Help - buyer says item not as described.

[shakquay]

This is the first problem I've run into while selling on Ebay.  I'd like some input if you wouldn't mind.

I sold an action figure (from 2005) that should beep and light up.  It doesn't - the batteries are old.  In my listing, I listed the item as NEW because it is in it's original, unopened package.  In the description I wrote "The batteries inside are dead.  He does NOT make any lights or sounds as-is."  My buyer opened a return case saying I can't list the item as new if the batteries are dead and that he shouldn't have to read the fine print.  I don't know whether or not to fight it.  The item sold for $11.65 free shipping.  I'd appreciate advice.  Thanks!

[soh.maryl]

To me, "new" implies brand new just like it was from the store.  I'm guessing this is not something where you can replace the battery, or you would have done that before shipping.  Personally, I'd refund and tell him to keep it unless you want to refund, pay for return shipping and then receive back an item that's not sellable.  

[iowa_east_coast]

eBay will side with the buyer, if you list it as new - 

New: A brand-new, unused, unopened, undamaged item in its original packaging (where packaging is applicable). Packaging should be the same as what is found in a retail store, unless the item is handmade or was packaged by the manufacturer in non-retail packaging, such as an unprinted box or plastic bag. See the seller's listing for full details

[shakquay]

Okay, thank you both.  It helps my worrisome nature to get advice.  I appreciate it.