Retailers Still Want New Laws Blaming eBay For Shoplifting; Law Enforcement Isn't So Sure

from the anti-competition dept

A group of brick-and-mortar retailers have been pushing for years to pass laws that put liability on online sites, like eBay, if stolen goods are sold through the sites. This really has nothing to do with preventing theft from their stores, as they claim. Instead, it's really an effort to attack online competitors and second-hand sellers to try to boost the primary market. Studies have shown that the number one source of theft in stores is actually employees. If the retailers were serious about cracking down on theft, they would do more to watch their own employees... but instead, they've been trying to create a moral panic by claiming that the use of eBay leads to crime because people get so addicted that, after they run out of their own stuff to sell, they start ripping off stores just to keep that eBay high going. Just look at their own words:

"Thieves often tell the same disturbing story: they begin legitimately selling product on eBay and then become hooked by its addictive qualities, the anonymity it provides and the ease with which they gain exposure to millions of customers. When they run out of legitimate merchandise, they begin to steal intermittently, many times for the first time in their life, so they can continue selling online. The thefts then begin to spiral out of control and before they know it they quit their jobs, are recruiting accomplices and are crossing states lines to steal, all so they can support and perpetuate their online selling habit."

Uh huh. Only problem? Actual stats show that such retail theft is on the decline. But, of course, that won't stop the lobbyists from these stores from pushing -- and that means we've now got the fourth such law introduced just this year to deal with. With the introduction of the new bill, the House Judiciary Committee held hearings with law enforcement officials who did claim that retail theft was a problem, but according to Thomas O'Toole, they also said no new laws were needed. What are the chances of that happening? Apparently, the law enforcement folks said that the online websites like eBay are actually quite cooperative, and the only problem is they need more money and resources -- not more laws. Somehow, that seems unlikely.

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Nanda's Alarm Clock Not Only Runs Away From You, It Runs Away From eBay Too

from the wake-up-nanda dept

It looks like more tangible product companies are trying to pretend they can restrict what you do with legally purchased products post-sale (perhaps they're jealous of content companies). Case in point: my brother received the Nanda Clocky as a gift awhile back -- it's a pretty novel alarm clock, when it goes off, its wheels turn on, and it jumps off your dresser, forcing you to climb out of bed to turn it off. Since he already had an alarm clock that worked for him, he decided to sell it on eBay. A few days before his auction was supposed to close, he got a notice that his listing was removed for a "Trademark Violation - Unauthorized Item." Yes, for a legitimately owned product. The email stated:

"Nanda Home Inc. is the owner of the intellectual property rights pertaining to these listings. By listing the 'Clocky' product you are in serious violation of the company's rights. Additionally, Nanda Home does not permit the re-sale of any of their brand product on eBay. There are no authorized Nanda Home re-sellers on eBay. If you continue to list our items, further legal action may be taken."

Clearly, Nanda has a gross misunderstanding of the right of people to re-sell their own property. While it's true that it is against the law to sell counterfeit copies of a product, re-selling your own goods and representing them as "real" is completely within the bounds of the law, and eBay policy. To make matters worse, the condescending tone of the email also suggests that:

"You may need to take a tutorial. The next time you sell, you may be asked to take the tutorial, if it's required. Once you've completed the tutorial successfully, please review your account status for any other possible concerns. If there are no other issues, you should be able to sell again."

Or, perhaps Nanda and eBay should take a tutorial on the right of first sale. In the aforementioned tutorial, eBay clearly understands the right to re-sell (in fact, a huge part of its business relies upon this fact). Yet, to make matters worse under eBay policy it's still a laborious process to get the item relisted -- even with the bogus takedown notice. As a seller of an incorrectly taken down Clocky listing, you have to contact Nanda and have them specifically authorize your product to be re-listed. Yes, even though it's Nanda who issued the incorrect takedown in the first place. So much for frictionless commerce.

The even bigger problem is in the process in which such listing takedowns are handled. Under the guise of rooting out counterfeit products, Nanda is able to unfairly reduce the number of its own secondhand goods in the marketplace. Other manufacturers have tried to do this in the past for everything from shampoo to radar detectors. And, much like the DMCA process, this "guilty until proven innocent" approach ultimately hurts the consumer, who now has unfairly reduced access to many products that were to be sold completely legally.

That said, my brother followed the eBay process to get his Clocky relisted. They sent him an email apologizing for their error and authorizing him to relist, which he did. Guess what? In an effort to punctuate how ridiculous this policy is, one day later, he got an email, "Trademark Violation - Unauthorized Item."

Anyone want to buy a Clocky?

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Eolas Is Baaaaaaaaack; And It's Suing Everyone Over Embeddable Web Widgets

from the because-otherwise... dept

Well, here we go again. As you may recall, Eolas is a company that claimed to hold a patent (5,838,906) on browser plugins. The company sued Microsoft, and a long drawn-out battle ensued. Even though web inventor Tim Berners-Lee presented prior art and asked the USPTO to invalidate Eolas' ridiculously broad and obvious patent, the USPTO eventually upheld the patent (after initially rejecting claims). Even as Microsoft began presenting evidence that it actually had made use of the technology in question before Eolas applied for its patent, losses in the courts and the Supreme Court's refusal to hear the case eventually resulted in Microsoft agreeing to settle rather than continue to fight.

Since then (two years ago), plenty of people have been waiting for the other shoe to drop, concerning Eolas' plans to sue others. Now we know why it waited. It's now received a new patent -- a continuation patent, which is often used to abuse the patent system by putting forth a broad patent, then filing for continuations to make changes that let an earlier "invention" cover technologies that later become popular. In this case, the new patent (7,599,985), which basically just extends the earlier patent on browser plugins, and extends it to javascript widgets. Yes, those embeddable widgets used all over the web? It appears that Eolas thinks that those are infringing and everyone should pay up.

The new lawsuit has been filed against Adobe, Amazon, Apple, Blockbuster, Citigroup, eBay, Frito-Lay, Go Daddy, Google, J.C. Penney, JPMorgan Chase, Office Depot, Perot Systems, Playboy Enterprises, Staples, Sun, Texas Instruments, Yahoo, and YouTube. Apparently, starting small isn't part of the plan. Not surprisingly, Eolas filed in Eastern Texas using McKool Smith -- one of the most popular law firms representing patent holding firms in East Texas.

I am honestly curious how patent system defenders, who are also programmers, can defend this. I'm sure non-programmers will claim that the patent is valid, but I can't imagine how anyone who has any knowledge of basic programming principles can claim that such a patent is valid. In the meantime, tons of companies doing an incredibly basic thing on the web will now have to waste millions of dollars fighting a ridiculous patent lawsuit. How is this promoting innovation in any way shape or form?

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Skype Founders Claim eBay No Longer Has A Right To Skype's Core Tech

from the this-is-going-to-get-messy dept

As you know, eBay bought Skype for a ton of money a few years back, without having any real plan for what to do with it. There were no synergies between the two, and about the best that can be said for eBay's ownership of Skype is that they didn't kill it (though, frankly, the new UI is so bad, it makes me wonder what they were thinking) and let it continue to grow organically. Earlier this year, eBay finally announced plans to spin off Skype. Fair enough. It can probably do a lot more outside of eBay than from within. However, it turns out that there may be a bit of a legal hitch, as Skype's founders claim that eBay/Skype no longer have the legal rights to Skype's underlying technology. Apparently, the claim is that Niklas Zennstrom and Janus Friis and a separate company they ran, Joltid, only licensed the underlying technology to eBay/Skype for a limited time -- and that deal has now concluded. The two companies are scheduled to fight this out in court.

There are a few interesting asides to all of this. First, it reminds me of how Zennstrom and Friis ended up in another lawsuit a few years back, also involving questions about licensing the core underlying technology of Skype. There's a lot of background here, and not all the details are clear (at all), but that original case involved the claim that Zennstrom and Friis used the same core underlying technology that they used to build Kazaa to build Skype. Way back, Zennstrom and Friis had created two operations: Kazaa and FastTrack, which created the underlying tech used in Kazaa. However, they also licensed FastTrack to a company called Streamcast, that made a product called Morpheus that competed with Kazaa in the file sharing space. Got that?

The folks at Streamcast insist that part of their contract with FastTrack was that they had a right of first refusal on buying the underlying technology. But then, all sorts of stuff happened, with Kazaa being sold off to a group in the South Pacific, but Zennstrom and Friis supposedly retaining some core technology which (Streamcast claims) they used to build Skype. Then, once Skype sold, Streamcast claimed that the whole thing was an elaborate shell game, but in selling the Skype underlying technology, Streamcast claimed that Zennstrom and Friis violated their agreement on having a right of first refusal on purchasing the technology.

Yet, now I'm left wondering if that original claim was true. If the current claim is that Joltid still "owns" the original technology and Skype/eBay only licensed it, then the technology itself might never have actually been sold (unless, we're talking about two separate core underlying technologies... which is possible).

Still... the bigger question? How the hell did eBay make a deal and not make sure it had either purchased (entirely) the core underlying technology or had a guaranteed perpetual license that couldn't be revoked? The eBay Skype purchase was bad enough already. Could it be even more ridiculous in that eBay didn't even properly purchase the technology in question? It seems preposterous to believe that a company could screw up an acquisition that monumentally, so you have to wonder if it's actually true.

In the meantime, since there are questions about how eBay can rebuild Skype's underlying core technology without violating the many patents in the space, it makes you wonder if eBay may be forced to simply buy someone else's technology. Maybe it's time to call up the Gizmo Project (which has built a very Skype-like product) to see what they're up to these days. Though, can you imagine eBay needing to buy another company just to power Skype so it can be spun off again? Yikes!

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Using Creative Fiction To Increase Value Of Trinkets On eBay

from the using-infinite-goods... dept

When we talk about understanding how to embrace the economics of infinite goods, one of the key points I've tried to make is that every product is a bundle of scarce and infinite goods. That's a point that some people have a lot of trouble with at times, insisting that some people who create infinite goods have no scarcities to sell... and, conversely, that those who make scarce goods, sometimes have no infinite goods to give away with them. While it may be a bit more complicated to separate out the scarce and infinite goods, it doesn't mean they don't exist.

Parker writes in to point out a fascinating example. Apparently a group of fiction writers are experimenting with selling physical goods on eBay with fictional stories given away "free" in the description. The project is called Significant Objects, and involves a bunch of fiction writers purchasing random trinkets, and then coming up with a neat story to go with them. The post at io9 notes that some stories seem better than others at increasing the auction bids, but points out that: "If Rosenfeld's success is any indication, these authors may actually get paid more for short fiction on eBay than they would at most publications."

Again, some will incorrectly claim that we're saying that fiction writers should start selling crap on eBay, but that's not it at all. This is just one (fun) example of many of content creators smartly using infinite goods (the stories) to make a scarce good (the trinket) more valuable, and putting in place a business model to profit from it. Once again, we learn that creativity knows no bounds, not just in creating content, but in playing around with new business models.

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L'Oreal Keeps Trying: Appeals French Ruling Against eBay

from the can't-stop dept

It appears that L'Oreal just refuses to give up. The company has sued eBay in a bunch of different countries trying to get a court somewhere to admit that eBay is somehow liable for actions of its users. To date, it's been a clean shutout against L'Oreal, who has lost cases in Belgium, the UK and France (I believe cases are still pending in Germany and Spain, though it's hard to keep up). The ruling in France was the biggest surprise, given that French courts have ruled the other way in the past. Given that, it looks like L'Oreal isn't done yet on its home turf, as it's appealing the ruling in France. At some point, one would hope that L'Oreal would realize that going after eBay is targeting the wrong party, but it appears that no one at L'Oreal seems all that interested in actually understanding the issues, and wants to see how many shots it can get at making eBay pay up.

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Retail Stores Still Trying To Blame eBay For Shoplifting

from the seriously? dept

Just as the record labels like to blame file sharing for their own business model problems, big retailers have been trying to blame eBay for all sorts of their problems for years. Last summer, the National Retail Federation (NRF), who represents the lobbying interests of big retail stores, started peddling a patently ridiculous line that using eBay led to crime. Seriously. They claimed that people got so addicted to selling stuff on eBay, once they ran out of their own things to sell, they would start stealing. Why even paraphrase it? Let's use their words:

"Thieves often tell the same disturbing story: they begin legitimately selling product on eBay and then become hooked by its addictive qualities, the anonymity it provides and the ease with which they gain exposure to millions of customers. When they run out of legitimate merchandise, they begin to steal intermittently, many times for the first time in their life, so they can continue selling online. The thefts then begin to spiral out of control and before they know it they quit their jobs, are recruiting accomplices and are crossing states lines to steal, all so they can support and perpetuate their online selling habit."

The problem, of course, is that this is complete hogwash. They presented no evidence whatsoever on this, and the actual stats on retail theft showed two things: first, retail theft has been on the decline for years and, two, that most retail theft is due to insiders, not shoplifters. So, if the retailers really wanted to stop theft, they should invest in better security against insiders. Yet, when asked why they didn't do this, a representative claimed that it didn't make any sense to make their employees into police officers. Yet it does make sense to pass draconian laws against eBay?

The truth is that the retailers aren't scared about eBay leading to shoplifting. They're scared about eBay, period. And they want to pass any laws to hurt eBay.

Of course, when presented with the fact that their claims were ludicrous, the NRF refused to back down, insisting its statements were accurate -- not in telling the actual truth, but in "reflecting the sentiments of many retailers that we work with." Seriously.

And, of course, politicians don't bother with fact, either, so the NRF was able to push legislation specifically designed to harm eBay and other online retailers, by adding all sorts of restrictions and liability over what can be sold through those sites. Of course, the NRF still has no evidence to back up its claims... so it looks like it's decided to try to manufacture some.

It recently came out with a report that pretends to show evidence that eBay leads to shoplifting. What's the data? Well, the NRF asked its own members what they thought the percentage of "new in box" merchandise for sale on eBay was stolen, and those members said they thought it was 50%. That's not evidence. That's just "reflecting" the highly biased "sentiments" of the NRF's members. As the NetChoice link above shows, there are lots of other problems with the NRF's position:

• Despite retailers' claims that theft is getting worse, nearly 6 in 10 retailers say they now spend less on loss prevention compared to last year. Yet while cutting spending on loss prevention, these same retailers doubled their spending on lobbying over the last three years, according to the Center for Responsive Politics. And they are lobbying for new laws to restrict competition from online sellers.
• A leading loss prevention consultant told retailers that over 2/3 of all store shrink is preventable, mostly by improving business practices, according to Larry Miller, Director of National Retail Research Group.
• Retail theft is not being caused by the Internet. According to the NRF's survey, retailers don’t identify stolen goods online any more than in traditional places like street corners, swap meets, and pawn shops.
• The NRF says that criminals use online marketplaces because they are anonymous, but these sites know exactly who the seller is, and disclose all that data to law enforcement officials whenever they ask. The truth is, an online auction is the last place a criminal would try to hide the sale of stolen goods.
• The NRF claims that online sellers "threaten the health and safety of innocent consumers", yet Rite Aid, CVS, Target, and Walgreens have paid millions in fines for selling expired products--often by putting stickers over the expiration dates.
• Overall, there is no evidence that organized retail crime has actually gone up -- the study only asks retailers whether they think it has increased. And that perception has only increased over the last two years -- concurrent with the worst economic downturn since the Great Depression. Isn't it much more likely that any increase in store theft may be a result of employees and consumers desperate to make ends meet?

That first bullet point, of course, is the most telling of all. While all of the evidence points to the fact that its insiders who cause the majority of any problem, rather than spending on dealing with that, they've massively increased their lobbying spend to try to craft anti-eBay laws.

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eBay Finally Realizes That No One Is Interested In Voice Communication With Others During An Online Auction

from the about-time dept

When eBay first bought Skype we were among the many, many, many people left scratching their heads wondering where the supposed "synergies" were. We were told two things. First, that Skype had many users in China who would now suddenly start using eBay for auctions. Why? No one knows. In reality it had almost no effect. Just because you make calls via a software program it doesn't make you any more interested in doing online auctions through its parent company, apparently. Second, it would now allow buyers and sellers to communicate by voice. But why would they want to? Sure, maybe in a very rare case it might be helpful, but one of the advantages of an online auction system like eBay is that you don't need to actually talk to the other party. And if it was that important to talk, the buyer and seller could just agree to use Skype on their own without eBay spending billions. And, in fact, studies showed that this "feature" wasn't wanted by most eBay users.

But, still, in an effort to show that there really (no, really, really!) were some synergies, eBay integrated Skype into online auctions. Of course, now that eBay has finally admitted that there really were no synergies, taken a huge writedown on the investment and is looking to spin off Skype, the company is finally removing the integrated Skype buttons on auctions, and are even admitting that the company is involved "in an effort to remove features with limited buyer and seller usage." Was it really that hard to recognize how little synergies there were before spending multiple billions of dollars?

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Store Payment Info In Your Online Store? Watch Out For Patent Infringement Lawsuits

from the pay-now dept

Bill Squier alerts us to the news that a bunch of companies have been sued for daring to store consumer payment information and allow either stored value payments or one-click payments on their site. The article linked here focuses on Apple as a defendant, and notes 14 other companies were sued as well, but in researching this, I found that Joe Mullin actually wrote about another batch of companies (20 of them) that were sued back in April. The earlier lawsuit included Google, Wal-Mart, Bank of America, Capital One, JP Morgan Chase, Mastercard, Visa, Vivendi, Disney and Western Union among others. The more recent lawsuit has (as mentioned) Apple, Best Buy, Amazon, American Express, Barnes & Noble, Citigroup and eBay among others. So... basically any online e-commerce site, credit card company or big bank.

As for the patents in question, they're all a variation on a "method and apparatus for conducting electronic commerce transactions using electronic tokens." The specific patents are 7,376,621, 7,249,099, 7,328,189 and 7,177,838. Reading through the claims, this seems like an incredibly typical online system for storing payment info and seeing if the person can actually pay. Since the patent system defenders among our readers get quite upset whenever I say something seems "obvious" to me, let's flip this around. Can anyone explain how these concepts were not obvious at the time of filing?

Not surprisingly, the cases have been filed in Marshall, Texas... and as Joe Mullin figured out, the guy who is running "Actus" is a lawyer known for representing some infamous patent hoarding companies. He also discovered that the lawyer representing Actus in these lawsuits appears to share an office (or at least the same address) with the son (who is also a patent attorney) of the judge handling the case. At some point, do people start questioning whether or not there's a conflict of interest there?

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L'Oreal Loses To eBay In The UK This Time... Where Else Will It Try?

from the if-you-fail...-just-sue-elsewhere dept

You may recall that L'Oreal has been on an incredibly misguided legal campaign against eBay, blaming the company for the fact that some of its users are selling fake L'Oreal products on the site. Rather than go after the actual counterfeiters, L'Oreal insists that eBay's at fault. After losing its lawsuit in Belgium last summer, the company filed nearly identical lawsuits in the UK, France, Germany and Spain, hoping that somewhere one of those courts would side with it. So far, it's not looking good. Two weeks back, even France sided with eBay, even though it had ruled otherwise in similar cases. And now comes the news that late last week, the UK sided with eBay as well. At some point, will L'Oreal finally realize that maybe it's barking up the wrong tree?

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Good Surprise: French Court Actually Sides With eBay On Counterfeiting Liability

from the getting-it-right dept

While US courts have generally been good about recognizing that eBay is not liable for eBay users selling counterfeit goods on the site, France in the past had gotten the story backwards, saying that eBay was liable, even though the actions were by its users, not by eBay itself. However, in a rather surprising move, a French court has actually sided with eBay against L'Oreal in a similar case. This is a surprise -- but a good one. This is L'Oreal's second loss in such cases against eBay. It lost another such case in nearby Belgium -- but (of course) has also filed similar lawsuits around the globe, hoping that at least one of those courts will side with it over eBay. Hopefully, all of them take notice of how both Belgium and France have ruled, and recognize that this is not eBay's liability.

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Troubling Court Ruling: Company Not Allowed To Resell Radar Detectors Online

from the no-first-sale dept

Over the years, we've had plenty of stories about companies trying to limit the ability of resellers to sell their products online, with companies claiming that reselling shampoo or cosmetics on eBay is somehow illegal because of a contract the wholesaler made with its own resellers. Usually these lawsuits don't get very far. Whatever agreement the wholesaler and the reseller had, the eventual seller online usually wasn't a party to those agreements and isn't bound by them -- and (reasonably) the courts recognize that you shouldn't be barred from reselling a product you legally purchased (that whole first sale thing).

However, there are some exceptions, and Eric Goldman points us to the latest one. A reseller of radar detectors has effectively been barred from selling a certain brand on eBay, claiming that it was trademark infringement. But what about those first sale rights? Well, apparently this case gets around them by claiming that the product being resold by this company Midwest Inventory Distribution is a different product, because it doesn't come with the same warranty (Midwest offers its own warranty and the original company, Beltronics, refuses to honor warranties on these resold radar detectors). The court also seemed to have problems with the fact that Midwest didn't properly "disclose" this information, even though every auction stated clearly that Midwest offered its own warranty and Beltronics wouldn't provide any warranty coverage.

As Goldman notes, this seems based on some questionable theories, and conceivably could allow companies to skirt around first sale rules, by claiming that anyone reselling their products online are engaging in trademark infringement, because the "warranties" on the products are different -- even if the products themselves are really identical. As Goldman writes:

The net result then is that eBay buyers willing to pay a discount for an identical radar detector but with only Midwest's warranty instead of Beltronics' won't get that choice. Instead, they get the pleasure of buying at the minimum resale price set by Beltronics.

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L'Oreal Looks For Friendlier Locales In Its Suits Against eBay

from the you-can-even-shop-for-jurisdictions-easily-online dept

US courts have generally recognized that eBay isn't liable for the actions of people who use its site to sell counterfeit goods, though a recent decision went the other way. This situation reflects the lack of uniformity around the world in this type of case: for instance, eBay was found liable in France, but was not in Belgium. In the Belgian case, eBay was sued by cosmetics maker L'Oreal, but the company hasn't let the ruling slow it down, as it's now filed a similar suit in the UK. It's also sued eBay in France, Germany and Spain -- which could lead one to believe that it's jurisdiction shopping, simply filing suits in many different countries and seeing what sticks, with the hopes that victory in one place will force eBay to play ball worldwide. The issue of eBay's lack of liability as a platform provider remains an important one, but the problem of international jurisdiction shopping remains a massive one for companies online.

Carlo Longino is an expert at the Insight Community. To get insight and analysis from Carlo Longino and other experts on challenges your company faces, click here.

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Swedish Indie Band Release Only One Copy Of Their Latest Song Via eBay Art Project

from the it's-the-souvenir dept

Sweden is home, of course, to the folks who run The Pirate Bay, but it's also the home of numerous indie bands and indie labels that are doing some really interesting experiments that focus on embracing the opportunities and possibilities presented by technology, rather than fighting against it all. Dan Sellberg writes in to alert us to an amusing experiment by the band Bob Hund, who is releasing a new song, called Fantastiskt, but they're doing so by selling the only copy in existence of the song on eBay as an art project:

"Fantastiskt" will be sold and delivered as an art piece comprising; the original master dubplate vinyl (the only existing copy) mounted on a real working turntable with cover art, song lyrics and monogram etched onto the lid by the artist Martin Kann.

The publisher insists that this will be the only release of this single. Talk about taking "scarcity" to a different level... Obviously, this is something of a publicity stunt, but it's not a bad one.

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Is eBay Warming Up The Skype Billion-Dollar Buyout Plan?

from the round-two dept

Back in 2005, we marveled at the success that Skype backers had in talking up the price of the company, eventually suckering convincing eBay to put together a $4 billion deal for it. This was what we dubbed the "Skype Billion-Dollar Buyout Plan" in which companies used press hype to create valuations far above their actual worth (see YouTube and Facebook for a couple of examples). Of course, what eBay was never really clear on was how it planned to make money from Skype, and it later went back and forth on whether it had given up on looking for the mythical "synergies" between Skype and its core auction business. Last week, eBay's CEO conceded that those synergies were "minimal" -- leading to more speculation that eBay might spin Skype off.

And thus the cycle begins again, with a figure of $900 million to $1.2 billion tossed out there as a potential starting point for the second version of the Skype Billion-Dollar Buyout Plan. What's interesting is that just like four years ago, Skype's financials are murky, as Om Malik points out. The company also still faces the same big problem: monetization. As Skype gets bigger, that problem could become even more difficult. After all, if Skype continues to garner more and more users, more and more calls will shift from the paid SkypeOut service to free Skype-to-Skype calls. Skype is said to be profitable (although there's no indication of how profitable), but it seems pretty clear that it hasn't been the runaway success that would have justified its $4 billion price tag. While it's possible that any current sale could carry a more realistic price, somehow we imagine that eBay will try to use the same tactic that drove up its price for Skype to drive up the next buyer's price.

Carlo Longino is an expert at the Insight Community. To get insight and analysis from Carlo Longino and other experts on challenges your company faces, click here.

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Monster Mini Golf Using eBay To Fight Monster Cable's Trademark Lawsuit

from the good-for-them dept

Monster Cable is famously litigious over its trademark -- suing just about anyone who uses the name "Monster" as a part of their corporate offering. Most of these lawsuits are bogus -- as trademark only covers the specific areas of business you're in, and doesn't give you complete control over the name. Thus, if you make a salt lick for deer called Monster Deer Block, you shouldn't have to worry about a lawsuit from Monster Cable... but you'd still get one, as pretty much everyone from the TV show Monster Garage to the Boston Red Sox (for the "Monster seats" on top of the "Green Monster" wall in left field) have found out.

Earlier this year, the company went after a small mini-golf operation in California called Monster Mini Golf, which we doubted anyone would confuse with the cable makers. Apparently, that wasn't the only Monster Mini Golf that Monster's lawyers were busy hassling. Chris Collett alerts us to the fact that a Rhode Island based Monster Mini Golf is also facing a lawsuit, and asking for help. But, there's an interesting twist here. The company is pleading it's case on eBay, and asking people to contribute to its defense fund via eBay. I'm not sure if this goes against eBay's terms of service, though I hope it doesn't. (Update: It did go against eBay's ToS, so it was taken down -- but the company has put up a new auction for a coupon at Monster Mini Golf which will serve the same purpose):

BUT...one man is destined to crush what we have built. He is the founder of Monster Cable Inc. (a company that makes Audio cables) and he's suing us for "Trademark Infringement".

In a nutshell, trademark infringement is based solely on "Likelihood of Confusion", or essentially, "could the average consumer be confused between the two?". The answer is no, as decided by the Patent and Trademark Office when they granted our trademarks, but Monster Cable Inc filed an opposition against that decision, and sued us.

To this day, this one man has opposed approx 400 companies...and it doesn't look like he EVER intends to stop. This is the true meaning of Corporate Bully.

Their tactic is to run the smaller companies out of money, and force them into a settlement where they surrender their name to Monster Cable Inc, who then licenses it back to them for a fee. Yes, so then we would be paying him for a concept and business we created and have worked very hard for! It is essentially extortion, but sadly, it is cheaper than going to trial, which can be crippling to small businesses like ours.

Unlike the 414 companies he has forced into settlement by bleeding them dry.... we have decided to continue on and fight the good fight. We have chosen to stand up for anyone who has ever been bullied, picked on, abused, or otherwise forced into an unfair or unjust situation by a bigger, stronger, (or in this case, richer) opponent.

Each small business that was forced to sign over their name is one more brick in the massive Monster Cable Inc wall, held together by the blood of those crushed beneath their corporate wheels. It is very very sad.

So far our legal fees are well over $100,000. (And counting) and will likely reach $250,000 when all is said and done. No wonder why 400 companies have waived the white flag!! 250K is the cost of "Winning"!! We need your help, we cannot afford to do it alone. Wondering if this is real or not...just google Monster Mini Golf and Cable. Or visit audioholics web site and you will also read about many other cases there as well.

What we are selling is a "Piece" of our legal defense and a small slice of Justice to you for $1. Yep, just a buck....and as Sally Struthers once said, that's less than a cup of coffee! Geez...at Starbucks, it wouldn't even buy you that!

In return for your gracious purchase, you will receive a heartfelt "Thank You" from us and the knowledge that you have helped defeat a corporate bully who has been abusing the legal system for years! And, if you print your paypal receipt and take it to any Monster Mini Golf location, we'll take $2 Off a round of Mini Golf! (that's double your money back! Reg price for 18 holes is between $5.50-$7.50)

This is interesting, as I hadn't heard that Monster Cable was apparently selling the Monster name back to people it bullied. That's even more obnoxious -- and a clear abuse of trademark law. Also, it's been a while since we've seen companies using eBay auctions for PR, so maybe that's making a comeback. Either way, if you want to help stop one of the biggest trademark bullies out there, maybe try to buy a share of the legal defenses, and hope eBay doesn't take the auction down.

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eBay Has To Turn Over Info On Canadian PowerSellers

from the can't-get-off-that-easy dept

Michael Geist points us to the news that a Canadian court has told eBay Canada that it needs to cough up info on Canadian PowerSellers. The case involves attempts by the Canadian government to determine if eBay PowerSellers are underreporting earnings on their taxes. Canadian tax officials had asked eBay Canada to hand over data on various Canadian PowerSellers, but the company refused, noting that the info was actually held by eBay in the US, and thus the data was not subject to the Canada Revenue Agency's jurisdiction. The court disagreed, noting that eBay Canada had easy access to the data at a "click of the mouse." For the most part, this does make sense, though it does raise some questions about jurisdictions. Perhaps this is a special case, due to the close relationship between eBay and eBay Canada, but it still is a bit worrisome that a Canadian court would rule that info on an American server is subject to Canadian laws. You could see that coming back up in a bad way in the future.

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Microsoft Steps Up Program To Bribe Users To Search

from the pay-up dept

Apparently Microsoft's ongoing program to bribe users to use its search engine wasn't getting enough attention, and the company seems to be upping the ante. At least for a little while, it's now giving 25% cash back on eBay purchases (limited to $200). At some point, you really have to wonder how well this program really works. Sure, some folks may use Microsoft's search to get the cashback (or to game the system), but will they keep it up when Microsoft isn't paying? That's not at all clear, and it seems likely that Microsoft could be paying out a lot more than it gets back in benefits.

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Sued For Libel Over eBay Feedback

from the truth-is-a-defense-against-libel... dept

There's been plenty of criticism over eBay's feedback system over the years, and recently the company famously stopped allowing sellers to give feedback, since many sellers were using it as a weapon to force buyers to give good feedback, or risk getting bad feedback themselves. However, the latest outrage over eBay's feedback system seems a bit silly. A seller in the UK is suing a buyer for libel for his eBay feedback.

In this case, the buyer bought a mobile phone, but was disappointed that the phone was beat up and not the model that was advertised. He complained to the seller, sent it back and asked for a refund -- which was given. However, he then posted feedback saying: "Item was scratched, chipped and not the model advertised on Mr Jones's eBay account." From the sound of things, this was accurate. The seller, unfortunately, seemed to think that because he refunded the purchase, that the feedback was now libelous. It's hard to see how he has much of a case (even in the UK where libel laws are much stricter). The feedback was accurate. The fact that the seller agreed to take back the phone and refund the difference doesn't change that.

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eBay Moves Closer To Forcing Users To Use PayPal

from the it's-good-to-be-the-king dept

You may recall earlier this year that eBay experimented with requiring customers to use eBay-owned PayPal for payments on eBay auctions down in Australia. However, public backlash, combined with government threats convinced eBay to hold off for the time being. However, folks over at Slashdot are noting that eBay has now changed its terms of service in the US to push more people towards using PayPal. Specifically it's no longer allowing checks or money orders for payments on most items, saying that electronic payments, merchant accounts or direct payment for in-person exchanges are the only options. However, as the Slashdot post notes, in the electronic payment space, eBay then blatantly says it will not allow Google or Amazon's payment programs to operate on eBay because they compete with eBay.

While eBay may be allowed to do this, it definitely seems like a good way to shoot itself in the foot. If customers don't want to use PayPal, they're simply going to bypass eBay entirely, and use an alternative. That not only cuts eBay out of the transaction, but also the listing fee. eBay tries to position this as being about making the experience better for both buyers and sellers, but that's clearly untrue. Instead, it seems like eBay is afraid to compete on the merits with its payment solution, knowing that many, many users are increasingly fed up with PayPal. Yet, rather than fix PayPal, the company's response is to ban the competition.

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