Is ebay a Seller or not a Seller, That is the Question

There isn’t much that Amazon does well but - from my perspective - they have done a great job of taking down unauthorized copycats of my products when I’ve alerted them to infringers on my patents; Walmart.com has also done this well. Now ebay, on the other hand, just shrugged their shoulders and said, “We’re not the sellers; you’ll have contact them directly.”

It would appear, though, that the Feds disagree with this assessment. They have already gotten ebay to cough up $59 million and agree “to enhance its compliance program to resolve allegations that it violated the Controlled Substances Act (CSA) in connection with thousands of pill presses and encapsulating machines that were sold through its website” (eBay to Pay $59 Million to Settle DOJ Allegations over the Controlled Substances Act - EcommerceBytes).

Now, the EPA is after ebay for “the alleged sale of unlawful pesticides and high-emission car parts” (eBay Tells Judge It Doesn't Sell the Items on Its Site). From the article:

" In the EPA lawsuit, the [Feds] argued that eBay is the seller… [and not] the innocent bystander it purports to be. The Complaint’s allegations, taken as true, demonstrate that eBay participates in and controls every transaction on ebay.com."

Assuming that ebay loses or settles (and the precedence of the first case would argue in favor of such an outcome), the trend would be moving in the direction of ebay being considered the seller of all things on its site. At this point - or subsequent to a specific case on this matter - it would seem that ebay will be responsible for the enforcement of IP protections on their site at sometime in the future. Looking at the 20 or so knockoffs of my products on their site, I am certainly hoping that this would happen soon (though not holding my breath).

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Doesn’t ebay have the Vero program?

Ebay is feeling many of the same regulatory pressures as Amazon, though being smaller they feel them later.

They are responding with settlements and bots.

If you do not have the money to fund legal actions, you will not see your IP protected beyond the VeRo program.

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The moment that eBay started it’s own payment processing and collecting sales tax for every state it crossed the line from not being the seller to being the seller.

eBay being the seller or not, eBay is responsible for the content of it’s site, IP enforcement and compliance issues start with the owner of the site, eBay is then responsible for taking action (just like Amazon) to limit their liability.

The ebay game of “it isn’t us” I predict will not fly here.

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ebay’s vero system is basically the same as Amazon’s brand registry system for trademarks.

Amazon has the APEX program for patents, whereas ebay doesn’t so you’d need to get a court order to show that a patent is enforceable. Unlike a registered trademark, patents being enforceable isn’t cut and dry.

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Nice, I had not heard of that. I’m (not really) surprised that ebay didn’t point me toward this when I contacted them a few years ago.

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Also, if there’s a buyer-seller messaging system similar to Amazon’s, you can send out a template C&D to all the sellers who are infringing. (Do it on a separate brand enforcement account). That makes a lot of problems go away, and then you can look into further action against the ones that don’t.

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You don’t indicate if you have reported the listings to eBay. While my case is not 100% the same, I had a number of (you guessed it) Chinese sellers for one product line.

It is only made in the USA and all the Chinese sellers were claiming made in China but 100% genuine.
I reported every single one as counterfeit or knockoff products and referred eBay to my contact at the company. She is the account manager and every one of the knockoffs has been removed at this time.

It took a couple weeks to a month or so but eBay did take action.

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eBay’s VERO program is MUCH better than Amazon’s “enforcement”, as one fills out a simple form, and if you give them the item number of the infringer, the copyright or trademark registration number, and a link to the original (as it is product photos that are stolen by eBayers most often), they take down the listing, and tell you that they did so with a day or so.

So, if they use your trademark, photos, or text, down goes the listing, and it does not reappear.

This points to the utility of spending the pittance of $35 to register a copyright on one’s product label, as this allows one to firmly shut down the “arbitrage” types who want to sell on eBay while ordering the product from Amazon on their customer’s behalf. It also shuts down liquidators, “used as new” sellers, you name it. A trademark is not infringed when one uses the mark in a “nominative” manner, and sells the legit product, but the copyrighted label trick gets around that little detail.

Hehehe…

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You don’t need to register a copyright to claim it or file a copyright claim. The downside of a copyright claim is those are by far the easiest to get reversed. They follow the DMCA counter-notice procedure where all they to do is file a counter-notice (Amazon now has a form where you just check the boxes) and it’s guaranteed (the platform is legally obligated) to bring the page back up, unless the complainant files a lawsuit within the 10 day window (in which case the platform will keep it down until the lawsuit is resolved).

I’ve received several copyright claims in the past, and filed counter-notices on all of them immediately and that was the end of it. I was in the right legally though so there was no real risk of them following up with a suit. A seller outside of the US (and those are usually the cause of most of these issues) will likely not have any problem with filing a counter-notice even if they’re in the wrong since they have little to lose by being sued. This makes a trademark infringement claim stronger than a copyright claim in those cases unless you’re willing to file a lawsuit over it.

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Agree, we found this. If you file, and they counter, be ready to travel, including cross country, to defend your Intellectual Property.

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In general, intellectual property is only worth something if someone’s willing to spend to defend it.

There’s countless trademarks big companies objected to and people just changed them because a new brand doesn’t have money to start off by going to court to fight over what they want their trademark to be. The big brands see that as a worthwhile expense to prevent any remotely similar trademarks from coming into play.

Protecting a brand involves spending time and money to find infringers, and then spending time and money to take action against them.

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Agree, we did this once. A vendor of ours did not like our new trademark, it was to close to one that they had. I did not agree, so they transferred the issue to a regional law firm.

After 25K$ it was clear that they would outspend us. Fine. We changed the brand. We were lucky enough to be in Brand Registry 1.0, on the cusp of BR 2.0 we were able to change the brand on Amazon.

We retained the trade dress, with permission from the law firm and it was over.

Sort of… The “Manager” at the vendor of ours, and the CEO at the vendor, were fired. I do not expect due to us, however, they lost the largest stocking distributor in North America. We were doing over $500K a year, and never sent a single item back. We dropped to less than $50K in one year, and are now at less than $10K a year. They closed operations in the United States.

No emotion in business.

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Something a lot of people overlook is that if you don’t enforce your IP against the little guys, then eventually you will lose the ability to enforce it against the big guys. That’s why “But I’m just a small seller” doesn’t get you off the hook. And why even a small mom-&-pop store can’t mention the official name of the football game last weekend for promotional purposes.

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This is true, if you allow people to use it freely you eventually lose your rights to it.

Which makes sense. It’s unfair to the defendant of a TM lawsuit if they thought they could legally use it because a bunch of other people have been doing so for a long period of time.

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You have to be careful when sending out C&D notices as this article explains. Per the article, I sent out inquiries instead of C&D notices to every copycat I found which alerts them to their transgression without risking the establishment of the court of record being favorable to them.

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Does Vero cover patents, as well?

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This is only relevant if you actually want to pursue court action, which in most cases you don’t if the issue can be resolved through an infringement report. It does seem like the C&Ds should be carefully crafted and not just blindly sent though.

I don’t think the vero system covers patents. Amazon’s APEX system is fairly unique I believe since that involves outside counsel.

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Bummer about Vero. :frowning:

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Have you actually gone through the APEX arbitration process? Or do your opponents just fold when they get notice that they have to pay a $4000 fee if they lose?

If you gone through it and won that decision might be useful.

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