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Lynn2004

Guest
What is the name of your state? Maryland

I sell animal products on ebay and ran across a problem with XXXXX Company last year. I was selling some designer like Dog Carriers purchased from a High Quality Pet Products Company. I made the mistake of using "XXXXX Style" in my title, but in no way did I ever sell a carrier with a customer thinking it was "authentic XXXXX" - so in any case, XXXXX Company had my listings shut down. I called and talked with their attorney, in which he told me that I was not allowed to use the following 3 descriptions "XXXXX" "XXXXX" or "XXXXX" (as they had a trademark on those words - so after talking with VERO I was told I could relist them changing the description to "an agreed title, not infringing" which is what I did.

Yesterday, XXXXX had all my listings taken down again. So I emailed their attorney and reminded him of our conversation last year. He emailed me back stating that he apologized for not being more clear and that the products I was selling is not allowed to be sold as they infringed upon XXXXX Trademark. So, I emailed him back, explaining where I purchased the products from and asked what am I to do with my inventory if I am no longer allowed to sell them on ebay, online or anywhere (which is what he said in the 1st email). Then he BLASTED me a very threatening email stating that he would not and could not give me authority to sell them (which is not what I asked of him) and then stated I had until Friday, August 13 to fill out the attached COMPLIANCE DOCUMENT which asks how many of each product I have in my possession, where I purchased them from, all invoices and packing slips and that I agree to pack and ship at my expense all inventory to XXXXX for destruction. Then XXXXX MAY CONSIDER providing me with a written release - otherwise I will be liable for previous sales. This email further stated: In addition, without your full and complete cooperation, I will write eBay with a demand that they revoke your eBay account, based on the numerous auctions I have had to report. Given the intense pressure eBay has been receiving as a result of the huge quantities of infringing merchandise being sold on eBay, I’m confident they will take my letter quite seriously. Please forward me the completed compliance agreement by the close of business Friday, August 13, 2004.

Friday I emailed him the following:
"Please allow me start off by stating for the record that it was never my intention to infringe on anyone's copyright or trademark. After our last phone conversation, had I thought I was not allowed to sell the products you had removed from ebay, I would have never listed them again.

However, since you have given me a deadline of close of business today, August 13, 2004, I would like to inform you that I am no longer selling the items and agree to cease and desist. This information has also been passed along to ebay's VERO Director, via email and telephone. I have no interest in breaking any laws with regard to XXXXX Company.

Most importantly, I am uncomfortable signing a legal document without first consulting my attorney, who is currently away. Additionally, I would be more comfortable after being approached with a request to ship my items to you, that I have my attorney represent my interest. If my cease and desist is agreeable with you, please let me know, otherwise I will await your reply, hopefully before 5:00 p.m. EST today."

He responded with the following:
"We prefer a signed compliance agreement, accompanied by the remaining inventory. We will wait one week – during which time I trust you’ll be able to consult with your attorney."

Is it legal for an attorney to ask me to sign a legal document without first telling me to consult an attorney before signing? I don't have invoices, as these were purchased early last year - is this a problem? Do I have to send my remaining inventory (which is not a lot), but I would prefer to keep for personal use since I did pay for them? By signing this form - is it going to cause me further problems? I just want to move on with my life and had no clue I was doing anything wrong.


Any feedback on my situation would be greatly appreciated and I thank you for letting me vent. I have been a Power Seller on ebay for several years with 100% Positive Feedback and now feel in jeopardy of loosing my right to sell and loss of invested money in items they are requesting me to ship to them.

Thank you very much for your time.
 


J

J. Michael

Guest
Read: http://www.tabberone.com/Trademarks/trademarks.html

And more specifically: http://www.tabberone.com/Trademarks/folder/NewKids.html which says in part:

The 'fair- use' defense, in essence, forbids a trademark registrant to appropriate a descriptive term for his exclusive use and so prevent others from accurately describing a characteristic of their goods." Soweco, Inc. v. Shell Oil Co., 617 F.2d 1178, 1185 (5th Cir.1980). Once again, the courts will hold as a matter of law that the original producer does not sponsor or endorse another product that uses his mark in a descriptive manner. See, e.g., Schmid Laboratories v. Youngs Drug Products Corp., 482 F.Supp. 14 (D.N.J.1979)

Similarly, competitors may use a rival's trademark in advertising and other channels of communication if the use is not false or misleading. See, e.g., Smith v. Chanel, Inc., 402 F.2d 562 (9th Cir.1968) (maker of imitation perfume may use original's trademark in promoting product). [5]


"Is it legal for an attorney to ask me to sign a legal document without first telling me to consult an attorney before signing?"
No private party can make you sign anything. Of course they could ask for an injunction and/or sue you. If you fight it, get a lawyer who is not simply a puppet for the big media conglomerates. (Many veteran IP lawyers may have significant biases.)
 
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Lynn2004

Guest
Thank you for your reply! I'm been waiting all week for someone to post their opinion. I appreciate your thoughts.
 

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