@emerald40 wrote:

I have seem too many bad listings to not understand why vero rights owners are trying to be careful.

Used makeup.

Expired products.

Listings being sold at ,99 when they are valued at $25 so one wonders if they were legally acquired.

Yes honest sellers, may get caught up in it, but a company can get ruined over it as well.

---

Used make up and expired products aren’t something they legally can control.  However it’s my understanding those aren’t allowed on eBay in the first place.  

And they shouldn’t be reporting just because the list price is low using it as the excuse of it might be fake.  That reeks of trying to control the market which is against vero rules.  They also actually aren’t supposed to use vero enforce contracts with authorized dealers either.  

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Many things are not allowed on ebay, yet there they are.

They may not be able to legally control it, as you say, but how would you like to see a complaint about one of your copyrighted products for all to see, through no fault of that company, but a seller who has no vested interest, so does not really are.

Brand names that are priced extremely low - fake?  illegally acquired? stolen?

Authorized dealers state that they are so I am sure unless they do something improper vero leaves them alone.  It is the unauthorized ones that companies are more concerned about because like I said, if the company name suffers, they do not care.

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It doesn’t matter how they feel about it.  They don’t have the legal right to disallow it. 

I’m meaning the authorized dealers who in their contract it says they can only sell items certain ways.  Those companies who don’t want their merchandise on eBay.  They can’t use vero to report those items.  Or they aren’t supposed to.  

[emerald40]

If sellers did not abuse it, companies would not have to go after them.

I am vero.  Took me a long time to create a particular setting.  I do not need sellers copying it or otherwise abusing my design.

Tiffany& co felt the same way and sued.

Legal or not, a company has the right to protect what is theirs.  And I willl always stand on their side.

[myangelandmyprincess]

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@emerald40 wrote:

If sellers did not abuse it, companies would not have to go after them.

I am vero.  Took me a long time to create a particular setting.  I do not need sellers copying it or otherwise abusing my design.

Tiffany& co felt the same way and sued.

Legal or not, a company has the right to protect what is theirs.  And I willl always stand on their side.

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that literally makes zero sense.  "legal or not" no, they only have the right to legally protect whats theirs  They do not have the right to take away others rights simply because they want to control where their items are sold or the prices of them.  And while I'm all for protecting the rights of the company's brand I don't blindly believe they have any right legal or not to protect it.  Because as much as I'm for protecting their rights I'm also for protecting the rights of the person reselling the product who has every right to do so. 

[emerald40]

Sellers do not play by the rules around here.  I have seen many listings that are of expired items.  I see used makeup.  I seek fake items.  I see items listed at prices that make them suspect.

I understand what first doctrine is.  But when a seller sells makeup in all shades from the lightest finnish woman to the darkest woman of color, this is not personal use.  This is a business.

Like I said if sellers are going to do what they want because that is how it is, the companies should not have their hands tied either.  And thankfully ebay has vero.  So I do not feel the least bid bad when the owner of the copyright uses it.

[castlemagicmemories]

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.