Positive brand protection on eBay
April 11, 2008
It’s always bemused me why big brands either ignore eBay entirely, or sign up to the VeRO program but do nothing to establish themselves on eBay. I’ve long been of the opinion that brands would do well to have an active presence on eBay even if it wasn’t a profit making operation.
Many brands and even ticket promotors have attempted to control the eBay marketplace and and yet done little or nothing to make their products and brands legitimately available on the site. Step forward Red Letter Days, they have just announced the launch of their eBay shop and part of the reason for wanting a strong presence on eBay is to protect their brand.
- Angela Greenwood, Red Letter Days’ Online and Direct Marketing Manager
The MD of Red Letter Days, Bill Alexander, will be speaking at Catalyst later this month on the importance of building a strong brand and how to translate brand awareness into online traffic and sales. It will be interesting to hear more regarding their plans for eBay and how this fits into their overall brand awareness campaigns.
It’s refreshing to see a company building their brand and approaching the eBay marketplace in a positive manner, rather than just rushing to fill out VeRO forms. eBay is now maturing as a marketplace and brands that embrace eBay can expose themselves to the 14 million plus active users in the UK. That’s got to be a better strategy than simply attempting to prohibit others from selling your products on the site.
News in briefs
December 21, 2007
Just a quickie for those following the eBay/Tiffany fight: Eric Goldman has posted highlights from the post-trial briefs from both companies. Top jaw-droppers: Tiffany sent nearly 135,000 take-down notices to eBay in 2006, and eBay receives five million take-down notices a year from its “top ten complainers”.
Autodesk sued for abuse of VeRO
September 14, 2007
Many sellers assume that when their listings are removed by eBay’s VeRO programme, there’s nothing they can do. But one, Timothy Vernor from Seattle, trading on eBay as happyhourcollectables, decided to fight back at what he saw as unjust and illegal actions on the part of software vendor AutoCAD. Over a two year period, AutoCAD had five of Mr Vernor’s listings removed from eBay: the fifth removal resulted in his suspension from the site. The copies of AutoCAD that Mr Vernor sold were preused copies, which the original owners had finished with and which they believed they had the right to then sell on. It’s not cheap software either, at $4000 per copy it’s a significant investment and naturally people want to recoup some value when they no longer need the product.
Autodesk say they don’t sell their software; they sell a licence to use it which is non-transferable. That’s not obvious when you buy the software though: the licence is inside the shrink-wrapped software package so you don’t discover this until you’ve opened it. Autodesk say that by breaking the shrink-wrap seal, you have automatically accepted their terms and conditions. In the US a “shrink-wrapped contract†can’t be enforced: how can you agree to something you haven’t seen? The right to resell something you have purchased is enshrined in US law under the first sale doctrine: an individual has the right to transfer (sell or give away) a lawful version of a copyrighted work which is in their possession. You may re-sell a book, a DVD or a car without interference from the author, the film rights-owner or the car manufacturer, and so, the argument goes here, you can re-sell software without interference from the software manufacturer.
Timothy Vernor says Autodesk committed perjury and fraud when they signed the VeRO Notice of Claimed Infringement forms. The case has been likened to being prevented from reading and then reselling a book, which you purchased and paid for. Using VeRO to prevent resale of legitimately purchased authentic goods, once you’ve finished with them, is an abuse and should be stopped.
How to use VeRO to kill your competition
July 31, 2007
The VeRO program is a bit of a mystery to most eBay users. Often the first time they hear of it is the receipt of an email telling them their auction has been ended for breaching someone’s Intellectual Property (IP) rights. In normal circumstances it’s understandable you shouldn’t be using someone’s trademark, copyright or patent. In practise however it can be almost impossible to verify products from your supplier don’t infringe upon another manufacturers IP.
A major problem with the VeRO program is that some companies consider it a tool to control the market rather than to protect their IP. The VeRO program is not intended to either restrict sales or to control the price goods are offered at.
This popular misconception is still widely accepted e.g. in an article by the Internet Search Engine Database (ISEDB) titled “How Brands Can Mitigate eBay’s Aggressive Search Engine Advertising Tactics“.
They go on to state “There is a way for brands to address unauthorized sales activity on eBay for new merchandise, which essentially is an attempt to low-ball or undercut the retail pricing established through the corporate and authorized retailer channels.” That is going too far, there is absolutely nothing wrong with selling a product on eBay from a particular manufacturer and use of the VeRO program to limit or cease sales is an abuse of the program. VeRO is there to protect your copyright, trademark, or other intellectual property rights. It is not there to act as a price fixing tool.
Rob Chesnut (Head of Trust and Safety) at eBay Live!, made it clear he would not tolerate VeRO rights holders who use VeRO to control the marketplace rather than to fight fake products. He has actually in the past, following a conversation with a manufacturer who stated they use the program simply because they don’t want their products sold on eBay, terminated their VeRO membership as it’s blatant misuse.
The ISEDB article title is misleading and it’s opening statement encourages misuse of the VeRO program. Whilst VeRO is a great program to protect genuine IP rights restricting sales in an open marketplace or engaging in price fixing is wrong, and in many territories also illegal.
World’s richest woman wants to put *you* out of business
March 11, 2007
J.K.Rowling’s attempt to hold eBay responsible for the scammers who sell illegal Harry Potter ebooks on the site has gone populist, with fansites Mugglenet and JKR’s Army getting up a petition to demand that eBay police every single Harry Potter item sold on the site.
Hundreds of huge multinationals use eBay’s VeRO programme quite successfully to protect their intellectual property. No one from Rowling’s management team has been able to explain why they are incapable of using this, but instead must demand special treatment. If eBay stops being an open market place and instead has to potentially police and take legal responsbility for every item listed by sellers, this will be the end of the site as we know it: fees will go through the roof to pay for thousands of extra support staff, and more thousands of innocent sellers will be forced out of business. Perhaps to Rowling, famously richer than the Queen, this doesn’t matter: for thousands of children, and their parents, it does.
As usual, some hacks have spun this into a tale of “war on eBay”, as well as making close-to-libellous statements implying that just about everything sold on eBay is a fake. (Frankly, Ms. Brantley, perhaps you should stick with your diet and figuring out how to put bottles in a recycling bank. 
) Perhaps we should all take a calm step backwards here, and realise just who is a fault: eBay are not selling the ebooks, and Rowling and her lawyers should be going after the criminals, not the innocent parties. Moreover, they should consider who is *buying* the ebooks: aren’t these the very same Harry Potter fans from whom Rowling has made her millions? The fansites themselves should be trying to oust the traitors in their midst.
eBay & FACT to stamp out counterfiet DVDs
March 7, 2007
eBay today released the following announcement, stepping up a gear in the fight against fake merchandise being sold on their site.
eBay and FACT want to remind eBay sellers that listing pirated DVDs is illegal and ensure that buyers know they are bidding on legitimate products from reputable sellers.
The campaign includes a buying and selling guide which is now available on eBay.co.uk. The guide is written by FACT, the audio-visual industry’s trade organisation dedicated to fighting piracy. The guide warns eBay users of the dangers of – and penalties for – selling pirated DVDs, which include up to ten years imprisonment and/or an unlimited fine, and provides buyers with specific advice on how to avoid buying a pirated DVD.
Harry Potter and the pirates of eBay
March 4, 2007
Representatives of J K Rowling are calling on eBay to take stronger measures to ensure that pirate copies of the final Harry Potter book cannot be sold on the site. eBay’s policy is that it is up to rights holders to use the VeRO program to police listings themselves, but this has been branded “unacceptable” by Rowling’s lawyer, who called for pre-emptive blocking of electronic copies of the book. eBay’s spokesman countered that “it would be difficult to block such items without also blocking legitimate sales, like second-hand Harry Potter books or other merchandise”.
This response from eBay does seem a little lame. Listings *are* currently held for security checking before they’re allowed on to the site. This could be done for anything with “Harry Potter and the Deathly Hallows” in the title - though of course, if someone has just sued you *and* put out misinformation about the results, you might not be feeling very cooperative.
I can’t help thinking that blaming eBay for unauthorised Harry Potter ebooks is about like blaming Xerox for people making photocopies of the book. With a phenomenon as huge as Harry Potter, piracy is inevitable. If it’s driven off eBay, it will only be elsewhere on the net: if I were Rowling’s legal team, I’d prefer it on eBay where I could find it easily, track it down and stop it, than tucked away on some remote server outside the jurisdiction of British copyright laws.
Scotland on Sunday might primly comment that they “tracked down rip-off freelance translations in French, Spanish, German and Russian within days of [the last Harry Potter book] hitting the bookstands”, but is anyone really surprised about that? Faced with the world buzzing about a book and a ridiculous wait for non-English versions of it, of course pirate translations will appear: where there’s a demand, there’ll be a supply. Rowling’s lawyers really should stop going after the easy target of eBay and start trying to stop those who are actually responsible for pirating her work.
J K Rowling does not have an injunction against eBay
February 28, 2007
Two days ago news broke that J K Rowling (author of the Harry Potter series) had won an injunction against eBay India. Now it appears the initial reports were incorrect and eBay has released a statement.
Although it is uncertain that a legal ruling in India would have any validity in the US or Europe, it’s certainly good news for eBay. It appears Rowling’s lawyers may have been a little over enthusiastic in their comments to the press.
Harry Potter’s J K Rowling sues eBay
February 26, 2007
J K Rowling, author of the Harry Potter book series, is to sue eBay India over sellers hawking unauthorised copies of her books on eBay. Copies of her work has been sold as e-books on eBay India and action has been filled at the High Court in Delhi, India. Akash Chittranshi is representing J K Rowling and points out that under Indian laws eBay are equally as liable as the sellers. There is no comment however on any legal action being taken against individuals who have listed the e-books.
Rowling’s lawyers have already won a unique victory against eBay, an injunction has been placed which prohibits eBay from listing illegal copies of her work. eBay are now in the invidious position of having to comply with the injunction which will doubtless encourage other companies to expect the same. If they fail to prevent illegal copies of Rowling’s work appearing on eBay then they will be in breach of the injunction which is in place until the next court hearing on 23rd May, 2007.
eBay have long claimed to be “just a venue” unable to verify the authenticity of sellers products. The VeRO program allows IP Rights owners to flag counterfeit items and other unauthorised material which eBay removes when notified. The Rowling injunction orders eBay to bypass this process and actively police the site themselves. Additionally eBay are currently under pressure from sellers to examine the VeRO program, due to misuse by companies illegally trying to control the marketplace.
Once eBay start to successfully police the marketplace there will be numerous other companies demanding the same for their goods, the ruling could also have an impact on court cases with Louis Vuitton & Christian Dior in Europe and Tiffany in the US.
e-books have always had a poor reputation on eBay, and this will do nothing to assist the cause of the very few genuine e-book sellers with their own original material. I for one wouldn’t shed a tear if eBay took the decision to ban e-books entirely as other similar sites such as Tazbar have.
[See update to story with eBay press release]
T in the park boss naive
February 25, 2007
You are a seasoned event organiser. You have a limited number of tickets which you know will sell out in minutes. You open booking and sell some 40,000 tickets in well under an hour. You know that hundreds of people will miss out and be willing to pay whatever it takes to obtain entrance. So why are you surprised when tickets appear on eBay and buyers are willing to bid more than the face value?
That’s the situation the rather naive Geoff Ellis, chief executive of T in the Park promoters finds himself in. Well just what did he expect? It really shouldn’t come as a surprise. Ellis intends to instruct his lawyers to request eBay remove tickets that use the “T” logo, but accepts it’s likely tickets will be sold before eBay have time to respond. I for one am not going to suggest he reads up on VeRO and saves his legal fees :-p Regardless there are no grounds for removing auctions not displaying his logo.
Just why someone organising an incredibly popular and well attended festival don’t take similar steps to Glastonbury with photo tickets, to prevent resale of tickets is beyond me. Either they have no market awareness (in which case they deserve to be replaced), or they have no cause for complaint after the event when tickets are on the open market available to the highest bidder.
Wake up and smell the roses Mr. Ellis!
Vero to zero in one eBay step
February 22, 2007
Nici Smith has been trading on eBay for more than three years, running a successful shop selling gifts, gadgets and novelty items. Then, overnight, everything she had worked so hard to build was taken away from her - by an eBay program supposed to fight fraud and fakes.
On December 13th 2006 my eBay business gadgets-and-gifts-uk was shut down overnight by the VeRO department at eBay for a trademark infringement. The company who had challenged my business was based in America, and the infringement? Well, that would be an alleged breech of copyright over a light shaped like a part-melted ice cube.
After shaking, crying, ranting and raving, I eventually calmed down and took matters in hand. Thankfully I am a member of the Federation of Small Businesses so I was able to use their free legal advice line to assist.
The rights owner was, in all fairness, very helpful; he was horrified that his VeRO infringement notices had closed my business during the busiest trading week of the year . He had only wanted the offending listings to be removed. So he employed his UK lawyer to contact VeRO to try and sort the situation out. The lawyer wrote urgent e-mails to VeRO to no avail, and could not believe that a department of this nature had no publicly available contact numbers at all.
I was informed later that allegedly the rights owner had just lost an EU court battle to stop my supplier from selling the product I had bought. The UK patent office said that it would be impossible to claim a UK patent for a light up ice cube and virtually impossible to claim UK copyright for a partially melted ice cube as the design is too generic. This VeRO was nothing to do with trademark infringement; it was all about market share.
To cut a very long story short, the business sat out its suspension, and re-opened a week later. When my eBay account was reinstated, everything had gone. All my listings had simply vanished, my shop had been closed and everything had to be redone from scratch. A few days before Christmas, I wanted to be packing my last couple of parcels and putting my feet up, not trying to rescue my income from Hurricane VeRO.
This wasn’t my first run in with VeRO. I have had a few over the past 12 months. Unfortunately, the first you hear about the possibility that you are infringing a trademark, for an item you’ve bought from a UK supplier in good faith, is when it is removed from eBay. By this time, the black mark has already gone against your ID. I have never wilfully infringed any trademark, patent or copyright and have always complied and removed offending items. Not one VeRO has been for counterfeit or fake goods which is what the program was intended for. All have been for market manipulation. VeRO don’t get involved in the decision as to whether your item infringes a trademark; they simply remove the listing on the instruction of the person claiming to be the rights owner. And unfortunately I don’t have the finances to challenge eBay legally.
VeRO overturned in High Court
November 14, 2006
A man who stopped a business selling children’s quad bikes on eBay cannot continue to do so, the High Court has ruled. Dr. Colin Campbell claimed that children’s bikes sold on eBay violated his design rights, and had sales ended under eBay’s VeRO programme. But seller Quads4Kids counterclaimed against Dr. Campbell under the Community Design Regulations 2005, which stop those claiming to be rights holders from making threats that they cannot back up with legal action.
The Judge wrote “I consider that unsupported and unchallengeable allegations of infringement of registered rights of this description are potentially an exceedingly damaging abuse of registered rights”. He also gave judgement quickly so that the bikes could be back on sale on eBay in the run up to Christmas. Lets hope that a few of those who use VeRO to assert rights they do not have are put off by this judgement.
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