Unlike a traditional auction house, eBay is not actively involved in the listing, bidding, sale and delivery of any item offered for sale on its website. Intellectual property rights owners can join the VeRO program and submit a Notice of Claimed Infringement (NOCI). In this case, eBay repeatedly characterizes its website as merely an online venue that publishes "electronic classified ads." New processes, equipment, manufacturers, and compositions of matter can all be included in this category, as can modifications to existing ones. 512(n). The moving party has no burden to negate or disprove matters on which the opponent will have the burden of proof at trial. Therefore, the Court does not consider those notices when evaluating the actual or constructive knowledge prong of the safe harbor test. To support Singapore’s vision to become a Global Intellectual Property (IP) hub in Asia, the Intellectual Property Office of Singapore (IPOS) recently announced its investment of 65 million Singapore dollars to ramp up IP manpower and capabilities in Singapore in 2013. at 3; see also Complaint in Case No.
Summary judgment is proper if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law."
This could be protected images, text and videos on the site. The Court denied the eBay Defendants' motion for summary judgment on the copyright claims without prejudice to its refiling. 3, the Court rejects Plaintiff's contention. Indeed, eBay's website is known first and foremost as an Internet auction website. Thus, if eBay establishes that it meets the remaining prongs of the safe harbor test, eBay would be entitled to judgment in its favor on the copyright claims. at 11 (emphasis added).) At the time, eBay had no evidence that seller vidjointnyc@hot-mail.com was engaging in infringing activity; eBay simply removed the listing out of an abundance of caution. ( See Opp. When your listing is removed for infringing on the copyright of a VeRO participant, theres no reason to panic. See 17 U.S.C. ( See id.) at 325, 106 S.Ct.
To become a successful eBay seller, you must know the products that youre selling, especially when it comes to intellectual property law. See July 3, 2001 Order at 17.
This case involves a matter of first impression in the federal courts: whether one of the "safe harbor" provisions of the Digital Millennium Copyright Act ("DMCA") affords protection to the operator of the popular Internet auction web service, www.ebay.com, when a copyright owner seeks to hold the operator secondarily liable for copyright infringement by its sellers. Plaintiffs only "evidence" concerning this listing is a single page printout from some unidentified Internet message board that contains a post submitted by an unknown user. There are a number of ways that an owners intellectual property rights may be infringed. . Moreover, it contains none of the other requisite elements of a proper notification under Section 512(c)(3)(A), e.g., a statement attesting to the good faith and accuracy of the allegations. See 17 U.S.C. 56(e) (nonmoving party "may not rest upon the mere allegations or denials of the adverse party's pleadings, but . Owners of intellectual property may take issue with listings that make incorrect, inaccurate, or misleading statements about their brands or products. D.). eBay has no involvement in the final exchange and generally has no knowledge whether a sale is actually completed ( i.e., whether payment exchanges hands and the goods are delivered). The Ninth Circuit declined to reach the question of whether the safe harbor provisions of the DMCA applied, concluding that "this issue will be more fully developed at trial."
On December 28, 2000, Defendant Richter, eBay's Intellectual Property Counsel, followed up with another e-mail: Each listing on eBay's website has its own item number. This is akin to what users of CBS radios do when they give themselves a handle that identifies themselves over the radio waves. Unless eBay gets a notice from law authorities, the site cannot take action on stolen goods. ( See Hendrickson Decl., 10 Ex. Under the third prong of the test, the service provider's duty to act is triggered only upon receipt of proper notice. Political Contributions & Disclosures, Three Races Virtually Tied in IA House; Special Election Confusion in MN-1, Primary Results in Maryland; Top Five Primary System Qualifies for NV Vote, Check Out the Debut Episode of Our New Issues in Focus Video Series. Public disclosure of inventions in exchange for exclusive rights is a key component of the patent system. If you dont want to register your trademark or service mark with the USPTO, you dont have to. According to eBay, the types of work that are eligible for copyright protection include books, paintings, photos, music, videos and software. (Hendrickson Decl., 11.) 2001) extended Fonovisa to the Internet context. Plaintiff raises two more arguments in support of his claim that he need not provide eBay with specific item numbers to satisfy the "identification" requirement under the DMCA. That form identifies the address and fax number for the VeRO Program. ( See id. However, it is certainly possible that a seller advertises a "Manson" VHS tape as "new" because the tape remains sealed in its original package. Nowhere in the listing did the seller state he was offering a copy of a film entitled "Manson."
The Complaint in Case No.
1 alleges, among other things, that eBay is liable for the sale of unauthorized copies of the film "Manson" by users on eBay's website. (Hendrickson Decl., 11.) The Court reached this ruling in part because the undisputed facts showed that eBay had no knowledge of a potential trade dress violation before Plaintiff filed suit. After receiving Plaintiff's e-mail, eBay discovered that this seller had one active listing on eBay's website; that listing offered "Charles Manson Family Footage VHS New!!" Second, eBay's voluntary practice of engaging in limited monitoring of its website for "apparent" infringements under the VeRO program cannot, in and of itself, lead the Court to conclude that eBay has the right and ability to control infringing activity within the meaning of the DMCA. eBay removed the listing at the risk of exposing itself to a lawsuit from the seller even though up until that time Plaintiff had only complained about pirated DVDs, the seller was clearly offering a VHS tape for sale, and the listing made no reference to the title "Manson." July 3, 2001 Order at 15. It is common to use the term trademark to refer to both trademarks and service marks collectively. The DMCA "is designed to facilitate the robust development and worldwide expansion of electronic commerce, communications, research, development, and education." ( See id. As the copyright owner, it is up to you to decide whether or not to keep each of your products and distribute them separately or collectively. All rights reserved. So, what happens if youve found someone selling counterfeit copies of your product on eBay? Luckily, theres a way around it, but lets discuss the root of the matter first: eBays copyright violation policy. The moving party bears the burden of demonstrating the absence of a genuine issue of material fact for trial. Such a writing, without more, does not constitute adequate notice under Section 512(c)(3)(A). ( See id. cases. However, when eBay requested that Plaintiff identify the alleged problematic listings by the eBay item numbers, Plaintiff refused. VeRO stands for Verified Rights Owner. 1999). ( Compare id. . On or about December 20, 2000, eBay received a "cease and desist" letter from pro se Plaintiff Robert Hendrickson. See id.
( See id.) As long as the listing does not infringe on any intellectual property rights and was obtained legally, eBay will reject complaints that are filed on the grounds of the following: Ebay will not uphold any complaints filed by intellectual property owners that desire to exert control over where their products are resold. In Hendrickson v. eBay, Inc. the district court hypothesized that "if a movie studio advised eBay that all, Accordingly, the innocent infringer defense is inapplicable. In judging evidence at the summary judgment stage, courts must draw all reasonable inferences in favor of the party against whom summary judgment is sought. There, the court held that the complaint stated causes of action for vicarious and contributory copyright infringement against the operators of a traditional swap meet for sales of counterfeit recordings by independent vendors. A declaration stating that the copyright owner or his agents do not approve of the allegedly infringing items being sold. As the Court previously noted, "no law currently imposes an affirmative duty on companies such as eBay to engage in such monitoring." When their rights are violated, the owner or a representative can file a complaint by filling out the NOCI (Notice of Claimed Infringement) form, complete with proof of the violation, and sending it to eBay by email or fax. You will likely have your listing taken down again, and repeated removal can only lead your account to suspension. 512(c)(3)(A). 2"), Plaintiff sued eBay, David Durham (another third party seller) and Margaret C. Whitman ("Whitman"), eBay's President and CEO. However, the Court granted eBay and Richter's motion for summary adjudication of the application of the Lanham Act's "innocent infringer" provision. Plaintiff filed his opposition on August 6, 2001 and the eBay Defendants filed their reply on August 13, 2001. Plaintiff has offered no explanation to eBay or this Court as to how eBay could determine which "Manson" VHS tapes being offered for sale are unauthorized copies. Before filing suit, Plaintiff never provided eBay the specific item numbers that it sought. Ed Oswald is a freelance writer whose work appears on several technology sites as well as on Demand Studios. 512(c)(3)(A)(iii). ( See Richter Decl., Ex. A fact is material only if it is relevant to a claim or defense and its existence might affect the suit's outcome. An important consideration before listing an item on eBay is copyright. In this case, Plaintiff alleges that eBay and Whitman are liable for copyright infringement because they allowed Defendant Durham to sell unauthorized copies of the film "Manson" on or after January 17, 2001, the date Plaintiff filed Case No. With respect to the second listing, item number 525181519, the record is not clear as to why eBay removed the listing. The selling policy on eBay explicitly states that replica products are not permitted on the site. Further, the Court's recent "innocent infringer" ruling was premised on the Court's determination that eBay has no affirmative duty to monitor its own website for potential trade dress violation and Plaintiff had failed to put eBay on notice that particular advertisements violated his Lanham Act rights before filing suit. However, sellers can simply amend the listing and re-upload if only the description, photographs, and text are in violation of the rules. SaleHoo Dropship lets you add trending products from AliExpress to your Shopify store in minutes.
"[T]he burden on the moving party may be discharged by `showing' that is, pointing out to the district court that there is an absence of evidence to support the nonmoving party's case." Never represent yourself as an authorized dealer for a company if you do not have such a business relationship with that manufacturer. Plaintiff contends that it is not his job to do so once he has notified eBay of the existence of infringing activity by eBay sellers.
G.) The e-mail does not identify the listings that are claimed to be the subject of infringing activity; it does not even describe the infringing activity.
b. eBay then investigates the issue and notifies the seller via email that a VeRO participant requested that their listing be removed. EBay specifically prohibits the sale of replicas, fakes or counterfeit items, so make sure copyrighted work listed for sale on the site is genuine. Ensure that all information in your listing and photos represent the product in an accurate manner. Unauthorized copies of media, software and paintings this includes backup, pirated, duplicated and bootlegged copies. Rather, Plaintiff argues that he is entitled to an injunction that restrains eBay "from any further displaying and or transmitting of any false and or misleading advertisements in connection with the sale/distribution of `counterfeit' MANSON DVD's via its websites." Nevertheless, the Court notes that the record shows that at all relevant times, eBay advised Plaintiff that the notices of infringement should be submitted to the attention of eBay's "VeRO Program."
The program aims to give rights owners (and agents acting on their behalf) the ability to report listings that infringe on their intellectual property. at 24 n. To qualify for one of the safe harbor provisions, the service provider's activities at issue must involve functions described in one of four separate categories set forth in subsections (a) through (d) of Section 512. Central to eBays anti-counterfeiting efforts is our partnership with over 40,000 registered intellectual property rights owners, through our Verified Rights Owner7 (VeRO) Program. Because Plaintiff failed to raise this argument in his papers and failed to submit evidence in support of this argument, the Court declines to consider it. Three requirements for safe harbor are delineated in Section 512(c)(1). At any given time, there are over six million listings on the website. Plaintiff's pre-suit "cease and desist" letter and e-mails to eBay do not include several of the key elements for proper notice required by Section 513(c)(3). Here, because the focus of the copyright claims against eBay concerns infringing activity the sale and distribution of pirated copies of "Manson" using "materials" posted eBay's website, Section 512(c) would provide eBay a safe harbor from liability if eBay meets the conditions set forth therein. 1125. On February 12, 2001, Plaintiff filed the second lawsuit. The complete failure to include these key elements in his written communications to eBay, even after eBay specifically asked for these items, renders Plaintiff's notification of claimed infringement deficient under Section 512(c)(3). ( See Richter Decl., 13.)
Physical address, phone number, and email address are all required.