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not tay ber own

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  "The only thing necessary for the triumph of evil is for good men to do nothing"
Edmund Burke

What To Do If You Are VeROed

Many sellers don't understand what to do when their listing(s) is shut down by eBay. In many cases, they mistakenly think eBay terminated their listing, mainly because they fail to stop and read and comprehend what they have been told.

If your listing was terminated, there were two likely causes:

  1. Someone told eBay they own the rights to what you were selling and sent eBay an affidavit stating such, and eBay terminated the auction(s) to comply with the DMCA or to comply with eBay's ever changing rules, or
  2. eBay took action because a snitch (read competitor) reported you for violating eBay rules.

What do you do?

  • Do Not Relist The Item(s).
    You do not assume you can relist the item(s) by simply changing your listing to remove, or modify, what you think is the offending wording or other content. You are dealing with eBay! Do not assume. eBay doesn't care that you are trying not to offend or infringe. eBay will suspend you in a heartbeat for repeated violations even if the "violations" are unsubstantiated. Relisting the item without finding out what triggered the takedown is a sure way to get suspended!

  • Determine Who Terminated Your Auction(s).
    You will receive an email from eBay telling you why your auction was terminated. If you were shut down by the VeRO member, the email will tell you that and to whom you should direct inquiries. If your auction was terminated by eBay, using their snitch program, what we call the SNOG Program, eBay will send you an email dancing around the final responsibility for the action, effectively placing all of the blame on you for violating their policies and for being too stupid to realize what you did wrong.

  • Email eBay only if eBay terminated you auction.
    It is really a major waste of time. First you will receive automated responses that treat you as thought you were an idiot. You might get a response from a real live eBay staffer but don't expect them to listen to reason. You might find beating your head against a brick wall more satisfying and constructive.

  • Email The VeRO Member Immediately.
    If you were shut down by a VeRO member, do not bother to contact eBay. It is a waste of time. Contact the VeRO member immediately and politely demand a detailed reason for the termination of your auction. Email the VeRO member, do not call them. You want to create a paper trail. Do not at any stage admit in writing or verbally that you have done anything wrong or could have done something wrong. Get the facts first.

  • Keep Email Short And To The Point.
    Do not emote and do not ramble on. The recipient of the email believes you were infringing and a lengthy and self-righteous email about you and your auction will not change their mind. It will likely bore them to tears. We suggest a short email like this:

    Why did you order eBay to terminate my auction #1234567890 (include auction title here)?

    That's it. Let hem tell you why they terminated the auction.

  • One of two things will happen here
    1. The VeRO member will not answer you
      If the VeRO member ignores you, then you appeal to eBay, and then don't hold your breath. eBay will do nothing despite their weak assertions that they will intervene. ebay will insist that eBay does not have the expertise to make a determination of whether or not you were infringing; only the VeRO member can determine that.

      eBay won't really do much more than a song and dance about how the "rights holder" is the responsible party and you really should do more to establish a meaningful dialog with them. In basic English, eBay is telling you to kiss off.

    2. The VeRO member will answer you
      If The VeRO member replies, you have to carefully read their reply. In most cases, they will take the offensive posture that you are infringing and they have the right to take the action that they did. Here, there are two possibilities: either you were infringing or you were not.

      • You were infringing.
        You don't think so or you wouldn't be reading this. However, and there's always a however in life, you might be infringing regardless of how strongly you feel you were not. Forget how many others are selling the same item. Forget that you bought the item from someone else. Forget the urban myths you have heard about copying and making changes. Look at hard reality. You cannot copy a picture and reproduce it and then sell it. You cannot take an image, make changes to it, and then sell it. If the image is easily recognizable, even after the changes, it is still infringing. The courts use a reasonable person rule:

        If a reasonable person would recognize the image as being (example) Mickey Mouse, then it is infringing, no matter how much it had been altered!

        You cannot use a picture of (example) Mickey Mouse to sell a Winnie The Pooh item. You cannot buy a NASCAR calendar and copy the different pictures to sell. You cannot sell a replica or knockoff, even though you tell the potential buyer it is a fake. Just because you bought something from a wholesaler outlet doesn't mean it isn't infringing.

      • You were not infringing.
        According to Federal Law, you may:
        • Use pictures of the actual item you are selling.
        • Use descriptions of the actual item your are selling, even if you take these descriptions word-for-word from the packaging of the item.
        • Re-sell items you have bought as long as you have not significantly altered the items.
        • Use names and phrases directly connected with these items and under which they are marketed.
        • Sell any item which you have lawfully obtained, provided it does not itself infringe
        • Use the name of the company or the item you are selling

Some companies do not want their products sold on eBay. They cannot lawfully stop you but they can interfere with the sales. If you have determined that you were not infringing, do a little research and then respond to the email from the VeRO member.

You can cite the First Sale Doctrine and whatever other statutes are relevant. Do not expect them to change their minds simply because you insist you were not infringing. If you are persistent, and they are not resolute, they may back down or offer a way out. Be careful of any compromise.

We have been VeRO'ed 18 times and been in federal court for 15 of those takedowns, representing ourselves, and winning most of the cases. It's amazing how many companies prefer to reinstate the auction, and pay our expenses, than go into federal court and defend their actions.

What would Tabberone do?
If they don't retract the takedown, sue.

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