Power Sellers Unite

saint hermes · Joined: 06 Dec 2011 Posts: 5

Hello,
I am just registered at PSU, because I have a problem as well.
I am did read a lot of topics, but unfortunately I didn't found postings what matched my problem.

Introduce:
I am located at Bangkok.
I sell fancy belts on eBay.
Almost buyers use a brand as keyword to find the stuff what they are looking for, so I decided to register the brand Saint Hermes (St.Hermes) on the IP Department Bangkok, because Hermes it's an important keyword and no anyone registered this brand worldwide.
On the application it's required to *provide pictures of the products and *a print of the design of the brand-name and/or logo. Further it's required to *choice one or more categories to register the trademark.
So I applied fancy belts and back-support belts at the category fashion belts and collectables.
I know that my brand and my products very close to the Hermes Paris belts, but 1. the Hermes Paris H-letter has no copyright (it's not possible to get any copyright of any single letter or count worldwide), 2. the design of the H-letter it's the font "courier new" (to get a copyright it's impossible as well) and 3. all my straps has A: other shapes, B: other colors and C: other stitching compare to the Hermes Paris straps.
4. The IP Department accepted my application and by the way they had to decide by law-rules.
5. All my items embossed by St.Hermes at the front side and the H-buckles separately marked (back side) by Saint Hermes, shows a product serial number (back side) and the name of the model (back side) / all features at front and back side of my belts shows everyone that it isn't Hermes Paris made in France belt, shows no caleche as well and has completely other marks than Hermes Paris belts).
6. To prevent any misunderstandings and misinterpretations concern the brand St. Hermes, I am advised two times at the 40+ lane terms & description at my auctions, that the brand St.Hermes has no any relation to the well known brand Hermes Paris from France e.G. and on the end of this area I placed the data of registration. The last sentence of this area it’s directed to the VeRO member and advised them too, that if they has any problem with this auction, they should to contact me and I will transfer all claims and complains directly to the St.Hermes contracted attorney.

Story:
After several eBay-account suspensions because Trademark Violations I decided to try to solve the problem and joined the costumer service eBay USA.
After two dummies hang on during the call I got a very friendly supporter to the phone line.
He did recommend that I should to apply as VeRO member and than the problem should to be solved.
So he sent me the forms, I filled out and sent back by fax, same as through eBay required.
I am also informed eBay on the fax that I am expect a confirmation concern received documents and more than that I need to know the name and contact data of all anonymous persons, who claims to be the rights owner of my own trademark.
Now more than 3 weeks over since sent and after 2 weeks smooth trade during, I got an account suspension again because Trademark Violation.

I did read a lot of similar problems at PSU, but no anyone it was a Rights Owner of a trademark.

The point it's (I think so):
1. unauthorized interferences into a legal trademark on the public trade-market (it's a crime act)
2. obstruct of a trademark on the public trade-market (it's a crime act)
3. impair image of a trademark (especially on the buyers on eBay who interested at my items and placed bids, but repeated interruption of auctions through eBay, it's a crime act as well)
4. loss of profit
5. influence and fraud(it's a crime act) through eBay concern the payment processes (after account suspension my buyers not able to pay the invoice, but eBay charged the sales-fee already from me and I am not able to get credits back for these successful auctions / other buyers who are waiting for the package I sent already worry about and get panic, because eBay shows “not a registered user” when the click my account and some of them opened a case against me after one week already since purchased item and complain that they still not received the package(worldwide shipment from Bangkok, almost to USA /needs 10-30 days))
6. Wrongful ending of a public auction under false pretenses through eBay. (it's a crime act)

Question:
It's there anyone who think to know the way to solve this problem, attorney not involved and/or have contact data from the eBay legal department?
If an attorney it's required, it's there any way to contract them on-line, phone e.G from Thailand to file this problem at USA?

I would be happy if I can get any productive answer.
Thanks in advance.

luckyalive · Joined: 27 Apr 2008 Posts: 589

eBay lies, lies, and tells more lies. You cannot believe anything they say or do - thats how they treat even people living in the U.S. Call one customer service person and they will tell you something completely different from the next customer service person.

I suggest changing your product name. Even if you have legal grounds large companies have lots of money and a legal team to file nuisance suits and claims for years against you.

I suggest you contact whatever government officials would be fitting in your country. They have the power to tell eBay how eBay does business in your country. For example, a few years back eBay got complaints from European countries, or was it just France, about Nazi items on eBay. eBay banned them because they were afraid of losing the European market.

You may have to change the way you do business. A lot of sellers from Asia will set up a branch office in California or another state to handle all the imports and selling on eBay. That way you can ship locally and faster and import your items in large quantities via container ship. I'd rather see legit belta come from Thailand than EVIL China :0)

You probably wll have to find a local attorney that connections within in the U.S. - though I really think it is going to be a waste of time. eBay could simply decide to stop doing business with you, regardless of trademark and copyright laws - they are not required to do business with you by law.

saint hermes · Joined: 06 Dec 2011 Posts: 5

luckyalive
....Even if you have legal grounds large companies have lots of money and a legal team to file nuisance suits and claims for years against you.....
_______________________________________________

First thanks for reply.
I wish they would to do it, because than all the law-breaking facts would come to the public ears, at least to the judges ear.
But, unfortunately I got no any informations concerning:

1. who made the complain
2. what exactly the infringements
3. who it's to contact to clear/solve the problem

at the Mails from eBay, when they informed me about trademark violations in the past.
When I asked for contact data, they only answered (if they answered) that I find the E-Mail address of the claimant at the E-Mail what sent from eBay concerning the trademark violation.
But there was never no any content of claimants contact data.

Yesterday I got a E-Mail answer from eBay Singapore after I asked for costumer service contact fitted by competence at USA or/and contact data from the legal department eBay USA:

.....I reviewed your account and found that there are many security issues about your account.

.....Therefore, your account will remain suspended for security concerns, which include: account taken over by a third party;false/missing/mismatching account information and previous or current involvement in high risk selling.

.....So we regret to inform you that your eBay account will remain suspended indefinitely. Our decision is based on the information you provided to us in addition to evidence from our records.

.....Although future mails from you might be read, we will not reply.

Yes, that's right,.....not longer any infringement covered by complains of trademark violation.
eBay's complains now sounds same like the US Government-practice if they take action, but can not explain the reason of, to the public. So they call it: National Security. Because it's popular magic words to give any undefined reason for something.
I think this it's a really evidence that eBay "play with rigged dice".
But it's still the big question: Why eBay do like that with sellers???
The sellers only bring all the fee's and charge's on eBay auctions/trades.
What it's the logical reason and where it's the profit (satisfaction of interest or /and economical) ???

At last to this post I will tell, that I am born in Germany,..I had a lot of different businesses at different fields and of course a lot of business-contacts to private persons, small contractors and big contractors as well.
But never in my life I made such horrible experiences like now with eBay.
Never before I saw that only one company treat it costumers so bad and horrible like eBay.
By the way, I had contact to the eBay Germany in the past as well. Very different.
Willing to help, friendly and fast tasks,....but they cannot help me, because my account registered at Singapore.
I now and I am sure, if eBay Germany would show the same behaviour to it costumers in Germany, so the department of trade control would file automatically to get to close this company because unethically business practice, except to pay a high fee because breaking business rules.

Concerning to Thailand, eBay has no branch in Thailand. The Asia branch it's in Singapore (because I am registered there (until yesterday))...so I can't do anything here by the governments.

mojavelyn · Posted: Thu Dec 08, 2011 3:06 am Post subject:

As for the infringement issues, as a site owner I have had a couple run ins with copyright-trademark attorneys.

1. The aggrieved party has to contact the site owner or legal dept stating what issue on the site they feel voilates their copyright or trademark.

St. Hermes is too close to the Hermes designer brand. And any where you go with that name is going to create trouble. Frankly, you brought that on yourself by trying to be cute. Unless it is your legal name. then you might have a case.

Now I'm curious about your being in trouble with ebay over selling hi-risk items. Let me guess, designer fakes? 3rd party takeover? And false, missing and mispresenting your account iformation? that part is enough to get you whacked.

saint hermes · Joined: 06 Dec 2011 Posts: 5

mojavelyn wrote (View Post): › docWrite("quote")
Now I'm curious about your being in trouble with ebay over selling hi-risk items. Let me guess, designer fakes? 3rd party takeover? And false, missing and mispresenting your account iformation? that part is enough to get you whacked.

I do not know as well what the mean at detail.
I am always offered/sold my own brand belts, no clothings or other apparels.
What means 3rd party takeover?
Regarding my account informations, never changed anything at this account since opened. So I do not know too, what they mean.

The 1th big question it's, why never any VeRO contacted me about.
...And the 2th it's, why they not able to open a lawsuit against me if they are right. I would be happy if they do it.

In fact, every single item I offered by auction style, start price US$0.99 I sold, if I didn't stop the auction before ended because some mysteries things (like more watchers than page-click e.G).
Almost the amount of ended auctions average to high level.
I am still believe the theory that some competition seller made the problems for me, after I did read here at PSU that this behaviour very often at eBay.

Now Paypal involved as well. They did freeze my account on yesterday reasoned by trademark violations on eBay.
They wrote, that they got informations through eBay concern to TM violations and they wrote that Paypal not accept money-transfer through Paypal if TM violation it's involved.
Short-cut,...I violated the Paypal policies.

Now I think about to freeze the current eBay bill payment.

mojavelyn · Posted: Thu Dec 08, 2011 9:54 am Post subject:

Continue and Hermes will. the first step is a cease and desist letter to the site. And if you open your own site, it might take a while, but they will find you, send you a cease and desist letter, at which you must respond.. If you fail to do so, they can bring suit.

Remember ebay just had big legal problems with Louis Vuitton over fakes. What makes you think Hermes won't go after them, and you too eventually?

Actually, you might have been legal and within your rights by registering the name as St. Hermes, but you are attempting to cash in on the Hermes name with cheap junk.

And you actually admitted it here. Better check on Hermes copyrights.

We have discussed TM violations here before. And let me tell you, these boards are well spidered and appear on google quite regularly. So by your own admission on these boards, that you did so create the name and a similar item knowingly, willfully and delibertally intend to infringe upon the Hermes Paris name and trademark.

These big corporations like Hermes, LV, Hersheys, etc have people searching the web for voilations.

Actually, Hermes Paris should be reading these boards. And ebay too.

You legally and legitimately own ebay those fees, regardless. You agreed to ebays terms and conditions when you joined.

You agreed to PP's terms and conditons when you joined.

and whether or not you agree to new terms and conditions, you do legally agree to them by continuing using their services.

You are acting like a snotty-nose, wet behind the ears, pimply faced teenager who got his hand caught where it shouldn't have been, and cries foul.

saint hermes · Joined: 06 Dec 2011 Posts: 5

mojavelyn wrote (View Post): › docWrite("quote")
You are acting like a snotty-nose, wet behind the ears, pimply faced teenager who got his hand caught where it shouldn't have been, and cries foul.

"lol" sorry, but I am not a native English speaker and the last sentence sound very funny at my mother tongue.
Back to the topic.
Regarding any other copyrights I should to accept you did suggest , because I will remember you to my opening post here.
There I did described already why Hermes Paris or Saint Hermes or any other party cant register the single H as copyright, especially because it has no design, only a standard font.
And I explained there already too, why I decided for Saint Hermes (St.Hermes) and no other name.
Other case it's Louis Vuitton, there it's a LV initial and for that you can get a copyright.
In fact for example Hermes Paris registered in Thailand approx. 20 years ago the brand for shirts, cap's, bags, saddle etc., but till today forgotten to register belts. "lol"
It took three times for me to get an accept of the IP department to register my brand, because before some parts of my brand/logo to close to Hermes Paris brand.
It means the IP department did check out exactly any danger of confusion compare to Hermes Paris. After that they accepted my application and they decided on basis by the IP law.

You suggest I should to accept all the DMCA rights of Hermes Paris for example. But they have no other rights like my brand and so eBay should to accept my DMCA rights too.
Generally I don't worry about a big fish, they don't scare me nevertheless I know they have more financial power at background.
I never would say YES AT ALL only because it's a big company/ brand or other party.

The point it's in my case, eBay send some confused not proven claims, change the claims within 2 days, claims my violation it's against the law but pull in the fees at the same moment and obstruct the payment process between buyer and me at the same time, A: through the own website and B: through Paypal.
Furthermore they don't accept the official documents I sent to exonerate me and it's not willing to give me the contact-data from the supposedly claimants. No way for clarification on the normal and civilized way to go.
Sorry, but from this moment the funny things had stopped and I am personal have no any bad conscience and will use the same weapons like my rival, because it legitimate through. But for sure it has nothing to do with snotty nose etc.

mojavelyn · Posted: Thu Dec 08, 2011 12:58 pm Post subject:

I have taken on the trademark attorneys. Not to the extent that tabberone has http://www.tabberone.com/Trademarks/trademarks.shtml

I received certified return receipt requested from Hershey Candy copyright attorney over a t-shirt which was hersey licensed, made in honduras and sold at K-mart. New with tags. The attorney stated statues and other legal-ese stating copyright and trademark infringment. I had the seller take additional pictures of the neckline label, the k-mart tags, and basically in very polite terms told the attorney to take a hike.

Another seller put up a US Navy Squadron patch, which was fine in itself, but he made reference to the Hell's Angels Motorcycle club, because the patch belonged to a squadron called Hell's Angels and the description read motorcycle or squadron patch. I got a very polite email from a Hell's Angels legal representive. I also googled him. I edited the item and told the seller why with a copy of the email. AND I wrote the rep back and said the item had been edited, which was all he asked to be done. The patch was a military patch only and not an authorized Hell's Angels Motorcycle patch.

Another seller makes mosiacs... one was of a
brand name beer label. I got an email from a phoney email address demanding I take the item down. I refused. I don't deal with phoney wanna-bes. The person demanding the item be removed had no legal rights to demand such. I did inform the seller of this issue, he voluntary removed the item, which I asked him to put back up because I wasn't going to kow-tow to a coward hiding behind a phoney email.

The first two cases gave me real names, addresses, email addresses to follow up with. the 3rd was just someone trying to eliminate some competition.

However, you are attempting to cash in on a name brand with probably inferior products. And if your products get confused with Hermes Paris, then you could have some big trouble on your hand.

saint hermes · Joined: 06 Dec 2011 Posts: 5

Thanks for all the examples,...very interesting.
What I see it's one thing, that on the US markets it has a little "wild west manner" and it seems the old slogan " In America it's all possible" it's still valid.
But I am a European and I learnt that to follow the rules and if I see some rules has a "hole to hide" I can use it and I will use it.
I am not paid the brand-registration just for fun.
The reason it was to get a legally background.
And if some other Rights Owner has any problem with that, so it has the way to appeal against my registration.
If these Rights Owner choice the well known eBay ways to claim something and anything without legally basics or not proven basics, so they disqualify by it self and reveal it self as anarchist.
Sorry, but I have no respect for these.

Regarding your assumption to the quality of my belts, so we should to define the different levels of quality.
Of course I thing that the quality of for example Hermes Paris belts it's good, but who set up the value for these items?
And who says that the price of these items it's appropriate to the value?

I am personal thing, that the prices of Hermes Paris items to high, price gouging and has nothing to do with the material value or quality value of these belts.
My belts has not top high quality.
But the quality its OK.
And the buyers paid high prices for my items, they knew that it's not a Hermes Paris belt and I am always indicated about.
I had 100% feedbacks.
I had only one neutral feedback, this guy wrote at detail OK.
All other detailed feedbacks absolute excellent content like "love the belt", "1th class seller", gorgeous belt" etc. Some buyers ordered more belts after the first eBay trade.
So it seems that my belts has a good quality and the prices what the buyers paid it was OK compare to the value of the item.

Anyway, I think that I can't reinstating this current used account on eBay, because they don't have any interest to solve the problem together with me.
But I am happy as well, because I did read really horror scenarios here at PSU from other sellers, power sellers.
They got so badly treated through eBay, compare to these I had very good luck, BUT it shouldn't mean to be a standard.
If the sellers start to think, I am a lucky seller because eBay hit me only but not kill me,...than "good night" to all legal rules.

mojavelyn · Posted: Thu Dec 08, 2011 2:40 pm Post subject:

First, if the attorneys don't defend the copyright the company can lose the rights. These attorneys get paid big bucks on retainer fees for this. However, with some diligence you can take on the attorneys. so if you persist, which is your right, you can expect a battle.

I make jewelry from pattern magazines I buy. It states "the patterns in this book are for personal use only and not for resale in any manner." however, most of the patterns in the book are not designs in themselves. They are stitch patterns. The design can be copyrighted, but the stitch that makes the pattern design cannot be. Therefore, If I find a spiral peyote bracelet I like, I can make it and sell it. because the stitch is peyote. And then comes First Sale Doctrine, which means that once I buy the magazine or pattern, I can sell the made piece of jewelry.

I can also sell the pattern and the magazines as long as I sell them intact. What I cannot do is make copies of it to sell.

Now comes the really big question. Just because I can do all of the above, is it ethical for me to do so?

So just because there is a hole in Hermes Paris copyright, is it really ethical that you do so? And yes, I do feel you are infringing on Hermes Paris.

knappschiles · Joined: 25 May 2005 Posts: 4035 Location: Wi

In post #3 you wrote -

unfortunately I got no any informations concerning:

1. who made the complain
2. what exactly the infringements
3. who it's to contact to clear/solve the problem

Frankly that has been eBay's mode of operation for many years.

In Feb of 07, out of the blue, I was NARU'd by eBay. I had been a seller since before 99. To this day I have never gotten any info about WHAT I supposedly did wrong. I wasn't even selling at the time it happened. Hadn't listed anything since the previous Dec. I had lost a couple of auctions shortly before the NARU but they never accused me of Shill Bidding.

I attempted a couple of times to get the account reviewed and reinstated but always got a return email similar to yours - sorry, according to our records ... blah blah blah.

In most countries of the world when you are accused of a crime at least you are told WHAT they claim you have done so you can defend yourself.

But not with eBay.

Good luck trying to get anywhere with them.

For me, I had already had my own web site. Between that web site and a couple of the alt listing sites, I have done as well or much better than I ever did on eBay. It wasn't worth the headaches to continue to be on eBay. At least for me.

Carol

JohnnyMax · Joined: 26 Mar 2010 Posts: 53

My advice, forget it and move on, you do not have the resources to fight, so stop wasting your time.

Stockmiser · Joined: 03 Jun 2006 Posts: 1169

Saint Herme - Lot of things to consider in TM infringement.

First, were you intending to infringe. If you developed your product with the idea that you could piggie-back on someone else's well known trademark, then it doesn't matter is the "H" typeface or the "saint hermes" isn't an exact match. Just look at all the "xx-bay" type auction sites that ebay has shut down.

Second, is your TM likely to be confused with the copyright holder's TM. If you were selling, let's say, "Saint Herme's Rum", there would probably be no problem since it's a different business and audience. But the fact that you are in the exact same arena is a huge factor. Your product is definitely likely to be confused with the TM holder.

Third, just because you were able to copyright your product does not preclude another TM holder from claiming rights. Ebay's legal dept probably made the call that Herme's Paris's TM is filed in Europe and the USA, versus your Thailand TM, and went with the more established brand. It's their right to do that. It's also your right to sue Herme's Pairs AND ebay for TM infringelement based on your Thailand TM. But I think we both know who has the deep pockets here.

Schistosomiasis · Joined: 19 Jan 2010 Posts: 192

Dear St. Hermes,
Stockmiser has given you some valuable advice.
.
In the long run, sqeezing through a trademark loophole will give you endless problems. At the very least, the customers you sell to are likely to be unhappy. At the most, you'll have Ebay problems or legal problems.
Trying to blame Ebay for this is not the professional way to handle the situation. Ebay may have given you conflicting information, but the larger issue was caused by you alone. I think you know that.
.
My advice, get yourself a unique brand name, with a logo that can't possibly be confused with anyone else's. I understand that the downside of this is you won't get a mass of confused customers accidently buying your product. Look at the bright side, if your brand becomes famous, maybe next year you'll find competitors infringing on your trademark. :D