posted on February 6, 2008 08:21:51 AM new
I have been listing a product for 2 months now without any problems. Yesterday I get an email that 3 of my auctions were removed because of "trademark violations". I used the name EAMES in the auction. So, I did what every other ebay seller does to describe an item from this particular era... I called it "EAMES ERA". I get hit again with the trademark violation...
For years now hundreds of thousands of auctions have been listed using the term "EAMES ERA" in the title to describe the modernist movement of the 1950's to 1970's. A quick history lesson... Charles and Ray Eames were designers who specialized in furniture from this period.
Currently there are 2346 items on ebay with the term "EAMES ERA" in the title. Yet, this is the only time in 10 years I have listed items on ebay using this term that the item gets pulled.
So, I have to relist the item again, removing the long held appropriate term to describe this item. The only reference to the name Eames is in the description and is clearly written as "influenced by Charles and Ray Eames"... which I believe is appropriate according to the terms of ebay. We'll see what happens.
What truly bothers me is the notion that they pull this item, but continue to accept the thousands of others that are listed regularly... that are not even close to be what they designed. From Cheese plates, to wood bowls, to rugs, to clothing, to other not even close to Eames designed furniture. It is absurd! Ugh!
posted on February 6, 2008 08:48:10 AM new
I believe there is a way that you can contest the trademark Violation. You can ask that the person protesting your use of a term prove that they indeed hold the trademark on that term.
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Filing a Copyright Counter Notice. For listings that have been removed at the request of the rights owner for copyright infringement, you may have the option of filing a Counter Notice with eBay if you feel that your listings were removed in error and you have not been able to come to an agreement with the rights owner.
A Counter Notice is a form provided by eBay in compliance with the requirements of the federal Digital Millennium Copyright Act. The form is a legal document that requires you to, among other things, certify under sworn penalty of perjury that your listings were not infringing and were removed by mistake or misidentification. When you sign a Counter Notice, you will also have to consent to federal jurisdiction and service of process. Please read this form carefully, so you fully understand what you agree to if you choose to submit it to eBay.
Once a valid Counter Notice is submitted, eBay will provide a copy of the notice to the reporting party and will advise them that the listings will be reinstated after 10 business days if we do not hear from the reporting party that they have filed an action seeking a court order to restrain you from re-listing the items.
If you are interested in filing a counter notification, please click on the “email us” link below and provide us with additional information regarding your appeal.
posted on February 6, 2008 09:13:42 AM new
It's not BS and there is no point in appealing.
This (the Eames VERO pulls) has been going on for some time. You're actually lucky that this is your first listing pull. That thousands of others get away with such use means nothing.
Eames designed furniture is still being produced. They don't want the name used inappropriately. That's their prerogative and their right.
posted on February 6, 2008 09:28:20 AM new
That's very unfair of Ebay to do this to you and leave all the other auctions running.
Would it help if you called ebay and talked with them and explained that other auctions are still running with the same descriptive term in there auction?
posted on February 6, 2008 09:57:12 AM new
Life is not fair. EBay is not fair. There is no point in whining to eBay about "fair." The Eames people will not change their minds. Why should they?
Shag can spend time reporting the other listings until more are pulled. Or, he can adapt to reality, be grateful that he was able to use "Eames Era" for ten years and get on with business.
I have also used Eames Era as keywords in the past. Until I started reading about the listing pulls. Now I use MCM but only if the item was actually produced mid-century.
I have no idea what to use if it is a new interpretation of a mid-century style.
posted on February 6, 2008 11:51:13 AM new
Try one of these. Of course they probably won't get the same amount of hits as Eames Era would get but it is worth a try.
Vintage Modern, Century Modern Design, Or a word used for the 50s-60's era. maybe something associated for the 64 - 67 worlds fair. I think they featured furniture like that.
Evidently there is a seller that has the same items as you do and they don't like it. Some sellers just search to find auctions like this to rid them from the search and brings theirs closer to the top.
I had an image stolen and I wrote the seller and he said "He was in a hurry to list and didn't have time to take pictures. that coming from a Power Seller.
_________________
posted on February 6, 2008 12:17:19 PM new
zippy- I agree with your contention regarding this problem... earlier I changed the title so it does not include the term "Eames" in it whatsoever. Guess what??? They still pulled it. It isn't about the Eames name... it is about the product made by REAC. Eames has not authorized REAC to make this product. They have authorized Vitra to make them as "official Eames product"... at a whopping cost of $200-300 each.
There is a dispute going on between the two companies right now over trademark vs patents. Eames is claiming they hold a trademark on the actual design... Reac is arguing that the patents have expired and anyone can produce the design.
Even if I do not include the Eames name anywhere in the listing and keep it to REAC Designer Chairs Retro... blah blah blah without any mention of the designer, Eames Office claims they will file a trademark violation each and every time.
Ironically, Eames Office, when asked if they are pursuing this in court simply stated that it would be too expensive for them to pursue it Internationally. Their tactic is to handle this here in the US by going after retailers and distributors... those of us who lose money in the process, not the source of the problem.
posted on February 6, 2008 12:25:29 PM new
I don't blame them for doing what works.
I am confused though. If you know the chairs will be pulled, why are you relisting? They can restrict or even close your account for less. Doesn't that concern you?
I only ask because you said this:
"So, I have to relist the item again, removing the long held appropriate term to describe this item. The only reference to the name Eames is in the description and is clearly written as "influenced by Charles and Ray Eames"... which I believe is appropriate according to the terms of ebay. We'll see what happens."
Was that in reference to the chairs or something else?
edited to add quote marks
[ edited by zippy2dah on Feb 6, 2008 12:26 PM ]
posted on February 6, 2008 12:46:10 PM new
I relisted them b/c I made changes that I thought would rectify the problem... changing/removing words. I only found out a few hours ago what Eames Office is disputing.
I think Eames Office is over reaching their claim by using the "trademark" vs. Reac's patent argument. It obviously works in their favor.
After reviewing all of Reac's literature... Nowhere on Reac's packaging does it specify the designers or chair names. They simply give a chair number and volume number. The distributor is the one who gave titles to each chair... which would be copyright infringement.
I guess what I am saying is that I highly doubt Eames Office has a legitimate argument for "trademark" violations if there is no mention of the Eames name or any name given to the actual chairs... but rather they are referred to as chair #1, volume #1, etc... but that isn't to say they won't try.
On a side note to this whole thing... a woman came into my girlfriend's office with a bag of shipping peanuts to donate a few years ago. The bag sat in the office for several weeks and finally she gave me the bag. The bag seemed heavy, and I found a box with a pair of noise cancelling headphones for sportsmen in it. We waited another month in hopes that someone would show up looking for these since the woman randomly came into her office and my girlfriend had no way of knowing who she was... nothing. So, we put them on ebay. The company who made them sent a complaint to ebay claiming we infringed on their "exclusive" agreements with other companies to sell this product. I simply disputed the this with ebay and they allowed me to sell the product. My argument is that every major company including Coca Cola, GM, Ford, etc has exclusive agreements to provide their product through dealers... but once the item has been passed to the consumer, the consumer has a right to sell that item. I know it really ticked off that company. We took the $ and donated it to the Humane Society.
posted on February 6, 2008 12:56:00 PM new
Directly from REAC's literature:
"The products of our company are generic. A generic product is a product thati is developed based on a product whose design is the same as the original one, but whose patent terms have already expired and which have became license free.
In general, a designer can design products, etc pursuant to contracts and provide a certain maker with the rights to manufacture and sell the products exclusively for a certain period of time in accordance with contracts. However, the period of such exclusive rights is limited by law, and when the period exceeds the specified limit, other makers that do not have such exclusive rights also become able to produce the same design products.
Manufactured products are designed with the purpose of producing them in large quantities, differing from art works, which are unique products. When a manufacturered product becomes license free and various makers start to produce the same designed product, this product is not a copy product or reproduction; this is a 'generic product'."
Here is the official response I received from Eames Office without furnishing REAC's statement above...
" REAC has raised this same issue - following is an excerpt of our attorney's response to them"
"With all due respect, your reference to "patents" and to "generic products" misses the point. These designs are not "inventions" subject to patent protection which, as you note, does expire after a relatively short period of time. Rather, Eames Office owns trademark (trade dress) rights in its product design, and it is protected under Section 43 of the Lanham Act. Moreover, Eames’s original design elements are also protected under the Copyright Act. 17 U.S.C. § 101. Thus, contrary to your suggestion, our designs are not "license free."
In fact, Eames Office has contracted with Vitra Design Museum as the only authorized manufacturer of Miniature Eames Furniture in any scale. Therefore, I am sorry to say that this exclusive contract would preclude any agreement with your firm to manufacture miniature Eames designs."
Did you say you purchased these from a US based distributor? We would very much like to find a US distributor for REAC products, it would make our job much easier.
Thanks again for your understanding.
Ric Keefer"
Interesting that these two companies are interpreting their jurisdictions so differently... something I simply prefer not to get in the middle of. I have contacted the distributor to get a refund for this product.
posted on February 6, 2008 01:18:59 PM new
"The company who made them sent a complaint to ebay claiming we infringed on their "exclusive" agreements with other companies to sell this product. I simply disputed the this with ebay and they allowed me to sell the product. My argument is that every major company including Coca Cola, GM, Ford, etc has exclusive agreements to provide their product through dealers... but once the item has been passed to the consumer, the consumer has a right to sell that item."
This is First-Sale Doctrine territory.
Stealing another's design and producing it as your own, no matter what you call it or how you justify it in your product literature, is not.
"I have contacted the distributor to get a refund for this product."
Good for you. I hope they give it to you. They obviously know they have a problem with the Eames people and they should not even be selling this product until and if they straighten that out, IMHO.
posted on February 6, 2008 06:16:56 PM new
I have to agree with Zippy on this one. Companies build their trademark and if they let their brand names be wantonly used unchecked, they risk losing the rights to later enforce them. My guess is that the company that is licensed to produce products with the Eames name is asking Eames to protect their interest on eBay. Have you considered using the licensed company as your supplier? Eames-era is commonly used to depict a certain style, as well as a certain time period. However, if the design is not from Eames, it seems appropriate to not use their brand name - which also implies design originality and quality, and refer to the time period only. Mid-century only takes 2 more characters than Eames era. Louis Vuitton wannabees are snagged by the hundreds (thousands?) by eBay, but it seems that even more slip through the cracks. I see little difference in your scenario. Some are caught. You've been lucky so far but are skating on thin ice. Edited to add: Rereading the post, I see now the high cost of buying the licensed product. I think this is typical, part of the high cost paid is the right to use the Eames name. I can see why the licensee and its customers are upset when eBay sellers use the Eames name and skirt the licensing fee mark-up. If I understand correctly, the wholesaler does not use the Eames name in its descriptions. Smart move.
[ edited by pixiamom on Feb 6, 2008 06:34 PM ]
posted on February 7, 2008 09:17:39 AM new
Upon further review of ebay's rules, it seems that Eames Office is misusing their VeRO account. Technically speaking, their argument that it is a trademark violation is completely inaccurate.
Eames Office seems to be using a legal scare tactic to suppress the sales of these items. From what I have received from Eames Office, they have only contacted Reac regarding this matter and have no legal grounds to stand on other than they claim trademark infringement. They have no intentions of pursuing Reac, but rather to hassle others that sell the product using scare tactics.
The only grounds Eames Office would have had is the patent argument, and that has expired. Case in point... Modernica makes a Fiberglass Shell Chair using the exact same press that was used by Herman Miller to create the Fiberglass Shell Chairs designed by Charles and Ray Eames. They cannot call it the "Eames" Shell Chair, but they make it exactly like the original "authorized" version and call it the Fiberglass Shell Chair. Herman Miller still makes the "authorized" version... but they no longer use Fiberglass, which was the original design. They use plastic. Ironically, if you go to Herman Millers website, this is their claim to why they went to plastic... "Charles and Ray Eames adapted molding techniques developed during World War II to mass produce this classic design. Available in side and armchair versions, today's molded plastic chairs are true to the originals and are fully authentic, with updated materials to meet environmental requirements."
Interesting, considering Modernica uses Fiberglass... which obviously must still meet environmental requirements if they can produce them... and the Modernica and Herman Miller prices are exactly the same.
Ironically, this is a direct example of a chair for chair comparison, whereas my situation is a toy vs. chair comparison.
