Best of 2014: Lady calls me up... Blog about trademarks, brands, copyright and free speech by lawyer Ron Coleman. Since 2005!

Originally posted on February 27, 2014.

Did you ever wonder what happened in the Val Colbert declaratory judgment action against Chanel? Yeah, I forgot about it too, and evidently I was not alone. Because something did happen, and no one seemed to notice.

But more about that in a minute. Here’s why I even thought of it.

Lady calls me up — can I do anything for her? She sells, or someone else sells but she sells them for her, or the other way around — anyway, there were these listings on eBay, for buttons that were removed from authentic designer clothing. In other words, authentic designer buttons, being sold detached from the clothing they came in with.

And eBay, it appears, removed these listings, and there ought to be a law!

There is a law, actually. It’s the law of contracts, and, all things being equal (yes, they never are, but let us say it), it’s the law that governs almost everyone’s relationship with eBay, which is a private company. Your contract with eBay, as a seller or a buyer, is of course subject to its rules and regulations. And just like Mom’s and Dad’s rules and regulations, and those of almost any private party that are not restricted by the criminal law or civil rights concerns, those rules can be whatever the parties agree to. Or, in the case of eBay, whatever anyone who wants to play has to agree to, because for most of us, eBay will not negotiate.

eBay will negotiate with others, however — others who are not like you and me because they are rich , if only (though seldom only) in brand equity. These parties have, at least in theory, the ability to upset the nice way it’s going for eBay, litigation-wise, on IP issues such as secondary liability for trademark infringement.

And these parties, many of whom are designers, really really really hate it when people do anything — anything! — well, anything other than burn it up or shoot it into outer space — with the hardware, buttons or other stuff bearing their logos but not the stuff they were originally attached to. I should not have to explain why they hate this. And by all indications, they have made this fact clear to eBay, which, despite what you think, mostly wants to work with these outfits. For the goose does continue to lay very nicely the golden eggs.

And eBay hears it.

So, we know, again, that eBay can remove your listing for any reason or for no reason, almost all the time. Many of the reasons it does have for such removals do exist, however, and they have to do with intellectual property — and not always with infringement, much less counterfeiting. No, your authentic stuff may be pulled from eBay even though it is authentic, as eBay explains:

If we removed your listing, it’s probably because it either violated the law or one of our policies. Or, it may have been removed because the item’s rights owner (for example, Coach or Louis Vuitton) asked us to remove it. This can happen even if your item is genuine.

So how about the buttons, the ribbons, the hardware? For your non-listing pleasure, here is the specific rule that you agreed to when you agreed to sell on eBay which addresses that question:

Some brand name products come with accessories, a warranty, or protective packaging as part of the purchase. For example, a watch may be packaged in a custom box and may come with the manufacturer’s warranty.

If the manufacturer doesn’t offer the accessories or other extras as a separate purchase, those items can’t be listed on eBay without the accompanying branded product. . . .

Not allowed

Accessories or packaging without the accompanying product. Examples include:

Dust bags

Plastic tags (including a tag with a serial number)

Ribbons

Tissue paper

Box for a branded watch without the accompanying watch

Empty jewelry pouch, tin, or other container that may be used to hold and sell a similar or identical product

Warranty or certificate (blank, valid, or expired) without the accompanying product

No, buttons are not on the list, at least not explicitly. They are included, however, in “Accessories or packaging without the accompanying product,” presumably.

Why does eBay have this policy?

For a safer buying and selling experience on eBay, we prohibit listings for certain products that may be used to facilitate the sale of counterfeit items or enable fraud.

There you have it. It’s a lot easier to pass off a fake designer garment or other product as genuine if you can include in your listing a high-resolution close-up of genuine accessories.

Now, as it happens, this rationale, quite legitimate, also prevents traffic in such accessories for uses that themselves may also be quite legitimate. This would include using such accessories or hardware to replace lost or broken ones on genuine products, or just collecting them to appreciate their beauty, or because you have OCD.

And it would also include unapproved, unofficial, legally murky (perhaps) uses such as… transforming them, they way Val Colbert did, as shown in the photo at the top of this post.

Oh yes, right — what happened with that lawsuit?

It was very quietly dismissed, it appears, mere weeks after it was filed. See?:

I had to go onto PACER to find that. Nothing more, it seems, was reported.

But I will report you this: You won’t find any more items for sale on the Val Colbert website bearing identifiable designer names or marks on them any more. I know because I looked. Beautiful stuff, though!

Did you read that closely? I am playing with you!

I said “for sale” on the website. At least, not right now.

If you are paying close attention, though, and you point your browser there, you might see something yes-with-designer on it — something intriguing and interesting, if you’ve read this far, that you could very easily miss — as I very nearly did!

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