What is VeRO and why was my listing removed because of it?

[sanclementelocals]

I believe the rights owner is wrongly and intentionally claiming items are counterfeit, when they know full well they are not.  I have attempted to resolve this by emailing both the owner and ebay VeRO staff member and as of yet have no resolution. Does anyone have insight they can provide on this subject?

[slippinjimmy]

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@sanclementelocals wrote:

I believe the rights owner is wrongly and intentionally claiming items are counterfeit, when they know full well they are not.  I have attempted to resolve this by emailing both the owner and ebay VeRO staff member and as of yet have no resolution. Does anyone have insight they can provide on this subject?

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I haven't examined the items in particular but I feel confident about the following..........

A company misused the the Digital Millenium Copyright Act (DMCA), they filed an infringement notice with eBay who followed standard procedures by pulling the item.

The misuse is that while they claimed infringement they are actually just trying to control the market, there is no actual infringement as the product is legitimate and purchased by the seller legitimately.

eBay can do nothin g for you but YOU can do something and that is to file a counter-notice under the DMCA, if the company does not respond to your counter-notice you can ask eBay to reinstate the listing.

Companies can enforce agreements and contracts with the signatories of those agreements but they cannot enforce the matters against a third-party who has legal protection under the "first sale doctrine".

If you are 100% confident you have not infringed AND you are 100% confident the goods are legitimate then file the counter-notice (costs nothing).

These copyright trolls depend on fear and know that most people won't fight back.

As mentioned earlier tabberone.com has a wealth of information.

[siayan]

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@sanclementelocals wrote:

I believe the rights owner is wrongly and intentionally claiming items are counterfeit, when they know full well they are not.  I have attempted to resolve this by emailing both the owner and ebay VeRO staff member and as of yet have no resolution. Does anyone have insight they can provide on this subject?

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Just a word of advice. Think hard before you relist it. Will it be worth the fight to get a suspended account reinstated. Sometimes it is best just to pass on selling a vero'ed item.

[sanclementelocals]

Here is their response to my counter-notice(at least I think  I was sending a counter -notice).

Hello,

Thank you for contacting eBay's Verified Rights Owner (VeRO) Program about the removal of your listings. My name is Amber  and I am happy to give you some context on why your listings were removed, and what your options are going forward.

Your items were removed because Exclusive Management, Inc sent us a legal notice that they have determined your items are counterfeits that infringe their trademark. We appreciate that you did not intend to list counterfeit goods, and believe that the items you have listed are authorized or authentic, but when we receive a report that appears credible from a verified rights owner on a legal notice, we have to remove the alleged infringement from the site. Since eBay does not have expertise in Exclusive Management, Inc's goods, we have to defer to their expertise on their products, and recommend that you contact the rights owner directly to appeal this removal. We are not able to overturn your items' removal without a retraction from Exclusive Management, Inc. As they have indicated that the actual items infringe their trademark, we strongly recommend that you do not realist the items without us receiving a retraction from Exclusive Management, Inc.

The rights owner is objecting to the item sold, not content within the listing.  The statement below only applies to the way the item was described, such as copying the image, text and making reference to a brand name when it is not the actual brand name item:

"If your listing was removed due to the way it was described (in image or text), you can edit your listing to remove the content in question and realist."

While most VeRO participants are willing to respond to an email, they are not required to address your concerns and we have no way of forcing them to answer you. We hope that this matter can soon be resolved in a way that is satisfactory to you both.

Thank you again for reaching out to us about the removal of your listings. We appreciate the contributions that you make to the eBay community and the business you bring to the site.

Sincerely,

Amber B.

eBay VeR0 Team

[luckythewinner]

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@sanclementelocals wrote:

Here is their response to my counter-notice(at least I think  I was sending a counter -notice).

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When you filed the notice, did it sound like you did all this?

(3) Contents of counter notification.—To be effective under this subsection, a counter notification must be a written communication provided to the service provider’s designated agent that includes substantially the following:

(A) A physical or electronic signature of the subscriber.

(B) Identification of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or access to it was disabled.

(C) A statement under penalty of perjury that the subscriber has a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled.

(D) The subscriber’s name, address, and telephone number, and a statement that the subscriber consents to the jurisdiction of Federal District Court for the judicial district in which the address is located, or if the subscriber’s address is outside of the United States, for any judicial district in which the service provider may be found, and that the subscriber will accept service of process from the person who provided notification under subsection (c)(1)(C) or an agent of such person.

[sharingtheland]

That is a boilerplate VeRO reply to your information submitted.  What you submitted was not a counter-notice and ebay doesn't give two hoots about your proof.

Ebay/VeRO will keep repeating this to you until you have successfully reconciled the issue with the manufacturer (forgot the product name and I can't see it here).

I didn't click on the link but the line above about agreeing not to blah blah commercial or resale blah blah the product is hooey, unless you have a written contract with the manufacturer that states where/how/why you can sell the stuff.

While most VeRO participants are willing to respond to an email, they are not required to address your concerns   <---this is why you have to file the counter-notice and/or follow tabberone's instructions.

Again, can't say it enough:  tabberone

Edit:  And, what lucky said.

[albertabrightalberta]

If ebay "VeRO Team" responded, you didn't file a counter-notice. You contacted ebay.

To file a counter notice, you need to contact the rights owner. There should be contact information somewhere in the takedown message you received.

[albertabrightalberta]

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@a*river*runs*through*it wrote:

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From that link: Section  8.2:  We only supply Products (including any free samples provided with your order) for domestic and private use. You agree not to use the Products for any commercial, business or re-sale purposes,

Not sure if that would apply if you bought it from another retailer.

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The part in red only applies to companies who contract with the manufacturer/rights owner. It doesn't apply to a customer who purchased from an authorized distributor. 

First sale doctrine gives legitimate buyers who purchased from an authorized distributor the right to resell items they purchased. 

As an example, Uggs supplies online websites who contract with them to sell Uggs on their own company website. But that company is not allowed to take it upon themselves and also sell on ebay.

However, if I go buy Uggs from one of their authorized resellers, I am allowed to resell those Uggs per first sale doctrine. I don't have any agreement with Uggs/Deckers and aren't bound by their contract.

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However the above is moot because according to the OP's information from the response received, the issue isn't unauthorized sale but rather because the company believes that the item is counterfeit. 

So in that case, the OP needs to (somehow) prove to the company that the item is authentic. 

[albertabrightalberta]

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@sanclementelocals wrote:

Here is their response to my counter-notice(at least I think  I was sending a counter -notice).

*snip*

While most VeRO participants are willing to respond to an email, they are not required to address your concerns and we have no way of forcing them to answer you. We hope that this matter can soon be resolved in a way that is satisfactory to you both.

Sincerely,

Amber B.

eBay VeR0 Team

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@sanclementelocals, I believe that Amber B. gave you some misinformation regarding a response (or lack of reply) from the rights owner. 

They are REQUIRED to respond within 10 days or the listing will be reinstated as per the law and ebay's own policy. (see the part in red below.)

How can I file a counter notice? (US only)

Counter notices can only be submitted for US-based copyright reports, in compliance with the Digital Millennium Copyright Act. Find out what information you need to provide when filing a counter notice as outlined under 17 U.S.C. section 512(g)(3). Once we receive a valid counter notice, we'll provide a copy of the notice to the VeRO participant and inform them that the listings will be reinstated after 10 business days if they don't inform us that they have filed an action seeking a court order to restrain you from relisting the items. If you wish to file a counter notice, you can contact us.

[sanclementelocals]

Ebay response to question asking if statement from Amber was accurate.  After I sent this message through Ebay page I sent a request to file a counter notice by email. I'm not sure if their response applies to both the message and the email request to file counter notice.

Hello,

Thank you for contacting the eBay VeRO (Verified Rights Owner) Program. 

Unfortunately, your items were removed based on TRADEMARK  rights. The Digital Millennium Copyright Act and Counter Notice process only covers items that are removed based upon Copyright rights.  At this time, we urge you to continue to attempt to resolve this matter directly with the rights owner.

We hope that this matter can soon be resolved in a way that is satisfactory to you both. If you have any other questions or concerns regarding this matter, please do not hesitate to write again.

Thank you for your concern in helping to keep eBay a safe and reputable forum in which to conduct business. We appreciate you for choosing eBay.

Kind Regards,
Declan P.
ebay VeRO Team

[THREAD ID: 1-2HV3M1MA]

[randomjenny]

Dermalactives also came after me and said my item was counterfeit.  This caused my eBay store to get a 7 day suspension.  I filed a Counter Notice which I would encourage you to do to.  

[randomjenny]

Thank goodness for "tabberone" I did what he suggested because Dermalactives went after me too.  

[randomjenny]

You do not have to do that.  All she needs to do is file a Counter Notice with eBay.  Vero will send you the form.  This gives the company 10 days to file a lawsuit against and if they do not than you are off the hook.  You automatically win.

[randomjenny]

You do not have to do any of that.  All she needs to do is file a Counter Notice with eBay.  Vero will send you the form.  This gives the company 10 days to file a lawsuit against you and if they don't then you're off the hook.  You automatically win.

[sanclementelocals]

Was there a final resolution to your matter?

[sanclementelocals]

I tried and was told that Counter Notice would not apply to this issue. My item was just removed. Suspension seems harsh without one warning?