posted on April 13, 2001 07:25:13 PM
I came home last friday night to a message from ebay informing me one of my auctions had been closed at the request of a VERO member. The e-mail went on to inform me that if I felt there was a error I should contact they VERO member directly ,so I e-mailed him asking how I was infringing on his rights by selling a used item . He replied by directing me to ebay page on infregment.
I have sent him 7 e-mails since requesting specfics as to what rights he held that he felt I was infringing on finally he replied tonight same thing ..."go look at ebay's page on infringing".
I responded tonight by informing him that unless he could provide specfics I would report him to safe harbor for fraud in filling his vero request
The item in question is a used beer advertising clock
To make the story more interesting at the time he cancled my auction there was a identical item listed (not by him) my item and the other were both at the same bid amount with mine cancled the other one sold niceley. Yet another identical item was listed sunday (again not by him)and he has not cancled it.
anyone have similar experiances .....thoughts on my options
posted on April 13, 2001 07:54:26 PM
You don't know whether the similar items then for auction on eBay were from the VeRO member or not. Many sellers sell with multiple ID's- they may or may not match the name on file with VeRO. My VeRO company name doesn't match the eBay ID that I most offen sell under.
1. Did you take your pictures (or scans) of your item yourself?
2. Did you create your auction description entirely yourself? Or did you take bits and pieces (or perhaps more) from the similar auction on eBay?
Your recourse is outlined by eBay in the email they sent you. If you're willing to declare under penalty of perjury that you've not infringed by using the pics or description of another, eBay will permit you to relist your auction.
If you're not willing to do that, why not?
(Adding- the VeRO member is under no obligation to tell you what was infringing, or to reply to you at all.)
Steve
[ edited by magazine_guy on Apr 13, 2001 07:55 PM ]
posted on April 13, 2001 08:09:45 PM
steve
My pictures ... my descreption I hadnt't seen the other item till I did a search..The Ebay e-mail tells me to contact him and try to work it out so that is what I am trying to do.
How can I state that I am not infringing without specfics as to what he feels I am infringing on..
"Your recourse is outlined by eBay in the email they sent you. If you're willing to declare under penalty of perjury that you've not infringed by using the pics or description of another, eBay will permit you to relist your auction. "
I didn't realize that was a option I will check it out ....thanks for your response
posted on April 13, 2001 08:43:47 PM
laum
Go to site map on the top of the ebay page. that is a good question about to vero members which is why I think they should have to state what it is that you are infringing on
posted on April 13, 2001 09:01:16 PM
Yes, you need to register as in intellectual property owner while making an infringement complaint. This involves signing a hard copy under penalty of perjury and faxing it to eBay. Thereafter, VeRO members can make infringment notices to eBay by email.
Skip- sorry if I sounded accusatory. About half the time that I have an auction closed because someone has cut and pasted my lengthy detailed description verbatim, I receive an innocent email query asking what was infringing about their auction. Some folks honestly may not know that they can't copy descriptions and photos, I guess.
Here's the info eBay provides to folks who have had auctions closed by VeRO-- outlining the appeals procedure. The form that must be completed is also included. This whole process is eBay's way of complying with the DMCA.
Steve
******************
"eBay recognizes that sometimes an auction may be mistakenly identified by a Verified
Intellectual Property Owner, its agent, or law enforcement, as including an infringing or otherwise unauthorized or illegal item. In the event that such a mistake occurs, you should contact the complaining party directly. eBay will gladly allow you to re-list the item upon receipt of acknowledgement of the mistake from the complaining party."
"Alternately, if the complaining party does not agree that the allegation was in error, you may also provide eBay the attached Counter-Notice Regarding Ended Auction. The Counter Notice form requests a sworn statement under the penalty of perjury and other information which substantially complies with the requirements of the Digital Millennium Copyright Act, 17 U.S.C. section 512, which states:
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 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 from such person."
"Please fill out the Counter-Notice form for each occurrence of an alleged act of mistakenly reported or misidentified infringement and return it to the address provided below. We require that you physically sign the form. Notification from a seller that fails to comply with the provisions above shall not be considered as providing actual knowledge or an awareness of facts or circumstances sufficient to require eBay to allow re-listing of the removed items. Upon receiving the original of your fully completed Counter-Notice, eBay will notify the reporting entity of the Counter Notice and inform that entity that eBay will allow the re-listing of the removed items within 10-14 days, unless, following receipt of the Counter Notice, eBay receives notice from the reporting entity that it has filed an action seeking a court order to prohibit you from re-listing such infringing items. If the reporting entity disagrees with your Counter-Notice, they may file a legal action against you to prevent the re-listing of the ended auction item(s). Alternatively, if they notify us in writing or by e-mail that they no longer object to the auction item or material, we will allow it to be re-listed."
Very truly yours,
eBay Inc.
COUNTER-NOTICE REGARDING
ENDED AUCTION*
I. Penalty of Perjury Statement. I CERTIFY UNDER SWORN PENALTY OF
PERJURY that I am sending this notification on the basis of my good faith belief that the
auctions referred to below do not involve infringing materials or uses and have been
identified by a Verified Intellectual Property Owner, its agent, or law enforcement as
infringing by mistake or due to misidentification: (List Auction Items Below)
_____________________________________________________________________
_____________________________________________________________________
II. Consent to Federal Jurisdiction. I consent to the jurisdiction of the Federal District
Court for the address provided below, or if such address is outside the United States, I consent to jurisdiction of the Federal District Court, County of Santa Clara, California.
III. Consent for Service of Process. I agree to accept service of process from the Verified Intellectual Property Owner, its agent, or law enforcement.
IV. Contact Information. I certify that the following contact information is accurate and valid. I acknowledge that eBay will compare the contact information provided herein with my eBay contact information, and false or fraudulent information may result in suspension of my eBay account.
V. I understand that my knowing misrepresentation herein that material was removed by mistake or misidentification may make me liable under federal law for damages, including costs and attorneys’ fees. See 17 U.S.C. section 512.
VI. I understand that if the reporting party disagrees with the Counter-Notice it may file a legal action against me to prevent the re-listing of the ended auctions.
VII. Acknowledgement. I acknowledge that this notice is filed under penalty of perjury.
I may be contacted at:
Name____________________________________
Street Address____________________________________
___________________________________________
City and State____________________________________
Zip____________________________________
E-mail____________________________________
Telephone____________________________________
Fax____________________________________
Date____________________________________
Signature____________________________________
UNDER SWORN PENALTY OF PERJURY
Send to: eBay Inc., Attn: Legal Counter-Notice, 2145 Hamilton Ave., San Jose, CA 95125.
Attach to this notice any relevant correspondence, including emails, with eBay or the intellectual property owner.
* This Counter-Notice complies substantially with the requirements of the Digital Millennium Copyright Act, 17 U.S.C. section 512.
*******************
posted on April 13, 2001 09:32:40 PM
This sounds kind of crazy - that they will shut down an auction if the description is similar.
For example, I am selling a CD and use the following description.
George Winston CD, Summer, Brand New.
And it happens that someone else also typed in the same description in any part of their auction description. I can now make a VERO claim and have this person's auction closed? I mean, even if the other seller appeals and win, the other seller has already suffer damages from having to relist and spending time on the matter.
I am for copyright protections, but this sounds like a little bit over the edge. Of course, I am not sure how often VERO is used on auction description infringements.
posted on April 13, 2001 09:33:44 PM
steve
That is not what they sent me here is what they sent:
We regret to inform you that your listing:
xxxxxxxx .....COOL !!
has been ended at the request of xxxxx, a member
of eBay's Verified Rights Owner (VeRO) Program, because
they filed a sworn statement that it offers a product or contains
material which violates their copyright, trademark or other
rights. In the interest of protecting all eBay users, we end
such listings to avoid any association with potentially
infringing or unlawful items.
We understand that sometimes mistakes can be made. If
you feel your listing was ended in error, contact the VeRO
Program Member directly by emailing them at [email protected]
Of course, eBay is available to answer questions, but since only
the rights owner understands their products and policies, we
encourage you to contact them first. If we agree a mistake has
been made or the VeRO Program Member notifies us, we will
allow you to relist the item.
We also understand that even if your item is infringing, you may
have been unaware of that fact, and may have listed the item with
the best of intentions. Unfortunately, even if this is so, you still
could face potential liability, so ending the auction is still necessary.
to learn more. All Bidders have been notified and any associated
fees have been credited to your account.
**Keep in mind that listing of prohibited, questionable or infringing
items, or the re-listing of ended items without the approval of eBay,
can result in your suspension from eBay.
posted on April 13, 2001 09:41:46 PM
You could make the VeRO claim, I suppose, under these circumstances, but it wouldn't be warranted in my view. A short, 5 word factual statement about the item doesn't involve any original or creative thought, and is therefore likely to be common among descriptions of similar items. I would consider that an abuse of the process.
On the other hand, I sometimes take a considerable amount of time crafting lengthy (400 word or so) descriptions, including many key words for search engines, including my qualitative opinion of the piece, and the like. When I see this same description elsewhere, exactly as I created it, word for word, there is no doubt that it has been copied from my auction, and is infringing. Those who use my work to compete against my own auctions are infringing, and I have no qualms about having their auctions closed.
The letter I posted is the one they will send you if you inquire further of eBay, telling them that your item was not infringing, and demanding an appeal. They don't post this info on site, to my knowledge; they probably don't want too many folks pursuing it.
If you're right, I'd go for it.
Aside from pics and descriptions (the two areas I deal with), it seems the most common source of infringing auctions is trademark misuse. If a user takes a trademarked item, and changes it into something else to sell, the trademark holder will sometimes have the auction ended. Ditto if the seller uses a trademarked name in the title of an auction to draw bidders, even though the item for sale doesn't carry the trademark (usually "like xxx" or "fits XXX" where xxx is a trademark). Any chance your auction fit into one of those categories?
posted on April 13, 2001 09:49:51 PM
Steve
I can understand your frustration a while back I had someone steal my ad .It was for a high end item and I had spent over a hour on the pictures and HTML it was a GOOD ad . I emailed the person asked him to stop and got a sarcastic response .I went to safe harbor and my recollection was they said in essance too bad...maybee this was before vero. Interstingly this other user still uses my pictures for this item he has however changed the text and if you look at his auctions I don't beleive he owns a camera as all of his pictures a markedly different I think he has sotlen them all..
But getting back to my problem ebay is telling me to contact him to see how I am infringing and he refuses to discuss it
It's not worth risking suspension maybe i will let my wife listthe item on her account
But I still feel he owes me a response with the specfic reason
Thanks for your posts
Skip
I agreed with you 100% about protecting your auction descriptions. But, it seems like the system is open for abuse.
For example, it seems that skip555 had his auction closed because a competitor did not want him around when he was selling his item. At least, it seems that way to me when 7 emails had been sent and no response back from the complainer about the cause of the infringement.
I guess the problem is a copyright infringement case thru normal legal channels gives both sides an opportunity to present their case. A VERO case does not really seemed to offer that opportunity without already causing damages to one side.
posted on April 14, 2001 08:21:56 AM
If it is a used beer advertising clock, the VERO report would have to come from the beer company, not another eBay seller. And there are Supreme Court decisions defending the right of resale of legitimately produced items.
BTW ... the proper way to respond to the VERO is to FAX a form to eBay letting them know that the claim is erroneous and demanding that they "restore the content" within the legal 10-14 days unless the VERO complainant files a suit in federal court charging you with violating copyright.
laum1
... For example, I am selling a CD and use the following description .... "George Winston CD, Summer, Brand New."
There is NOTHING COPYRIGHTABLE in that sequence of words. To have something copyrightable, you have to show "creative effort" in the wording. If you had a really great description about the way the CD made you feel ... that IS copyrightable.
posted on April 14, 2001 09:16:29 AM
There was a thread about this awhile ago and a power seller joined in and said. How do you think I can be a power seller without taking someone elses description. I don't have time to write my own. To do it is one thing but to come out and admit it is another. I can see if you and another seller are selling the identical item how the descriptions can almost be the same. Nothing is sacred anymore. Can you put disclaimers in your description? Can the item you were requested to remove be launched again with a different description and picture?
I am not sure - I think anything I write has a common law copyright within U.S. law. That is, I am protected automatically. NOW, whether or not I can prevent someone else from creating the same phrase is of course up to a court of law.
The problem I see here is that ebay does not allow that legal process to happen before they pull an auction. And there does not seem to be much recourse against the party filing the claim if the claim is not a valid one.
I certainly have no problem with ebay pulling an auction if it was selling illegal copies of products and infringing on the owners' rights. But to pull auctions based on auction description or pictures without hearing from both parties seems a little unfair to me.
For example, if I happen to scan an image of that CD and my scan looks similar to another seller's scan of the same CD (which it can easily happen), am I given the right to do a VERO on that seller without proving his scan came from me?
It may seem extreme at this point to worry about all this. But, with the big companies coming on to ebay, it may turn out to be a problem one day. For instance, I was searching for the Ronco grill machine. It seems like most sellers on ebay have the same picture up, two chickens being cooked inside the machine. It certainly looks like the picture came from the Ronco ad (unless everyone happens to buy the same size chicken). If Ronco decides to do a VERO and claim that the picture come from their ads, it would be tough for the small seller to fight back.
posted on April 16, 2001 05:43:34 AM
Further developments...I finally received a response yesterday after threatining to go to safe harbor charging fraud.
In essance he says he owns the patent on can clocks.
I replied that his patent would surly prevent me from manufacturing and marketing a can clock but it certainly was not a infrigment on his patent rights for me to sell a used item.
I will now contact ebay for permission to relist.
You're right- if you own it legally, you can resell it-- assuming it's not a counterfeit that infringes on someone's trademark.
And I seriously doubt that he holds a patent on "can clocks," from my understanding that's way too broad a concept to obtain a patent. I think he's been smokin' his sox.
posted on April 16, 2001 09:45:41 AMlaum -- Titles and phrases aren't copyrightable. Nor are facts. However, the language used to convey those facts can be.
I agree with abacaxi -- in the short description of the CD, there wasn't anything there that would fall under copyright protection. There wasn't any language OTHER than the facts.
On the issue of scanning a CD cover -- that's a tricky issue. I could see where the scan could be considered a copyright violation of the CD cover. I have trouble thinking you could consider YOUR scan of a CD cover to be covered by copyright. (But I could be wrong, I suppose.) I'll just leave this issue alone. There are too many questions in my mind about it. But in general, I can't imagine a scan would be copyrightable. Photos, yes (for instance, the Mona Lisa is in the public domain, but someone's photo of it would be covered by copyright).
Glad you finally got an answer to this little mystery. What a crock, eh?
posted on April 16, 2001 06:22:52 PM
Has the patent on "can clocks" eh? Ask him to produce the patent number or face charges of willingly committing fraud and perjury. I'm sure eBay will have NARU'ed by the end of the week....
posted on April 16, 2001 08:04:51 PM
I sent him a e-mail friday saying he had not provided me with justification for ending my auction his reply to me was:
I ANSWERED ALL YOUR EMAILS.PLEASE CHECK YOU SERVER. I HOLD THE US PATTENT
"CLOCK ON A CAN". ITS AS SIMPLE AS THAT.HOWEVER AS STATED TO YOU IN PREVIOS
EMAILS, IF YOU ARE SELLING A PRODUCT THAT IS PROTECTED EBAY WILL TAKE IT
OFF. IN THIS CASE THEY TOOK IT OFF.I UNDERSTAND SOMETIMES PEOPLE BUY COPYCAT
PRODUCTS., AND TRY TO SELL IT WITHOUT KNOWING THAT THEY ARE INFRINGING. THAT
SEEMS TO BE THE CASE HERE. I STONGLY SUGGEST TO USE THE VERO PROGRAM IF THERE
IS ANY DOUBT ON ANYTHING YOU SELL.
TRULY YOURS Bxxxx
to which I responded:
Bxxx
Thanks for your reply I appreciate that you hold the pattent And I agree that would prevent me from producing and selling new can clocks .
..Patent rights do not extend to used items . If they did there would be verry little for sale on ebay.
I will treat htis as a honest mistake on your part and I will contact ebay and relist.
It is a great product I hope you do well with it
Thanks for clarifing with me
Skip
his lateset response:
PLEASE UNDERSTAND THAT IF YOU NOINGLY SELL AN ITEM THAT IS PROTECTED WETHER IT IS NEW OR OLD IS AN INFRINGEMENT WITHIN THE U.S PATENT LAWS.YOU DO WHAT YOU FEEL YOU HAVE TO DO AND I WILL DO THE SAME.
THANK YOU
Bxxx
I have examined the item closley and find no patent marks. /evan if there were I can see no way that I am infringing on his patent by selling a used item.
As a anology I can not manufacture and sell a car and call it a Ford but I certainly can sell a used Ford.
There have been three other listings of this item since he knocked mine off and I find it interesting that he has not found that they infringe.
I beleive it is fraud on his part in filing the vere claim. I think I will pursue it with safe harbor
Safeharbor cannot help you. It's out of their hands. You have to go through VERO. Send an email to [email protected] and tell them that you were unable to come to an agreement with the VERO member. Tell them that you have a right to re-list your item unless the VERO member files suit against you (in court) within 10 days. They will send you some forms to fill out. They will send a copy to the VERO member informing him that unless he files suit against you within 10 days they will have no choice other than to let you re-list the item. If the VERO member really owns the patent, he just may sue. If he does, you can either fight it out with him in court or drop the matter entirely. He may well let it drop himself even if he IS the patent holder.
posted on April 16, 2001 11:00:26 PM
This is really interesting and I am learning more all of the time. I hope you will keep us all updated on what you do and also what the outcome is.
Also wanted to say thank you to all who posted on this thread. I was clueless about VERO and while it still confuses me a bit, I am closer than ever to understanding. So thank you!
posted on April 17, 2001 05:22:46 AM
I'm glad others ae also finding this thread inforamitive I sure am .
I just did a search on ebay with his user id and found what he makes.
I had tried this when I got the vero notice but he had nothing listed at that time and completed item search was down. He still has nothing currently listed but under completed auctions I found his stuff
What he manufactures (and I use the term losley)is not evan close to what I am selling.
I am listing a advertising piece 24" tall 10 in wide molded plastic.
He takes actual beer and soda cans and puts quartz clock movments in them and sticks plastic numbers on !!!
Under the vero program I have to file paperwork with ebay and wait 10 days for him to file suit and then I can re-list.
The problem as I see it is evan though I am without any doubt correct. He can still file suit and I am obligated to respond : time and $$$
I will probably let my wife list it under her ID. and not file vero paperwork.
I would like to file a complaint with vero since he had no justifacation in ending my auction but I suspect they will do nothing unless I file the papers leaving myself open to suit. from someone who may be a can or two short of a 6 pack.
posted on April 17, 2001 05:57:27 AM
Get the patent number! He is REQUIRED to have one. Then look it up. You will probably find that it means NOTHING! He probably, like an idiot, went through one of those "Patent Services" scammers and got a "look and feel". For your product to infringe on it, it has to look EXACTLY like the one he patented.
posted on April 17, 2001 07:58:02 AMI would like to file a complaint with vero since he had no justifacation in ending my auction but I suspect they will do nothing unless I file the papers leaving myself open to suit. from someone who may be a can or two short of a 6 pack.
You're right about VERO doing nothing. The only thing that you can do at this point is call his bluff and dare him to take you to court within 10 days. If he does, you fight it out in front of the judge. If he doesn't, you get to re-list. Af far as asking him to produce a patent number is concerned, he has no obligation to do so unless the matter ends up in court. He filed with VERO, the ball is in his court. But you CAN try for a turnover by emailing VERO and forcing him to either "put up or shut up" (file suit or drop allow you to re-list).
posted on April 17, 2001 08:15:01 AM
My fear is that he does file suit While he dosen't have a leg to stand on he is in Boston I am in south fla.
Am I going to fly to boston to defend suit ,hire a lawyer in boston ?
No,I think he's got me.
I have emailed vero and ebay and asked how to file a complaint on fruadulant use of the vero program but I truly don't expect to get anywhere
So it looks to me as though a vero member can end any auction at will, with impunity.
posted on April 17, 2001 09:27:36 AM
If it were me I would force his hand by filling out the VERO paperwork. The worst that can happen is that he does indeed file suit. Big deal. If he does, just don't show up. He wins by default and you're barred from re-listing the item. You have lost nothing. You can't list it right now anyway. My bet is that he doesn't even file. IMO it wouldn't be worth his time and expense when you only have one item and it is used.
posted on April 17, 2001 09:48:35 AM
If he sues and I don't show up he wins by defualt. I beleive he could recover court costs and posibbly monatarry damages.
I really don't know is anyone familar with how this aspect would work ?
If he sues would my liability be limited to not relisting or would I likley be facing monateery costs also ?
Keeping in mind best case is if I list this item I am looking at 20-30 dollar profit.
