Falsely Accused of Trademark Infringement

[ebaysucks]

What is the name of your state (only U.S. law)? MA

I was fairly recently accused of violating someone's trademark. The accusation was not on any sort of company letterhead and certainly did not come from a lawyer. Instead it came through the Ebay messaging system(keeping with my running theme ebaysucks). The person seem to carry on in the 3rd person which is unusual for an individual. He threatened to turn me into vero(ebay's legal protection division to protect them not you). That was a big red flag. Had he owned the trademark he would have simply contacted Ebay/Vero not bother with me. I called his bluff. I said, produce the registration number. Dead silence.

I am 100% sure this guy who is a competitor was only trying to bs me into removing a competitive listing. In the past he has even violated my intellectual property rights by using my pictures without permission. So he has some nerve.

I've read certain things can be done about this. One thing was I would have a lawyer file papers here and pretty put him on trial for perjury(sorry I'm not up to speed on lawyer lingo). Are there any financial considerations? How serious is what he did? I don't think ignorance is on his side. He said he owned the trademark. You either know you own it or not. I must confess I'd love to nail the guy on this but only if it's not deemed petty.

As an IP owner I have to be real careful about sending out take down notices. While there is a revision mechanism for mistakes a mistake is not something to be taken lightly when you are accusing someone of theft. They can then sue you.

It wouldn't be terribly difficult to prove the message came from the person. I know his name. I know roughly where he lives. I know what he looks like. I know the names of his ebay handles etc.

Question is, is it petty? Yes it might be better if he had vero remove the listing and then I prove it was a false charge(vero is known for making mistakes) but that's along the line of well if he killed you we could of upped the charge to murder. I'm wondering more about violating my rights, falsely accusing me etc..is there any sort of pay day there? Proving financial loss is very difficult and probably costly.

 

[quincy]

What is the name of your state (only U.S. law)? MA

Dead silence.

There's a clue in that.

 

[Mass_Shyster]

Proving financial loss is very difficult and probably costly.

I don't see how this could possibly cause a financial loss.

Unless he signed a document, specifically stating that he signed under penalty of perjury, or otherwise made the statement while under oath, it's not perjury.

If you can show that the message was "immoral, unethical, oppressive or unscrupulous", or "must attain a level of rascality that would raise an eyebrow of someone inured to the rough and tumble of the world of commerce." you can file a 93A claim against him. (note: This is the first time I've invoked 93A where it may actually fit)

See Mass General Laws Chapter 93A

 

[ebaysucks]

I don't see how this could possibly cause a financial loss.

Unless he signed a document, specifically stating that he signed under penalty of perjury, or otherwise made the statement while under oath, it's not perjury.

If you can show that the message was "immoral, unethical, oppressive or unscrupulous", or "must attain a level of rascality that would raise an eyebrow of someone inured to the rough and tumble of the world of commerce." you can file a 93A claim against him. (note: This is the first time I've invoked 93A where it may actually fit)

See Mass General Laws Chapter 93A

See I'm wondering if a crime has been committed such as wire fraud. I agree financial loss would be hard to prove. Some website said a person wrongfully accused of infringement could file papers or motion in their local court and seek to have a judge make a judgement. It went on to say basically the person would more or less be on trial for perjury for lying about trademark rights. Really though I'm going by what some website said. These are not my words. There was some other jazz about jurisdiction too. Trademark law can get very complex. That is one thing I know. I just know the guy is full of it and want to see him pay one way or the other. I did contact his attorney general and they said they'd look into it. Declaratory Judgement was the term the site used. It specifically said he would have to travel here which i find remarkable since he is about 1500+ miles away.

 

[ebaysucks]

There's a clue in that.

Silence is deadly though or was it golden? Hmm..

 

[latigo]

What is the name of your state (only U.S. law)? MA

I was fairly recently accused * of violating someone's trademark. The accusation was not on any sort of company letterhead and certainly did not come from a lawyer. Instead it came through the Ebay messaging system(keeping with my running theme ebaysucks). The person seem to carry on in the 3rd person which is unusual for an individual. He threatened to turn me into vero(ebay's legal protection division to protect them not you). That was a big red flag. Had he owned the trademark he would have simply contacted Ebay/Vero not bother with me. I called his bluff. I said, produce the registration number. Dead silence.

I am 100% sure this guy who is a competitor was only trying to bs me into removing a competitive listing. In the past he has even violated my intellectual property rights by using my pictures without permission. So he has some nerve.

I've read certain things can be done about this. One thing was I would have a lawyer file papers here and pretty put him on trial for perjury(sorry I'm not up to speed on lawyer lingo). Are there any financial considerations? How serious is what he did? I don't think ignorance is on his side. He said he owned the trademark. You either know you own it or not. I must confess I'd love to nail the guy on this but only if it's not deemed petty.

As an IP owner I have to be real careful about sending out take down notices. While there is a revision mechanism for mistakes a mistake is not something to be taken lightly when you are accusing someone of theft. They can then sue you.

It wouldn't be terribly difficult to prove the message came from the person. I know his name. I know roughly where he lives. I know what he looks like. I know the names of his ebay handles etc.

Question is, is it petty? Yes it might be better if he had vero remove the listing and then I prove it was a false charge(vero is known for making mistakes) but that's along the line of well if he killed you we could of upped the charge to murder. I'm wondering more about violating my rights, falsely accusing me etc..is there any sort of pay day there? Proving financial loss is very difficult and probably costly.

I wouldn’t pass it off such a vilification as petty.

The nature of your profession translates the written falsehood into “libelous per se”. That is, harmful in itself avoiding the need to prove malice (in those states requiring it) and entitling the targeted party to recover general damages (and perhaps punitive) without the need to prove a specific loss.

It would be a big headache to take the guy to task, but making some of these liberal mouthed cyber-cadets eat their words in court might send a message.


[SUP][*] Incidentally and not wishing to be overly pedantic (of which I am often unfairly accused), the word “fairly” is an adverb and with your usage it modifies your verb “accused”, which I don’t think you intended. And like Truman Capote’s “Living and dying in LA is redundant”, “fairly recently” might be viewed alike.[/SUP]

 

[quincy]

He accused you directly, right? This was not communicated to anyone but you? Nothing of yours was removed from eBay?

There is no defamation if it is not communicated to a third party. There is no reputational injury. There are no damages.

If all you received was a letter and not a complaint, there is no legal action being taken against you at this point in time.

You do not need to respond.

As some additional notes:

Trademarks do not need to be registered to be rights-protected. Your competitor may not, therefore, have any "registration number" but still have trademark rights. Trademark rights arise through the use of the trademark in commerce, not through registration. In the U.S., it is (generally) the first to use a mark in commerce who has the rights in the mark. This is different than it is in some other countries, where registration is more important than first use.

If you used the name of his company (or whatever) in your listing (as a way to, perhaps, compare your company to his) and you used this name in a derogatory way, he can potentially sue you.

I suggest you have the listing reviewed, and all facts reviewed, by an attorney in your area, OR, if there is dead silence from him, respond in a similar fashion.

 

[Mass_Shyster]

The nature of your profession translates the written falsehood into “libelous per se”. That is, harmful in itself avoiding the need to prove malice (in those states requiring it) and entitling the targeted party to recover general damages (and perhaps punitive) without the need to prove a specific loss.

Libel requires publication to a third party. Here, the message was only sent to the OP.

I think 93A - Unfair and Deceptive Acts - is actually more appropriate.

It could be seen as extortion, but I think that's a stretch.

 

[ebaysucks]

Well he got totally silent on me so he's definitely not looking to up the ante(perhaps he is though by applying for a trademark, I would contest that perhaps). He definitely wanted to do me harm. I'm not saying I blame him...business is war...selling is war fought on a battle field of salty nails barefooted doing the highling fling. However I like to fight back. It's so dirty on ebay i highly advise no one in their right mind get involved in the practice of competitive selling, it is cut throat.

 

[ebaysucks]

He accused you directly, right? This was not communicated to anyone but you? Nothing of yours was removed from eBay?

There is no defamation if it is not communicated to a third party.

If all you received was a letter, there is no legal action being taken.

You do not need to respond.

As some additional notes:

Trademarks do not need to be registered to be rights-protected. He may not, therefore, have a "registration number." A trademark arises through its use in commerce, not through registration (at least in the U.S. - this is different than it is in many other countries, where registration is necessary to gain rights in a name).

If you used the name of his company (or whatever) in your listing (as a way to, perhaps, compare your company to his) and you used this name in a derogatory way, he can potentially sue you.

I suggest you have the listing reviewed, and all facts reviewed, by an attorney in your area, OR, if there is dead silence from him, respond in a similar fashion.

I know what you're saying but I've been using the name longer than he. It's a complicated matter but i know he doesn't own any trademark. Perhaps someone else will come forward? I'll cross that bridge when I get to it. Trademarks must be maintained and not abandoned though.

 

[quincy]

Maybe I wasn't clear, ebaysucks.

No one in the U.S. needs to register a trademark. A trademark is used to identify a product or service. In the U.S., the rights to the trademark/identifier arises from the use of this mark in commerce, NOT through registration of the mark. The first to use a trademark in commerce is generally considered the "owner" of the mark and can (potentially) prevent others from using this mark.

You have to be VERY careful when you are using another's trademark. The only (generally) safe way to use another's trademark is in a descriptive sense (ie, I drank a Coke). You cannot use another's trademark as a comparison to yours unless the comparison is an accurate comparison (one that could be proved in court should your use of the mark be challenged).

If both you and this other fellow are attempting to use the SAME name for your products or services, then there can be a trademark infringement suit the results of which would hinge on several different factors (first to use, similarities between goods or services, geographic reach, etc).

Is this other seller in the U.S?

 

[ebaysucks]

Maybe I wasn't clear, ebaysucks.

No one in the U.S. needs to register a trademark. A trademark is used to identify a product or service. In the U.S., the rights to the trademark/identifier arises from the use of this mark in commerce, NOT through registration of the mark. The first to use a trademark in commerce is generally considered the "owner" of the mark and can (potentially) prevent others from using this mark.

You have to be VERY careful when you are using another's trademark. The only (generally) safe way to use another's trademark is in a descriptive sense (ie, I drank a Coke). You cannot use another's trademark as a comparison to yours unless the comparison is an accurate comparison (one that could be proved in court should your use of the mark be challenged).

If both you and this other fellow are attempting to use the SAME name for your products or services, then there can be a trademark infringement suit the results of which would hinge on several different factors (first to use, similarities between goods or services, geographic reach, etc).

Is this other seller in the U.S?

Yes I understand all that but if someone places any value in a name they would register the name. This person is in the us and I've used the name longer than he.

 

[quincy]

Yes I understand all that but if someone places any value in a name they would register the name. This person is in the us and I've used the name longer than he.

Are you in the U.S, as well, or are you in Canada? Because if both of you reside in different countries, you both may have legitimate claims to the name. Selling online, where sales cross borders, does sometimes create conflicts. Both users of the same trademark may have equal rights to the name, as they acquired rights in the name in their respective countries, but they may not have rights to the name in the other's country, only in their own.

Registration can certainly be wise, but not registering a name does not necessarily mean that the non-registered user places less value on their trademark than a registered user does. The one with a non-registered trademark may have developed enough name recognition for his goods or services to not need registration to support rights to the name.

Assuming you are both in the U.S., if you have used the trademark longer than this other fellow, and if you have registered your trademark, a court would look at you as the presumed owner of the mark.

Whether you want to go anywhere with any of this is something you should discuss with an attorney in your area. There does not appear to be anything you HAVE to do at this point, however, including responding to the threats made to you by the other seller.