The eBay / trademark dance evolves

Years ago eBay was a problem for trademark owners, who were very exercised about what they regarded as a casual attitude toward the sales of counterfeit merchandise on its website — which was, and is, a serious problem. Speaking to IP lawyers at a recent INTA committee meeting, I had the impression that there was genuine sense that eBay has succeeded at changing the impression that it regarded this as the markholder’s problem.

But has the pendulum swung too far in the opposite direction? Ed Foster writes:

As with all of EBay’s VeRO notices, the reader was told that her only recourse if she thought the takedown was a mistake was to contact the intellectual property owner who had made the claim. So she wrote to the Nervous Tattoo “fraud” department and attempted to persuade them with the receipt, detailed pictures of the merchandise with the AAFES tags still clearly attached, and an e-mail from AAFES headquarters confirming the merchandise was authentic. But the folks at Nervous Tattoo seemed uninterested in determining whether the goods were actually counterfeit. Instead, all of her very polite queries to the Don Ed Hardy fraud staff received terse, nasty responses accusing her, AAFES, and basically anyone else selling their merchandise on EBay of being crooks.

While the reader wanted to get her auctions reinstated, her bigger concern was getting the suspension of and black marks against EBay account removed. “I have been with EBay for over eight years with thousands of all positive feedback reports — not one neutral, not one negative,” she wrote. “I have worked very hard for a long time to maintain my feedback rating. I am an honest person and I have done nothing wrong. I feel like my legs have been kicked out from underneath me.”

He reports that the user eventually found someone at the company who helped to lift the ban. It seems as if eBay has not necessarily gone too far — essentially, it still considers counterfeiting the markholder’s problem. It is sharing a little of that burden by aggressive takedowns, but leaving the markholder and the eBay seller to sort it all out.

What else can eBay do without becoming so involved in the process that it will hurt profitability or, no less important, expose it by virtue of its higher involvement to a greater likelihood of third-party liability for infringement? The answer seems obvious: Provide a bona fide contact name for the company whose goods or trademarks are at issue, and perhaps even facilitate communications between blacklisted sellers and company reps. Is that so hard? I can’t claim to know. But in light of this story, it seems like a bit of fine tuning that is worth the investment.

Ron Coleman

I write this blog.

7 Replies to “The eBay / trademark dance evolves

  1. I, alone, report 100’s of counterfeit handbag listings to Ebay every week only to check the daily ending listings and see 90% of what I report selling out to the end. Ebay has not shown in the past 2 years hardly any inclination to protect its buyers. They cater to their precious powersellers who get away with all but murder and make their fee money, and show no remorse when buyers get taken. They allow their ‘powerstealers’ to overcharge with enormous shipping fees where for anyone else the ads get canceled. I hope the designers all get together in a court of law and sue this company for their carelessness and self rightousness. They deserve all the fines and penalties the law will allow.

  2. in response to JC Seri…

    I, alone, report 100’s of counterfeit handbag listings to Ebay every week only to check the daily ending listings and see 90% of what I report selling out to the end***
    Just because you,have decided it is your job to police ebay, does not mean you are 100% right, 100% of the time. It appears as if ebay finds you to be 90% wrong, 100% of the time.

    Ebay has not shown in the past 2 years hardly any inclination to protect its buyers. They cater to their precious powersellers who get away with all but murder and make their fee money, and show no remorse when buyers get taken***
    again..Just because you,have decided it is your job to police ebay, does not mean you are 100% right, 100% of the time. It appears as if ebay finds you to be 90% wrong, 100% of the time.
    The 10% of the auctions that are ended are what they can clearly see would hurt their buyers. The other 90% are all subject to a dispute being filed on the basis that the item is a fake and 100% of the time a refund is granted. That is IF the item is actually a fake.

    ***They cater to their precious powersellers who get away with all but murder and make their fee money, and show no remorse when buyers get taken. They allow their ‘powerstealers’ to overcharge with enormous shipping fees where for anyone else the ads get canceled***
    Sounds like you may have some personal issues over possibly failing at a career selling on ebay???

    ***I hope the designers all get together in a court of law and sue this company for their carelessness and self rightousness.
    I would definitly have to say that anyone who sets themself up as a perfect judge over,what is and what is not,counterfeit and then wishes things like this on the people they are judging. ALL because, their word was not taken (without question) on items they have never seen except in maybe a couple pictures. Is definitly high minded and self righteous.

    And as far as what someone else deserves…anyone who has nothing else to do in life but sit and look for someone to report, who may possibly be doing something wrong…deserves to suffer in frustration, anger and hatred. No good has come from any of your actions, the buyer has still bought their purse, the seller has still sold the purse, ebay has made their fees and all of the couterfeits have been reported, once they are received and the refund is given everytime, all without your help.
    Maybe you should find a new career, possibly in politics God knows, we can never have enough people running for office who are perfect and will commit their every waking moment to rid our society of the wrong doers. lol

  3. I just received a eBay Alert that cancelled an auction for Adobe Creative Suite 3 (mac) upgrade. This is an unopened, extra copy, I purchased a month ago from Amazon. Since they won’t take it back and I don’t need it, I listed it on eBay. Day before auction ended, I get an alert and takedown. For what? Some over-zelaous, self-righteous Nervous Tattoo copyright fiend (likely was outbid) notifies ebay that I am in VeRO (violation of a copyright). For listing a product that is Adobe’s? if this was a reseller violation, the item was never opened/unsealed (still in shrink). And Amazon has no policy that I can resell items at a loss? What if I had a letter from Adobe saying, I can do whatever I want as they own the software, I am just reselling an unused license? What the hell does this have to do with some greedy, T-shirt franchise? And how dare ebay KneeJerk the seller without due process?

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