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.