Are pirates selling counterfeit goods bearing your trademark on EBay?  Are unlicensed copies of your software or bootleg copies of your CD being sold on EBay? Has ad copy been lifted from your web site and placed in EBay ads?  Are knock-offs of your patented invention being sold on EBay?  If you answer ‘yes’ to any of these questions, your property rights are being infringed.

So what can you do about it?

EBay’s “VeRO” program allows the owner of the property right or the owner’s agent to designate infringing listings for removal from EBay.   The process is simplicity itself.  First, download the “Notice of Claimed Infringement” form.  The form asks that you identify the property right that is being infringed, identify one or more infringing listings, and sign the form.  You then fax the completed form to EBay, where staff will review the completed form and the property rights that you claim. EBay staff then will remove the offending EBay listing.  You can submit subsequent “Notice of Claimed Infringement” forms electronically.

It is your obligation to identify the offending listings, but EBay makes that easy, too.  You can create automated searches within EBay relating to your product and configure the system to automatically e-mail the results of the search to you. Is monitoring too much trouble for you?  There are fee-based providers that will be happy to perform the monitoring and submit the forms for you.

The VeRo program is an outgrowth of efforts by owners of intellectual property rights to hold EBay liable for infringement by persons selling on the site.  See, for example, the case of Tiffany v EBay, Inc., No. 04 4607 (S.D.N.Y. July 14, 2008), where EBay was held not liable for contributory infringement of Tiffany’s trademark due to the sale of counterfeit goods in part because EBay had the VeRO program in place to remove infringing listings.    The court held that Tiffany had the duty to police the listings, not EBay.  The case is currently on appeal.

The EBay VeRO program does not always function as advertised.  In Hansson, Inc. v Brower, 4:07-cv-05898-CW (N.D. Cal. Complaint filed November 21, 2007), Hansson named EBay as a defendant in a trademark infringement case where Hansson submitted eight different notices plus a cease-and-desist letter to EBay, all with no action from EBay to take down any of the listings.  The lesson: police EBay while EBay polices the infringers.  To learn more about the VeRO program, visit EBay’s description of the program.

— Robert J. Yarbrough, Esq.