eBay

pantur · ‎11-02-2018

We recently had 2 postings removed by eBay for alleged trademark violations.

We had purchased both items used and wanted to re-sell them, posting them on ebay as used, and including in our listing their manufacturer's name (Codman) and their model name (BOOKWALTER.)

Specialty Surgical Instrumentation, Inc. (SSI), the company that owns the Bookwalter trademark, asked eBay to remove these items because of "using the BOOKWALTER trademark, without attribution or permission"

We reached out to eBay and were told by their representative that this, indeed, is their policy. Specifically, when the owner of a trademark contacts them and requests removal of a used item bearing their trademark, they comply.

When we asked the representative if we would then be allowed to sell our used Ford Taurus on eBay even though the Ford Taurus name is trademarked she replied that we could since Ford Motor Co. had not contacted them yet to request removal of all Ford Taurus listings.

Unbelievable !!!

We understand that eBay is a private company and is entitled to run their business as they see fit. But, following this policy down the road, what is there to exclude all original equipment manufacturers to enforce exclusion of ALL the used items manufactured by them from selling on eBay.

How will that be beneficial to eBay and its customers?

gracieallen01 · ‎11-02-2018

ebay is merely accomodating Federal Law(s) regarding the prevention of copyright/trademark infringement.

Not saying 'NO' doesn't mean 'YES'.

The foolishness of one's actions or words is determined by the number of witnesses.

Perhaps if Brains were described as an APP, many people would use them more often.

Respect, like money, is only of 'worth' when it is earned - with all due respect, it can not be ordained, legislated or coerced. Anonymous

luckythewinner · ‎11-02-2018

Specifically, when the owner of a trademark contacts them and requests removal of a used item bearing their trademark, they comply.

Not just used items - any item.

The Digital Millenium Copyright Act of 2008 (DMCA) provides a website owner with immunity from liability for the actions of its members.

But in order to receive that immunity, the website must respond to a "notice of claimed infringement" (NOCI) from an intellectual property (IP) owner by immediately removing the content that is alleged to be infringing their IP.

With this law, Congress made it very clear that after website responds to a NOCI, it is up to the website user (you) and the IP owner (Specialty Surgical Instrumentation) to hash it out privately or in court.

In other words, it is not eBay's job to be an expert on the intellectual property status of the 1.1 billion items on its site.

If you feel you are in the right, you can file a counter-notice to the NOCI and challenge SSI's claim. If they do not respond with legal proceeding within 10 days, eBay is supposed to put the listing back up.*

But understand that a counter-notice is basically daring the IP owner to sue you, so you may want to get legal advice and weigh that option carefully. If ther is some licensing agreement governing this item that you are not aware of, it could be a costly lesson.

What is there to exclude all original equipment manufacturers to enforce exclusion of ALL the used items manufactured by them from selling on eBay.

Nothing, except the IP owner's moral compass and the time and effort it would take to constantly police eBay and file the reports.

(* technically, eBay does not have to restore your listing. The eBay User Agreement has a clause that allows eBay to deny all or part of its service to any user at any time for any reason or no reason at all. )

castlemagicmemories · ‎11-02-2018

Ebay must comply when the owner of the rights specifically reaches out to them via VERO and remove the listings. Your complaint is with the manufacturer, not with Ebay.

gdiesel70 · ‎11-02-2018

Sorry to hear about your listings and I totally understand your frustration.

As a service provider, eBay is stuck in the middle--between the seller and the rights holder-- so when they receive a *legitimate* request for removal, they comply.

The problem is, Trademark holders *must* enforce the trademark or else they could end up losing the trademark.

TM violations are issued a C&D letter (not a DMCA takedown). This process "search and destroy process" is usually outsourced to a rights protection service. The service utilizes a scraper/bot technology (same way DMCA takedown services operate) to crawl the web to find infringements. The results are then sifted through by actual humans who decide if it's a violation, then auto-submit a C&D to eBay (aka the service provider) who then removes the user-generated content.

So when eBay deletes a listing, it's more of a standard operating procedure rather than a choice.

What I don't understand is how you would be violating a TM when first-sale doctrine for tangible goods states that if you bought it, the license was transferred to you, therefore you can resell it (as used). You're simply using a brand's name to identify the product-- nothing more. I wonder why that's not considered to be a fair use?

I could understand if the book was listed as new and there's a manufacturers warranty, or was an entirely different book, the book was a low-quality pirated import from overseas or advertised in such a way it caused "customer confusion", which it wasn't.

Someone mentioned DMCA (section 512 (c)) [Im on mobile now so it's kind of hard to quote] Digital Millenium Copyright Act doesn't apply to trademark.
DMCA if for intellectual property, e.g., photos, videos, digital creative and written works, ebooks, etc.

mansons2005 · ‎11-02-2018

Just to cover all of the possibilities, did you use any direct quotes or photographs from any existing website? Did you actually use a name followed by the actual word TRADEMARK? It has been my experience that these are usually the actual causes for the TM owner to have a listing pulled. Of course there re those rights owners who overstep and try to negate the first-sale doctrine, usually as a "bullying" tactic to control sales as opposed to actual infringement.

7606dennis · ‎11-02-2018

With any VERO takedown you should have been furnished with the name of the rights owner and instructions on how to contact them. It is pretty much out of eBay's hands and you will need to deal with the rights owner directly.

"It is an intelligent man that is aware of his own ignorance."

magicjohnsonsvariety · ‎11-02-2018

@mansons2005 wrote:
Just to cover all of the possibilities, did you use any direct quotes or photographs from any existing website? Did you actually use a name followed by the actual word TRADEMARK? It has been my experience that these are usually the actual causes for the TM owner to have a listing pulled. Of course there re those rights owners who overstep and try to negate the first-sale doctrine, usually as a "bullying" tactic to control sales as opposed to actual infringement.

BINGO....you got it.

They don't just try to negate the first sale doctrine, they do and easily succeed. FSD is worthless unless you have your own website.

v7bbn_0 · ‎11-02-2018

We know...

We had our listings removed by ebay because the ****** corporation didn't like us selling "******(tm)" products that we purchased from the manufacturer.

However to add insult to injury they don't just "remove" the listing so that we can edit out the "offensive" word and relist if we so chose.

No.

They completely obliterate and demolish the listing.

It is nowhere to be found.

Pictures, everything, gone.

We have to re-create the whole thing from scratch if we wish to relist.

Further, I would NOT relist with the offensive word at all, not even if it were followed by TM.

I would completely leave the "word" OUT!

We certainly hope the CEO's and employees of these corporations sleep good at night knowing their precious little trade secrets are safe from predatory sellers such as us.

moondogblues · ‎11-03-2018

"ebay is merely accomodating Federal Law(s) regarding the prevention of copyright/trademark infringement."

What about the First Sale Doctrine?

moondogblues · ‎11-03-2018

I seem to remember a case years ago about a college kid who was selling textbooks he could get from overseas cheaper than here. The publishers went after him about it, but I believe he won the case. Anyone here remember that? Did he indeed win? It's a textbook case (no pun intended) of FSD.

v7bbn_0 · ‎11-03-2018

@moondogblues wrote:
I seem to remember a case years ago about a college kid who was selling textbooks he could get from overseas cheaper than here. The publishers went after him about it, but I believe he won the case. Anyone here remember that? Did he indeed win? It's a textbook case (no pun intended) of FSD.

Yeah, and I've heard similar cases but don't forget what it may take to get that win.

I can only guess a part of the reason why articles cost what they do is because the cost of these lawsuits simply gets passed on to the consumer, frivolous lawsuits if you ask me...

I think it is sad when the law that is supposed to protect the patent / trademark holder from infringement ends up getting used mostly in the fashion we're discussing here, meanwhile certain overseas countries copy and steal with impunity.

Aren't we doing this a bit backwards?

Shouldn't they be going after the mass producer who unabashedly stole the entire product and is reproducing it on an assembly line for resale, and not the small time seller who straight up purchased something for themselves and has now decided to resell it because they no longer need / want it?

I guess this is what happens when bots take over.

romulus123 · ‎12-18-2018

Good point about the FORD issue. Sometimes this Trademark issue gets a bit over handed. A few years back, I purchased an item on ebay for a good price. I relisted the item a few months later, and POW..out comes the trademark violation letter. I would suppose it means " I was the last guy" holding the bag and now I'm stuck. It's a messy criteria...is there some sort of "CENTER OF AUTHENTICITY" council that verifies something as legit/ trademarked....are we expected to spend hours scouring the internet , somehow hoping this pencil is not trademarked, or even authetic...it gets more than ridiculous.