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From: "Shelley" To: karen@tabberone.com Date: Sat, August 21, 2004 1:43 pm Subject: Listings ended on ebay, please be advised Karen, here is the draft. Tell me what you think. inquiries@frosszelnick.com; safeharbor@ebay.com From: Michele Regarding auction #s:
To: Fross Zelnick To whom it may concern: Please be aware I have emailed you previously asking for an explanation as to why the following auctions were ended by your organization. As you have provided no reason why my auctions were ended, nor replied to emails, I would ask that you give this matter your full attention at this time. My position is that these auctions must have been mistakenly, erroneously, and upon penalty of perjury on Fross Zelnick, illegally ended through the VERO program. You represent Timberland - I sell Timgirls. The name Timberland was never used on my auctions. No property of Timberland was ever used. No photos, the name was not used, no reference was used at ANY time that would have referred to Timberlands. My boots, Timgirls, are substanstially different than the products being offered by Timberland. Further, you have no legal basis on which to claim any infringement. TIMGIRL is a lawfully registered trademark with the United States Patent and Trademark Office . See attached documentation below. If you have an issue with trademark infringement, I cordially suggest you challenge Timgirl's registration in federal court. I have every right to use the name Timgirl in my auction. Further, I would like to point out that bids on any auction constitute a legal contract. Since I had bids on some of the items removed, you are interefering with not only my commerce, but also with legally binding contracts. Further, I believe that Fross Zelnick and/or it's representative has committed perjury. Based upon information and belief, on or about August 21, 2003, Fross Zelnick requested eBay terminate my auction listings, falsely alleging to eBay in an affidavit that the article offered in this auction was an infringing item. The false affidavit filed by the defendant constitutes perjury under 17 U.S.C Section 512. I respectfully ask that Fross Zelnick cease and desist it's unlawful use of the VERO program, and that ebay reinstate my auctions without prejudice. Be advised I am filing counter-notices to ebay upon this date. I might add that the VERO program is for legitimate trademark holders protection of their intellectual property. Fross Zelnick does not hold the trademark in question, nor does your client, Timberland. Neither Fross Zelnick nor Timberland maintain an "About Me" page that would seek to help sellers comply with their position. If there was a legitimate issue, I would be perfectly willing to edit my auctions so that they are in legal compliance. However there is absolutely no information whatsoever as to how these auctions are not compliant. Fross Zelnick and Timberland are not, apparently, using the VERO program in any way but as a blunt club with which to shut down very small sellers. I would further ask you to review a published interview with the CEO of Timberland, Jeffrey Swartz. I do not believe you are representing your client faithfully. I do not believe this person would knowingly allow you to FALSELY and ILLEGALLY interfere with my commerce, none of which interferes in the least with his. The only similarity between the products I am selling and Timberland is the first three letters and that fact you wear them on your feet. Thank you very much in advance for your reply. Michele
From: Inc. Magazine, May 2000 | By: Jeffrey Swartz I think we have been extraordinarily naive as brand builders, in terms of thinking, "It's all about me." Talking about yourself ad nauseam doesn't work at a bar, and over time, it isn't working with brands -- not with employees, customers, shareholders, or communities. People are saying that it's time to go from a depersonalized brand to a personalized one, and they talk about it in terms of customization, like Burger King's "have it your way" idea, where if you don't want pickles, you don't have to have pickles. That's hard to execute, and if you can do it well, fine. But the implications of business's becoming more personalized are, I think, more profound than they seem right now. The notion that building a brand might no longer work is the biggest threat to guys like me who grew up in a world full of rich brand models -- a world where it was thought that if you developed your products and your distribution channels and marketed the products emotionally, then you should be able to sell almost anything. Don't get me wrong -- it's a tried-and-true model, but it's flawed, just like standing in a bar with a girl and talking only about yourself. Take the idea of the warranty card, for instance. Who fills it out? It just sits there asking "What about me?" after you've already bought the product. That's like asking the girl in the bar, "And what about you, what do you do?" only after you've rambled on for hours about yourself. The scale needs to be a lot more personal. I read something about Honda saying that it now sells cars that are highly customized to the way you want them configured. That's a huge step. So now, theoretically, I have a Honda and you have a different Honda of the same model. Yours reflects your driving habits, and mine reflects mine. Either way, the ubiquity of branding gets knocked down. The brand now means different things to different people. It's a weird notion when you think about it. With shoes -- how can my Nikes differ from your Nikes? The companies that are best prepared for this change are those whose brands don't represent a particular product but whose brands are more like an ecosystem. I think Richard Branson's Virgin is just the best at this. When you get right down to it, what does the Virgin brand stand for? It's an ecosystem; it doesn't stand for travel, stores, or soda. You're somehow just there, and you say, "I know Virgin; sure, I'll buy clothes from you." So what does Timberland do? In terms of personalization to consumers, I don't know. It's such a threatening thing. Up until recently it's been all about the Timberland brand, and I'm used to that -- and now I'm learning it's beginning not to matter. Wow. It's very challenging stuff. For now we've created something informal called the Brain CafÉ. The model I think might work for it is the one I find in community service. Here's an example: The other day, in San Antonio, I met Archbishop Flores, who does a lot of work in the community. We were both supposed to speak to kids about volunteer work. He's 60 or so, he knows Spanish, he talked to them, and he connected to them much better than I did. What I saw was a spectacular model of inventing oneself to connect with others. He was talking to a black teenager, someone who was working on his GED, and totally related to him -- it was as though he scaled his own personal model to connect with the kid. If you go into other communities, you see the same type of thing: nuns who are not dressed like nuns, wearing just jeans and T-shirts, completely relating to relatively troubled teenage kids. And I'm looking at this individual service model, trying to see what I can learn from it, and it's difficult. How can we take this community model and transfer it into selling products? I don't know, but I'm thinking it's an example of what a corporation could become. --From an interview with Ilan Mochari
Supporting documentation regarding TIMGIRL being a lawfully registered trademark: Trademark Electronic Search System(Tess) TESS was last updated on Sat Aug 21 04:45:59 EDT 2004
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Word Mark TIMGIRL Original email: Dear Michele, **PLEASE READ THIS IMPORTANT EMAIL REGARDING YOUR LISTING(S)** We would like to let you know that we removed your listing:
5317857196 TIMGIRL Sex and the City Boot Eskimo Ski Boots 6 Pink because the intellectual property rights owner notified us, under penalty of perjury, that your listing or the item itself infringes their copyright, trademark, or other rights. We have credited any associated fees to your account. We have also notified the bidders that the listing(s) was removed, and that they are not obligated to complete the transaction. If you relist this or any other similar items on eBay, your account likely will be suspended. If you believe your listing was ended in error, or have questions regarding the removal of this listing, please contact the intellectual property rights owner directly at: The Timberland Company inquiries@frosszelnick.com eBay is available to answer questions, but since it is the rights owner that requested the removal of your listing(s), we encourage you to contact them first. For more information on eBay's cooperation with rights owners through the VeRO Program, and a list of rights owners that have created About Me pages, please visit:
http://pages.ebay.com/help/confidence/vero-removed-listing.html Thank you for your cooperation. Regards,
Customer Support (Trust and Safety Department) |