Seller needs guidance with copyright policies

[vinniemac76]

Hello,

First time posting for help, so please forgive me if its "clunky".

I began selling in eBay at the end of sept. I am an art studio that does models for tabletop wargames, specifically the Warhammer40k game. The majority of the completed and painted models I sell are from the GamesWorkshop brand line (owners of warhammer). However, some are not.

On oct 28 I was hit with a VeRO strike. Though I dont agree with their interruption of copy right fair use for compatible with/comparison to, I'm not doing this to fight battles, Im doing this to sell my art.

That particular listing had already been sold and delivered. I should also add that as far as I know (via ebay), I've had no complaints from buyers. Everything that has occurred since oct 28 appears to be eBay acting off the brand owners single VeRO strike.

Since then I have been hit with 8 more counterfeit pulls. 1 was especially egregious for it was a brand model bought on eBay. Ebay was provided the receipt (their own) from the purchase multiple times. Every manager I speak with, we eventually get to "youre right about this listing. Thats a false pull. Will be corrected." Then its not.

Further more, I have been hit 6 more times since my initial successful (yet not) appeal. At least 5 of them are claims (according to ebay reps) that its a copy of an IP character. When asked which character (because I know it doesnt exist in the brand), I get no answer and my appeals are denied.

Letter of pass-thru licensure from a copyright holder of another model (claimed as CR by the first brand, GW) also has no effect. Even when close up pic of the copyright info on the packaging,  makes no difference.

I pleaded my case 1 last time yesterday. Today I was "dumped" appeal denied emails on all of them simultaneously. Im at my whits end. I am an LLC in Indiana. There's issues of "defamation per se" ( a manager admitted the genuine model that was pulled but genuine was a mistake. Yet it remains as "counterfeit") and "torturous interference of contract". Multiple of my pulled listings had multiple watchers. Also, since oct 28 my visibility has dropped by nearly 80%. Ebay has repeatedly claimed they had nothing to do with that, then in the next breath try to pass me off to the "ad team", I assume to generate additional fees on my account.

Is there an email address we can send listing to be previewed for problems? I cant keep buying inventory on ebay, investing labor and resources into it to make ir finiahed art work, just to turn around and discover the model is now unsellable on the same platform where I purchased it recently. Im avoiding all VeRO strikable words and phrases, despite compatibly fair use law and ebay rules, and still getting "hit". Any advice is greatly appreciated.

[redmodelt]

May I suggest while the edit window time is open, go back in and break this down into paragraphs with maybe a line break in between them. When presented with a wall of text, most people skim read or just read the first and last part esp on a smaller device. 

[tobaccocardyahoo]

The purpose of the VeRo program is to protect Ebay from infringement lawsuits.

It appears to do that well.

IMO VeRo is a poor solution to the problem.

If they required rights holders to file DCMA trackdown notices, a seller could file a response to the takedown notice and if necessary, agree to indemnify Ebay if it was sued.

It is not surprising that you cannot resell an item you purchased on Ebay. Every day more rights holders are deciding to enforce their IP rights often by hiring cheap enforcement companies whose lawyers file lawsuits with hundred of defendants.

Other sites which have more straight forward ways of dealing with infringement are still criticized by sellers who feel they are unjustly limited in their offerings. No solution is perfect. Ebay is proud of its unique VeRo solution so I would not expect any relief.

[luckythewinner]

From the eBay user agreement: 

"We reserve the right to refuse, modify, or terminate all or part of our Services to anyone for any reason at our discretion"

When it comes to a VERO takedown, the resolution is between you and the VERO member - not between you and eBay.

eBay has no incentive to override a VERO takedown because it opens them up to liability for any infringement. 

[bdmh-enterprises]

It's been a LONG time since I played 40k. But I know Games Workshop is and always has been absolutely relentless when it comes to protecting their IP's.

Nice figs BTW. Wish I could help. Good luck.

[vinniemac76]

Thank you. I undertand that, and am not arguing against the VeRO strike. My issue is with the 8 "counterfeit" pulls done after that eBay has admitted was triggered by their algorithm, and has no accompanying VERO complaint. My problems are the eBay is now acting as enforcement arm for another (foreign) against another domestic company without the requiried documentation. Without arguing the legality of the vero program itself, but eBays own actions with the program as they define it. The clearly list exceptions to VeRO, then ignore when those exceptions are used, even with the exact wording they provide in their rule (to be used with/compatible with).

Furthermore, the herculean effort.it takes to get even a hint of the exact offence (character similarity, symbols/markings, word useage, etc) makes correction impossible.

Is there a way or a program to avoid running a foul of the hyperactive vero bots (its clearly an algorithm)? I would rather go thro

[luckythewinner]

 without the requiried documentation.

Read my post again. 

There is no "required documentation".

You agreed in the user agreement that eBay could take your listing down at any time for any reason.

[vinniemac76]

Appreciate the compliment. The "niche" im aiming for is decent quality work at reasonable prices. It seems to be resonating very well with my buyers. Profit is not my current drive. Im approqching retirement age of a very successful career, and am doing this mostly for fun...and to play with my toys for free, possibly. Lol. I formed my LLC specifically for the reason that my personal finances are already complicated enough, and I like my CPA...not trying to make her cry. I am absolutely beside myself how this is quickly becoming a nightmare. Im sitting on over $10k of new unbuilt models (most from eBay). Flipped my initial pay-outs and then some over into new inventory. I have pourer my spare time, energy, and money in...only to have eBay do this. I'm "spooked" now, to say the least.

[vinniemac76]

Correct, however no agreement can indemnify a company from federal, state, or local regulations or UCC code. Such an act would instantly invalidate and void all involved contracts and make them unenforceable (you can't enforce a contract that involves criminal/civil violations).  So in doing so, don't they in actuality open themselves to further potential liabilty? I am an LLC. So the UCC and FTC regulations absolutely apply. Any violations of those or federal/state regulations is grounds for making the entirely of the contract, including arbitration argreements, void.

[janet9988]

You can not use the brand name in the title of a listing if the item is not that brand. You cant use the brand names in the item specifics either.

Also, You are not allowed to place want ads on ebay.

 You need to remove that from your listings.

.

[vinniemac76]

Thank you for that. I've removed all the want ads except for 2 which are too close to ending to change. I will catch those on relist. To the improper use of brand names, I can not find where I have. Most the models I sell are brand, and Im careful to not name the brand in the non-branded ones (or any of the brands TM's). Are you seeing something

[janet9988]

I would remove the Warhammer name from any handmade item.

[vinniemac76]

Are you referring to the the listing criteria? With tabletop model categories, it asks what game, army , faction etc its to be used for. That seems to be fair use under eBays VeRO policy. You're saying that could be the problem? 

[aproudparent2010 · Accepted solution]

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@vinniemac76 wrote:

Are you referring to the the listing criteria? With tabletop model categories, it asks what game, army , faction etc its to be used for. That seems to be fair use under eBays VeRO policy. You're saying that could be the problem? 

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I'm leaning that way

[vinniemac76]

Ty! When I checked a listing's item specifics tabs, I see how that entry as shown can trigger a response. Ebay really should clarify that selecting those suggestions is the same as using a brand name. After much hand wringing, I have gone ahead and listed my latest non-brand work. I've used no brand words/phrases, and have not selected the brands game under specifics. The item is so clearly different from any of the brands IP characters or models, a VeRO claim should be rejected on it's face. Fingers crossed and thanks for the help.