Michael Richter |
Senior, Intellectual Property Attorney
Attn: Legal Department
2145 Hamilton Ave
San Jose, CA 95125
April 11, 2003
Dear Mr Richter,
We were referred to you by Sean Chaffin concerning some auctions terminated by eBay. My eBay seller id is Tabberone.
Seems he claims that eBay's present policy is that an auction terminated for so-called "trademark" violations do not qualify for counter notices to be filed. He claims eBay's new policy is that only alleged "copyright" violations qualify for counter notices under the DMCA.
He also cited authority under the Lanham Act to terminate "offending" auctions.
There are no provisions in the Lanham Act for the type of actions taken by eBay. The Lanham Act is specific in that remedies are in Federal Court. It does not grant or require any third party actions or intervention. Therefore, technically, eBay cannot terminate those auctions as the mark holder must seek remedies in federal court, not through eBay. By terminating those auctions, eBay is in fact using the DMCA and must comply with the counter notice provisions contained in it.
eBay has very obviously patterned it's present "policy" after the provisions in the DMCA but is trying very hard not to get in the middle of a dispute. eBay has two counter notice forms. The one-page version very plainly references 17 U.S.C. section 512 and damages contained therein. The two-page version references a 14 day response period after which the filing party will be allowed to relist. The two-page version lumps "copyright, trademark, and/or patent" in the same category.
If eBay is going to have a "procedure" for terminating auctions that fall "outside" the DMCA, don't you think the procedure should include the same features? It is obvious Congress intended the subscriber some protections under federal law because those protections, few as they are, are specifically included in the DMCA. By omitting these "protections", eBay is leaving itself vulnerable. We are not asking eBay to "fight our battle" for us as Sean claimed. We are only asking eBay to comply with the word and the intent of the very federal statues eBay used to terminate the auctions.
We have filed a complaint in the Federal District Court for the District of Colorado against Major League Baseball Properties. It is case 03-WM-0571(PAC). We would like a copy of the affidavit filed by MLBP requesting the termination of the auctions. It can hardly be claimed to be proprietary since we have already been informed of its contents.
Karen Dudnikov aka tabberone