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eBay operates a program called VeRO (Verified Rights Owner) which makes it
easy for the owner of a copyright or trademark to remove auctions which
violate his IP rights.
Sometimes too easy. In other newsgroups I see frequent reports from people
who had auctions removed for reasons which seem highly suspect, and
sometimes downright wrong. As far as I know, eBay has no process for
correcting these errors.
An extreme example was posted recently in rec.collecting.books. Two auctions
were removed due to a report of trademark infringement by Alcoholics
Anonymous. Each contained the words "anonymous" at the beginning of the
title, and "alcoholics" at the end.
To initiate the VeRO process a rights owner must send eBay a report form
which says, "I, the undersigned, state UNDER PENALTY OF PERJURY that" he or
she is the owner of IP rights, and "I have a good faith belief that [one or
more specified auctions]... infringe the IP owner's rights."
I have a couple of questions for people familiar with relevant areas of law.
First, what standing does this "under penalty of perjury" wording have? My
understanding was that this perjury occurs only if an oath or signed writing
is witnessed by a person with appropriate authority, such as a notary or an
officer of a court.
Second, what legal remedies would apply in a case like this? It seems to me
that using a false claim of trademark infringement to cancel an auction is a
violation of the seller's rights, but under what theory? With this best be
pursued as an antitrust violation? What standard of care would a court be
likely to apply to the rights owner's "oath" that he believes "in good
faith" an infringement has occurred? (Alcoholics Anonymous probably does
believe "in good faith" that the auctions do infringe because the two words
that constitute its trademark appeared in the auctions' titles, but I don't
think that should be enough!)
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"Jonathan Sachs" <nobody@nospam.accepted> wrote
First, what standing does this "under penalty of perjury"
wording have? My understanding was that this perjury occurs only
if an oath or signed writing is witnessed by a person with
appropriate authority, such as a notary or an officer of a
court.
At least in Californa there are two ways to swear to a written
statement. One is the traditional way of taking an oath before a
notary or whoever is qualified to do that.
The other is simply to swear under penalty of perjury, which has the
same effect. If what you say is wrong and you knew or should have
known that it was incorrect, you could be guilty of perjury.
Second, what legal remedies would apply in a case like this? It
seems to me that using a false claim of trademark infringement
to cancel an auction is a violation of the seller's rights, but
under what theory? With this best be pursued as an antitrust
violation?
Interference with a prospective economic advantage is what occurs to
me at the moment.
What standard of care would a court be likely to
apply to the rights owner's "oath" that he believes "in good
faith" an infringement has occurred? (Alcoholics Anonymous
probably does believe "in good faith" that the auctions do
infringe because the two words that constitute its trademark
appeared in the auctions' titles, but I don't think that should
be enough!)
I don't specifically know. But if they are informed once that they
are wrong, they wouldn't be able to use the same defense if they ever
do it again.
Stu
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On 25/2/04 13:17, in article hs7p30hst2u4ukj0m96a1njp9alo0mlagn@4ax.com,
"Jonathan Sachs" <nobody@nospam.accepted> wrote:
First, what standing does this "under penalty of perjury" wording have? My
understanding was that this perjury occurs only if an oath or signed writing
is witnessed by a person with appropriate authority, such as a notary or an
officer of a court.
Perjury is defined in state law (mostly). That's the first place to look. It
is extended to tax returns and certain other non-notarized situations. And
California has abolished notarization for many or most probate documents,
but I'm sure perjury applies there. But I'm not licensed in California, so
what do I know.
Second, what legal remedies would apply in a case like this? It seems to me
that using a false claim of trademark infringement to cancel an auction is a
violation of the seller's rights, but under what theory? With this best be
pursued as an antitrust violation? What standard of care would a court be
likely to apply to the rights owner's "oath" that he believes "in good
faith" an infringement has occurred? (Alcoholics Anonymous probably does
believe "in good faith" that the auctions do infringe because the two words
that constitute its trademark appeared in the auctions' titles, but I don't
think that should be enough!)
A "trademark" dependent upon generic words is much less protected than one
made up of one or more invented words ("Kodak" for example, which George
Eastman invented, as I recall, partly expecting it to be a semi-generic word
for "camera". Even an invented word can become semi-generic, especially if
the owner is careless in protecting it (but perhaps they like it that way:
Xerox (but: xerography), Kleenex, Band-Aid. Aspirin is even more on point
(it's a protected trademark in Europe).
But you don't really expect eBay to practice law, do you? Aloholics
Anymomous almost certainly does NOT believe in good faith that their
trademark is being abused. They are bullying you, knowing or believing you
haven't the resources to fight back. If you've got damages (you probably do)
you could bring a small claims court action ... if you happen to be within
the jurisdiction of those who wronged you.
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On Wed, 25 Feb 2004 08:17:02 -0500, Jonathan Sachs <nobody@nospam.accepted>
wrote:
To initiate the VeRO process a rights owner must send eBay a report form
which says, "I, the undersigned, state UNDER PENALTY OF PERJURY that" he or
she is the owner of IP rights, and "I have a good faith belief that [one or
more specified auctions]... infringe the IP owner's rights."
The language seems close to, but not identical to that required under the
DMCA. The intent is to protect Ebay from liability by complying with the
DMCA safe harbor provisions.
I have a couple of questions for people familiar with relevant areas of law.
First, what standing does this "under penalty of perjury" wording have? My
understanding was that this perjury occurs only if an oath or signed writing
is witnessed by a person with appropriate authority, such as a notary or an
officer of a court.
It is not actual perjury. The law simply requires that false statement will
be treated as perjury. The DMCA only requires that the portion of the
statement indicating that the attorney is acting for an owner of allegedly
infringing material be under the penalty of perjury. The perjury penalty
would not attach even if the attorney knew that the allegation of infringement
was unfounded. It seems to me that any expansion of the perjury penalty by
Ebay would be unenforceable.
Second, what legal remedies would apply in a case like this? It seems to me
that using a false claim of trademark infringement to cancel an auction is a
violation of the seller's rights, but under what theory? With this best be
pursued as an antitrust violation? What standard of care would a court be
likely to apply to the rights owner's "oath" that he believes "in good
faith" an infringement has occurred? (Alcoholics Anonymous probably does
believe "in good faith" that the auctions do infringe because the two words
that constitute its trademark appeared in the auctions' titles, but I don't
think that should be enough!)
Penalties for deliberate misrepresentation are described in the DMCA and they
include attorney fees and actual damages. No penalties attach to the ISP as
long as they follow the rules. I'm not sure what penalties attach if the
rights owner is negligent or simply wrong.
Isaac
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Tam tamsuraiya@yahoo.ca writes:
But you don't really expect eBay to practice law, do you? Aloholics
Anymomous almost certainly does NOT believe in good faith that their
trademark is being abused. They are bullying you, knowing or believing you
haven't the resources to fight back.
eBay does I am sure have a team of lawyers on its side. So in a sense eBay
does practcie law.
The terms of service for eBay are written so eBay has broad discretion to pull
listings they don't want on the site. Basically, they can pull any listing at
any time for any reason or even for NO reason AT ALL-- which is arguably a
little scary (even though they don't pull that many listings and they usually
refund your listing fees when they do so. And even though they have a First
Amendment right to censor and/or edit their site as they see fit, just like any
other organization which has a web site.)
AA is an organization which is very protective of its trademark. They have a
reputation for protecting their trademark pretty aggressively. But they're not
in the business of bullying people for no reason.
I would try rewording your listing so it doesn't begin with the word
"alcoholic" and end with the word "anonymous"--- and see if AA is still
bullying you :-)
*****
Tim Horrigan <horrigan@aol.com>
*****
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Tam tamsuraiya@yahoo.ca writes:
I would try rewording your listing so it doesn't begin with the word
"alcoholic" and end with the word "anonymous"--- and see if AA is still
bullying you :-)
Just to keep things clear -- this was not my listing. I cited it as a
recent, clear example of abuse.
I have never had this problem myself, but it bothers me because it appears
to be systematic and recurrent.
In another case which came up recently, Sikorsky (the helicopter people)
shut down an auction for a plastic model of one of their products. They
claimed the model infringed their trademark. In this case rewording the
listing would be impossible -- there's no way you can accurately describe a
model of a Sikorsky helicopter without calling it a model of a Sikorsky
helicopter! (That is one of several reasons why I think their action was
indefensible.) The seller said that Sikorsky was going after the
manufacturer of the model, not just people who sold it on eBay, which fits
my conception of restraint of trade through abuse of a trademark.
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Just to keep things clear -- this was not my listing. I cited it as a
recent, clear example of abuse.
I have never had this problem myself, but it bothers me because it appears
to be systematic and recurrent.
In another case which came up recently, Sikorsky (the helicopter people)
shut down an auction for a plastic model of one of their products. They
claimed the model infringed their trademark.
Right now, there is no right of access to eBay. The law treats
on-line auction houses as if they were just like any other e-commerce
site, rather than as if they were common carriers.
For whatever reason, Sikorsky has decided that certain model kits of
their helicopters should not be sold on eBay. So, they have asked
eBay to pull listings of these kits, and eBay has decided to go along
with this request--- and the way things stand right now, there is no
way to force Sikorsky or eBay to leave these listings on the site.
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horrigan@aol.com (Timothy Horrigan) wrote:
Right now, there is no right of access to eBay. The law treats
on-line auction houses as if they were just like any other e-commerce
site, rather than as if they were common carriers.
For whatever reason, Sikorsky has decided that certain model kits of
their helicopters should not be sold on eBay. So, they have asked
eBay to pull listings of these kits, and eBay has decided to go along
with this request--- and the way things stand right now, there is no
way to force Sikorsky or eBay to leave these listings on the site.
I disagree. There are two issues here: whether eBay is acting within
its rights, and whether Sikorsky is acting within its rights.
The fact that eBay sellers have no "right" to list particular items
(if true) has no bearing at all on Sikorsky's actions. If I were
manufacturing widgets, I would have no "right" to expect any
particular widget dealer to sell them; but if a competitor used its
dominant market position to deter dealers from doing so, I would have
a cause of action.
The wrongfulness of eBay's action is more debatable, but I would not
dismiss it. The following factors ought to cause them serious concern:
It is unquestionably in a dominant position in the on-line auction
market, putting it squarely in the sights of antitrust regulators if
this type of issue ever reaches the courts.
If companies like Sikorsky are using the VeRO program to commit
antitrust violations (or to violate any other laws), eBay is not only
assisting them -- it designed, promoted, and now controls the entire
program which makes the violations possible.
It requires all members to accept a user agreement, which is a
contract. Contracts bind both parties. Thus eBay, as well as its
members, has obligations.
It publishes standards which determine whether particular listings are
acceptable or not. If it pulls listings which do not in fact violate
those standards, it is arguably liable for breach of contract.
I hope to hear comments about this matter from somebody who is
familiar with antitrust law, particularly as it relates to misuse of
intellectual property rights.
My mail address is jsachs177 at earthlink dot net.
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"Jonathan Sachs" <nobody@nospam.accepted> writes:
eBay operates a program called VeRO (Verified Rights Owner) which makes it
easy for the owner of a copyright or trademark to remove auctions which
violate his IP rights.
FWIW: you'll likely not get any help from eBay on this. They fold
like rice paper. Typical example: the $cientology cult has a crude
skin galvometer they call an "E Meter". Victims/members buy one for
hundreds or thousand of dollars.
But if a ex-cult member tries to sell his relic on eBay, the listing
is yanked as soon as it's noticed.
Hmmm: I recall there's law about the public status of shopping malls,
regarding discrimination therein. I wonder if there is a parallel
in eBay?
--
A host is a host from coast to coast.................wb8foz@nrk.com
& no one will talk to a host that's close........[v].(301) 56-LINUX
Unless the host (that isn't close).........................pob 1433
is busy, hung or dead....................................20915-1433
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Hmmm: I recall there's law about the public status of shopping malls,
regarding discrimination therein. I wonder if there is a parallel
in eBay?
Those cases have to do with the public's access to shopping malls, I believe.
A shopping mall's landlord have pretty much total discretion when it comes to
deciding whether or not you can rent space at the mall--- and they can and DO
ban certain categories of stuff from the mall. Not only that, they can let one
vendor sell something while prohibiting other vendors from selling the same
thing.
*****
Tim Horrigan <horrigan@aol.com>
*****
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David Lesher wrote:
Hmmm: I recall there's law about the public status of shopping malls,
regarding discrimination therein.
Only in California. IIRC, most states have made it clear
that a shopping mall can remove a customer for any reason,
or for no reason at all, as long as it's not for being
a member of a protected class.
But I'm posting from California, and I haven't kept
track of the case law in other states.
--
This account is subject to a persistent MS Blaster and SWEN attack.
I think I've got the problem resolved, but, if you E-mail me
and it bounces, a second try might work.
However, please reply in newsgroup.
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