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November 18, 2008 - Content has not been altered. Links and advertising have been removed.

Friday, June 22, 2007

Trademarks on eBay: worse than the DMCA

Some manufacturers of physical goods are abusing eBay's "Verified Rights Owner" (VeRO) program to stifle not unlawful counterfeiting, as the policy is meant to address, but perfectly legal reselling of new or used goods. Infoworld tells the story of Nervous Tattoo, Inc., makers of "Don Ed Hardy" merchandise, who don't like seeing their stuff resold on eBay, so they send fake takedown letters to eBay to get auctions pulled that feature their merchandise.

The DMCA is (rightly) widely reviled for its suppression of scientific research and free speech. But as many of you who follow these issues know, the DMCA has its good side: the safe harbor that creates a standard protocol for copyright owners to protest infringing content, and for the posters to send counter-notifications when the takedown request is improper. While it's far from perfect, and though some content companies still sue when they don't like the way the notice-and-takedown system works, it's allowed online content hosting services from discussion forums to blogging sites to social networks to thrive with reduced fear of legal liability.

In the world of trademarks, there's no such protection, and eBay has implemented a policy that gives all the presumption of truth to the complaining trademark holder, without a way for sellers to respond. Ed Foster writes in the Infoworld article, "It's pretty scary to think there are actually circumstances where one would be better off if the DMCA applied, but that does seem to be the case here." Foster explains how eBay automatically pulls auctions that receive complaints without any independent investigation, and often terminates the seller's account. Worse, there is no way for the seller to appeal; eBay simply refers the seller to the trademark holder, who must withdraw their complaint before eBay will allow the auction to proceed.

And if the trademark holder refuses to respect the actual law about what is and is not trademark infringement? Then the eBay seller is out of luck.

posted by David Alpert at 10:28 AM

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