When it comes to online marketplaces, most buyers and sellers got their start on eBay. The company was founded in 1995, so it’s had plenty of time to improve its model over time. By the end of 2018, there were over 179 million buyers and sellers on eBay. This is a sharp increase over the beginning of 2013, when there were just over 128 million users on the site. With so many active users, it can be difficult to handle all instances of intellectual property violations. As eBay has grown, the company has become more focused on protecting the rights of intellectual property (IP) owners. The eBay VeRO infringement program is the culmination of these efforts.
What is the eBay VeRO Infringement Program?
The Verified Rights Owner (VeRO) program was created to give eBay members and intellectual property owners a way to protect their rights and report violations. The platform has separate processes depending on the rights that a person is claiming.
Intellectual Property Owners
Even if you’re not an eBay member, you can report violations of your intellectual property rights. The first method the site recommends is submitting a Notice of Claimed Infringement (NOCI). This is done through the VeRO tool, and if necessary, you’ll be asked to submit additional documentation.
You can also send in a Digital Millennium Copyright Act (DMCA) notification for instances of copyright infringement. This will need to include under-oath statements, description of the infringing works and other information. You’ll need to submit this to eBay’s registered agent through mail, fax or email.
If another user is using your trademark, images or text to sell their products, a typical first step is a cease and desist letter. In addition to a cease and desist letter, we notify eBay of the through the VeRO infringement program. Once received, eBay will review the information and take appropriate actions. If they find a violation has taken place, they’ll remove the offending listing and notify the seller of their actions.
What is the eBay VeRO List?
The eBay VeRO infringement program is more than just a tool to report suspected cases of intellectual property infringement. You can also opt to be put on the VeRO list to notify potential infringers of your rights and intention of protecting them. If violations occur after you’re on this list, it becomes more difficult for infringers to claim they were unaware of their actions.
By signing up to be placed on the list, you’ll be able to create a participant profile that provides information on all your products and the legal positions you take. This information can include the following:
- Contact information for those who have questions
- A full list of your copyrights, trademarks, and patents
- Conditions members must meet to use your intellectual property
- Potential consequences members could face for violations
- Additional frequently asked questions
Not only will this bolster your position if an infringement occurs, but it can also help you avoid instances of intellectual property violations altogether. Once potential infringers know that you take your rights seriously, they’re typically less inclined to engage in illegal actions.
What Can You Report?
The rules on what you can report are pretty straight forward. These include replica and counterfeit items, items that infringe on your trademark, copyright or patent, and unauthorized use of the photos or content in your own listings.
The VeRO program is focused solely on intellectual property rights. So you cannot report pricing or contract issues outside of intellectual property infringements. Only the intellectual property owner or its attorney can make a report.
The Potential for Legal Action
While the VeRO program is a great tool to get quick action on intellectual property right violations, it doesn’t always completely resolve an issue. Just because a listing is removed, for instance, doesn’t mean the infringer can’t relist it. eBay removes sellers who consistently violate these rules, but this is often remedied by using duplicate accounts.
Similarly, even if a member ceases infringing activities on eBay, it doesn’t necessarily mean they’re no longer engaged in infringement. They could also be infringing in other forums. This is why we always recommend that our clients have us send a cease and desist letter to the infringer.
Intellectual Property Infringement on eBay
The common types of IP violations that take place on eBay are trademark, copyright and patent violations.
Trademark Infringement on eBay
Trademark infringement is the most common intellectual property violation that takes place on eBay. Trademarks typically protect slogans, logos, names, short phrases and service names. If you’re selling a trademarked product, you’re fully within your rights to use the name on your listing. There are a few common errors, though, that you need to avoid.
- Using trademarks that are likely to be confused with others
- Implying a false relationship with a trademarked item
- Selling any counterfeit items
Implying a false relationship is one of the most common forms of trademark infringement that takes place on the eBay platform. Users will often sell a generic product but include a trademarked name in the listing. This would seem like a helpful practice in order to offer buyers a more affordable option when searching for a product. Even with this being the case, the action is technically infringement. By using a trademarked name for an unrelated brand, you’re implying a false relationship that may confuse consumers.
Copyright Infringement on eBay
Copyright registration is meant to protect original works of authorship. This includes books, videos, paintings, music, software and photos. Just like with trademarked items, you are likely within your rights to mention copyrighted material if you’re selling a legitimate copy of an item. The following actions, however, may be copyright infringement:
- Using images or photos that you do not own or did not license
- Selling unauthorized copies (e.g. unlicensed software)
- Offering replicas of copyrighted material
- Software or hardware with the purpose of illegal duplication
As a good rule of thumb, you should only use your own content when selling on eBay.
Cease and Desist Letters
Even if eBay removes a listing, it is still helpful to send a cease and desist letter. This will give the infringing party notice that you don’t plan on stopping at eBay. They need to know that, if infringing activity continues anywhere, there will be legal consequences.
In many instances, a cease and desist letter is all that’s needed to rectify a problem. In fact, fewer than three percent of legal disputes ever see the inside of a courtroom. There are instances, though, where it may be ideal to seek some form of compensation. If the infringer profited from illegal use of your intellectual property, you can request monetary compensation. If the infringer won’t agree to your terms, filing a lawsuit may be your best option. For further information on litigation, please see our trademark litigation, copyright litigation, or patent litigation pages.
VeRO Removal and Misuse
Unfortunately, not everyone uses VeRO for its intended purpose. Just like in the world of intellectual property outside of eBay, there are plenty of individuals who attempt to assert rights that aren’t theirs to assert. This is why your first reaction to a message from another member or even a VeRO takedown shouldn’t be to panic or give up. A VeRO removal isn’t necessarily the final say in the matter. If you have an eBay listing removed or get a message claiming infringement, you should have an attorney review the matter. This is because trademark bullies or others who don’t know the law may overstep their rights.
Additionally, intellectual property owners might attempt to have your listing removed if you are re-selling their material after properly purchasing it. Thanks to the first sale doctrine, you may be well within your rights to do so. Unfortunately, this won’t always prevent eBay from removing your listing by mistake. In these cases, you do have some recourse.
If Your eBay Listing Has Been Removed
There are serious consequences to having listings removed through the VeRO infringement platform. In some instances, you may be unable to get your fees back. If you experience more than one removal, eBay could also restrict ability to sell or even completely remove you from the platform. Because of this, you should contact an attorney right away. If your listing has been improperly removed, we will demand that the other party immediately retract their VeRO report.
Filing a Counter Notice
The eBay VeRO infringement platform works in much the same way as a DMCA takedown notice. This means that, if your listing is wrongfully removed due to a false claim of counterfeit, we can file a counter-notice with the platform to have it relisted. Before re-listing an item or filing a counter notice, you should be absolutely sure that you’re not committing intellectual property infringement.
After a counter-notice is filed, eBay will send a notice to the initial reporter letting them know that the item will be relisted after 10 days unless they take action. If they do not notify eBay of their intent to seek a court order against you during this time, your item will be relisted. Since this process could end up in court, though, it’s essential that you understand your rights before acting.
Mandour & Associates – eBay Infringement Attorneys
The advent of online marketplaces has made infringing intellectual property rights much easier. Although eBay has safeguards to protect against infringement, these tools aren’t always enough. Whether your intellectual property rights are being violated or you are being accused of IP theft, we can assist. Our practice is devoted to helping our clients protect and defend their intellectual property rights.
For a free consultation regard the eBay VeRO program or any eBay infringement issue, please contact us.