Hall Of Shame Member
Added May 30, 2008
Last updated : January 28, 2010
Good Gracious! What is Tommy Hilfiger doing on these pages? Isn't he just a clothing designer?
Tommy Hilfiger joins the latest craze that is sweeping across the fruited plains: a trademark owner with his head up his ass. Seems not only does Tommy Hilfiger use the Cyber Cop Strategic Intellectual Property Information,, also known as SIPI, the Cyber Cop based in India with an infected web site, but even their "advocate" (that's European for bottom-feeding corporate lawyer) has his head up his European ass.
The issue here (besides using a low-life Cyber Cop) is that of "exhaustion" as the Europeans call our First Sale Doctrine . The Europeans use an absolute definition of the "exhaustion rule" applying it to a community like the European Economic Area ("EEA"), as opposed to a general rule as we do in America. What this means is that the owner of intellectual property rights ("IPR") can block the importation of goods bearing their marks into the EEA. What they are doing in reality is improperly interfering with perfectly lawful eBay auctions that are offering these goods for sale worldwide. There is a difference between blocking importation of a product, stopping it from entering the country, and an offer by an eBay seller to sell worldwide. Until the item hits the UK border the UK law has no jurisdiction.
One of eBay's selling options is the all-inclusive "worldwide" category, which as any 5th-grade student can tell these lawyers, includes but is not limited to the countries that comprise the EEU. So, "worldwide" means the US, Canada, Mexico, Central America, South America, Asia, Africa, etc, not just the EEU (who arrogantly believe the world is just them). Someone who lists their items for sale, by designating "worldwide" on the eBay website, is also selling these goods in the US, the single largest commodity market in the world (and larger than the EEA). So, the likelihood of the sale going to someone in the US, or a nearby country, is much greater than to the EEU because of sheer numbers as well as shipping costs.
The "advocate" for Tommy Hilfiger, Tobias Cohen Jehoram of De Brauw Blackstone Westbroek of The Hauge Amsterdam, stated, "the first sale doctrine does also apply in the EEA", which is true, but only to goods offered first in the EEA. However, Tobias Cohen Jehoram, European law does not apply to US citizens selling something on-line that does not specifically target European buyers. The IPRs should take their problems to eBay, not harm the sellers.
Tommy Hilfiger has a multi-million dollar business selling over-priced yuppie clothing. Most of the harmed eBay sellers are small business selling a few items and/or are much smaller home-based businesses. So why is one or two genuine Tommy Hilfiger sweaters (just a guess) an issue? They were bought from Tommy Hilfiger (who is not contesting that they are authentic). Tommy Hilfiger has his money. The cost of shipping this to the UK, or any other EEA country, adds at least $10.00 to the cost, IF the purchaser is in the EEU.
Tommy Hilfiger has his goodies manufactured in the same sweat shops regardless if the item is sold in the US or in the EEA. His cost is the same pretty much regardless of selling location. So, what runs up the cost to the buyer? Socialism in the EEA? The VAT and other expenses incurred by socialistic countries runs the cost up for the consumer but not for the manufacturer like Tommy Hilfiger. So, all things being equal, since Tommy Hilfiger has his money, why do this? Why not go after those who are really trying to circumvent import laws? Could it be bottom-feeding corporate lawyers at work? They get paid no matter who gets hurt. The European corporate lawyers are as money-grubing and lacking in ethics as American corporate lawyers.
Our contention is that offering to sell worldwide on eBay is not the same as targeting the EEA. Nor is it the same as shipping it to the EEU. Offering an item for sale is not the same as it being "imported" into the EEA. Tommy-Boy might be able to block the importation into the EEA but not the sale in the US. His concern is after the sale. But is it really a concern? We think not. It's another payday for some fat European bottom-feeding corporate lawyers.
In the US, trademarks owners can only block the importation of their goods if there are material differences in the goods. NEC lost a case because the computer chips they were trying to block were identical, or almost identical, to those being sold in the US. So, lets see what is different here. A Tommy Hilfiger sold in the US and in the EEA are made in the same sweat shops, by the same under-paid workers, using the same raw fabrics and the same sewing machines, using the same "made in sweatshop" tags. So, what is different? The tag showing the size since the US has a different system is one difference. But we don't believe European butts are different materially from US butts, nor are European bosoms materially different from US bosoms, so what's left? Nothing! Except the beady little minds at Tommy Hilfiger that think what they are doing is significant when all they are really doing is hurting small businesses and small eBay sellers. Tommy Hilfiger already has his money. What more does he want? Blood?
Why do they do it? Because they can. They know few, if any, will actually complain and no one will fight back. That's what makes a bully a bully. Confidence in the weakness of their opponent. What Tommy Hilfiger doesn't care about is that eBay sellers are being harmed by these bully tactics because eBay keeps score of takedowns and suspends repeat offenders. Regardless of the "reason" for the takedown, it still counts. So, Tommy Hilfiger lounges about in his expensive digs gleefully unaware and/or unconcerned of the damage he is doing to small businesses. Tommy Hilfiger was once a small business but he's outgrown that. He's big business now and he doesn't care who gets in his way.
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