Filmmaker Allowed To Use The Name Rin Tin Tin To Describe Rin Tin Tin

from the only-after-a-fight dept

Looks like the courts got one right concerning a trademark claim involving famed movie dog Rin Tin Tin. It seems that some movie makers wanted to make a movie about Rin Tin Tin, which seemed reasonable enough. However, Rin Tin Tin Inc., a company that continues to breed "Rin Tin Tin dogs" for movies objected to the use of the name, saying that since they held the trademark on Rin Tin Tin, the movie was infringing. Thankfully, the judge disagreed, noting that the movie is about Rin Tin Tin, and thus was descriptive and a perfectly reasonable use of the name.

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What Kind Of Mickey Mouse (And Donald Duck) Lawsuits Are These?

from the what's-going-on-now? dept

Donald Duck is apparently pretty busy on the trademark law front. On the same day, I heard about two separate legal incidents involving Donald Duck, which is just the sort of coincidence that can't be ignored. The first story, admittedly, is more bizarre than the second. It involves Mickey Mouse suing Donald Duck. Literally. It's got to be some sort of prank, but the lawsuit has actually been filed. The complaint is rather basic, with Mickey Mouse's lawyer Juan Abogado ("Abagado" apparently is the word for "lawyer" in Spanish.) stating simply:

COMES NOW Plaintiff, by and through undersigned counsel, and states:
1. This is an action arising under the Trademark Protection Act, 15 USC 78.
2. The Plaintiff is the owner of the trademark no. 0134148349208, (Walt Disney World patent).
3. The Defendant is a duck.

Donald Duck, represented by his lawyer, Pluto the Dog, Esq., quickly shot back:

1. Admitted.
2. Denied.
3. Admitted.

A quick search fails to turn up the trademark in question, though, I'll admit to not putting much effort into it.

The other case involving the same Donald Duck is a bit more bizarre. Reader Kevin Brody lets us know that the University Oregon has a stylized version of Donald Duck as its mascot, on license from Disney. Some students and fans of the University football team put together a song about how much they love the team. Great, right? Well, except that in the video they made, the Donald Duck-alike mascot makes a few appearances, and the school's marketing director flipped out and ordered them to edit out the duck, supposedly because Disney either was, or could get, upset about the usage. As the author of the column notes, this is ridiculous. It's just a few guys having fun and does no damage to the trademark at all. It's unclear if Disney actually got involved here, and my guess is that this is more the university stepping up before Disney said anything to protect itself. Given Disney's aggressive enforcement of its copyrights and trademarks in the past, perhaps this isn't a huge surprise.

Still, with Donald Duck being summoned by court clerk "Goofy" to the Florida courtroom where Mickey is suing, you have to wonder if he'll be able to make it back in time for the the Oregon Ducks game...

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Intel Lawyers Again Go Too Far In Trademark Bullying

from the back-it-down dept

Chip giant Intel has a bit of a reputation for being a trademark bully at times, threatening or suing many companies just for having "intel" in their name somewhere -- including a travel agency and a jeans company. Now, before anyone brings it up, yes, as a trademark holder the law requires you to enforce your trademark against infringement, lest it become considered "generic" (such as xerox machines, kleenex tissues, aspirin and other brand names that became generic). But, the key in all of those generic situations was that the use was applied to things that directly competed with the original brand's products. People referred to other tissues as "kleenex" and it stuck. Intel's lawyers seem to go out of their way to find potential infringement where there obviously is none at all.

Paul Alan Levy alerts us to the latest such case, where Intel has sued the operators of the Mexico Watch newsletter, because its domain is LatinIntel.com. Of course, the reason for that is that it is using the commonly accepted abbreviation of "intel" as short for "intelligence." It's common shorthand, especially within government circles, to refer to gathered intelligence as simply "intel." The owners of the site explained this to Intel, and in return were given a boilerplate explanation about trademark law, insisting that since Intel's trademark is so valuable, it still has to stop others from using it -- even if they're in a totally different business, which is an interesting interpretation of trademark law, and one not supported by the courts in most cases.

More importantly, no one is going to look at LatinIntel.com and confuse it for the world's largest computer chip maker. No one is going to look at that site and wonder how come they can't order a Centrino processor. There's simply no confusion at all. Even worse, it appears that Intel's lawyers dragged out this situation far too long. They first contacted the site back in 2007, and the site's owner responded with a clear explanation of why the name was not infringing. Since then, there have been periodic bursts of contact from different Intel lawyers (it apparently seems to change each time), followed by months of silence, before a new group of lawyers starts pestering the site again. Finally, after more than two years of this back and forth, Intel sued Mexico Watch, even though it's not even close to competitive and any "moron in a hurry" (as the popular trademark test notes) would clearly know the difference between a site about Mexican politics and a company selling microprocessors.

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Company Trademarks The Pirate Bay Logo

from the missing-the-point dept

Quite a few people have pointed to the story about a Swedish company that has trademarked The Pirate Bay logo, and plans to sell USB keys with the logo included. The company claims that this is fine because The Pirate Bay had not registered the trademark itself. In the meantime, some folks associated with The Pirate Bay are saying they're going to try to overturn the ruling.

I don't know how Swedish trademark law works, but at least in the US there is a concept of a "common law trademark," which is supposed to prevent others from registering a mark on a brand that someone else is using -- even if they haven't registered it. It would seem like quite a silly trademark law if the Swedish trademark law doesn't include anything like that.

As for those who think it's ironic or even hypocritical that The Pirate Bay guys are somewhat bothered by this, you need to understand a few things. First, they clearly state that they have no problem with anyone doing anything else with The Pirate Bay logo. So, if this company just wanted to sell those USB keys by itself, it could do so. The issue they have is with this company "locking up" the trademark so others can't use it. That seems entirely in support with what they stand for.

Separately, it's worth pointing out (yet again, because some people still get confused by this) that trademarks are wholly different beasts than copyrights or patents. Trademarks are not about protectionism, but about preventing consumer confusion over who actually made or offers a specific product. It's a very different concept.

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FreeCreditReport Wins Over 1,000 Domain Names In Dispute Process

from the trademark-control dept

It's quite common for various trademark holders to go through the UDRP domain dispute process to get back domains held by cybersquatters. Still, it's quite impressive to hear that FreeCreditReport.com was able to get 1,017 separate domain names in a single dispute (found via Slashdot) apparently by using some sort of software that identified all the domains. The company that held the domain names argued, in part, that the term "free credit report" should be seen as generic, not a specific trademark, but the arbitration board simply said that since the USPTO had granted FreeCreditReport.com with a trademark, that the trademark was solid -- and thus most domain names that included those words could be turned over.

This does raise some questions however -- since we've seen plenty of other cases where domains that included trademarked terms, but which would not be confusing to users (such as "trademarknamesucks.com"), have been allowed to be used by the original registrant, rather than handed over to the trademark holder. It's unclear, in this case, if some of those domains were like that -- or if they were all pure squatter domains. Still, it's quite an impressive haul by FCR.

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iPhone App Makers Get Edgy Over Bogus Edge Trademark

from the edge-edge-edge-edge dept

In the past, we've discussed how some guy named Tim Langdell seems to think that because he once had a game that had the word "edge" in the title and got a trademark for it (even though he hasn't released a game in about fifteen years) that he can go after anyone who uses the word edge in a video game title. EA is even working on getting Langdell's trademark dumped. In the meantime, he just keeps going with it, threatening plenty of folks. It appears that some game developers are getting sick of this and have decided to fight back. William Jackson alerts us to the news that game developers are now purposely adding the word "edge" to their game titles in solidarity with those threatened by Langdell. I wonder if that will get the message across?

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Can A Moron Driving A Porsche Recognize The Difference Between The Car And A Pair Of Crocs?

from the that's-for-the-judge-to-determine dept

Reader Sceptic alerts us to a new lawsuit that seems perfect (on various levels) for the old "moron in a hurry" trademark test. Automaker Porsche -- for drivers in a hurry -- has sent a cease-and-desist letter to footwear maker Crocs, claiming that the company's use of "Cayman" for one of its shoes is a violation of Porche's trademark on the same term. As the folks at Footnoted point out:

Now few people would probably confuse Crocs Cayman sandal for the Porsche Cayman. After all, one sells for $29.99 and the other starts at $51,000.

Of course, this is apparently taking place in Germany, and (tragically) the moron in a hurry test (as far as we know) has still only been used in the UK, the US and Canada. But here's a perfect opportunity for its introduction (in a hurry) in Germany.

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Why Should You Have To Pay A Fee To Paint A Picture Of A Building?

from the royalties-gone-mad dept

This one's a bit old, but I'm cleaning out some older posts I wanted to write up. Sent in by johnjac, apparently the University of Texas charges a local painter a fee for selling paintings of its main building, the Texas Tower. While the Freakonomics post delves into whether this should be a flat fee or a percentage, shouldn't the actual question be why should the painter have to pay a fee at all?

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An 'Aha Moment' About Ridiculous Trademarks, As Oprah And Mutual Of Omaha Fight Over 'Aha Moment'

from the aha! dept

Reader Trails writes in with news of the latest ridiculousness from the world of trademark law, where Oprah Winfrey's Harpo Productions and insurance giant Mutual of Omaha got into a bit of a spat over the term "aha moment," with both companies claiming rights over the phrase. Apparently Winfrey regularly uses the phrase "an aha moment" on her television program. Mutual of Omaha came up with a marketing campaign around "official sponsor of the aha moment" and attempted to trademark the phrase. Oprah/Harpo didn't object to the original trademark application, though they later found out about it and legal proceedings began. While none of the press reports seem to point this out, it appears that Oprah had not trademarked the phrase herself, though, she did finally apply for the trademark on "aha moment" in June of this year (nearly a year after Mutual of Omaha's application. The two sides have now "settled," but this conceivably means that anyone else who uses the phrase in areas that potentially compete with Oprah or Mutual of Omaha might find themselves in trouble as well. Of course, it's also worth noting that a graphics company in Florida appears to have filed for a trademark on "Aha moment" when used on clothing well before either Oprah or Mutual of Omaha.

Either way, this should be yet another "aha moment" of how companies are using things like trademark law to tie up and limit language, which is not (at all) it's original intended purpose.

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Jenzabar Says That Google Blog Post Is 'Hearsay', Not Official Google Statement

from the good-luck-with-that dept

Last month, we wrote about the highly troubling efforts by the head of software firm Jenzabar to abuse trademark law to stifle criticism of that company's founder and CEO (who, earlier in her life, was famous for "leading" part of the student uprising in Tiananmen Square). She was upset at the makers of a documentary film that was somewhat critical of her, and she tried to use trademark law against them, after an attempt at defamation failed. There is simply no trademark violation at all in this situation... but it is a company with lots of cash suing some independent documentary film makers, so it has all the appearances of filing a lawsuit just to cause trouble for the filmmakers.

Our posts were based on some blog posts by Public Citizen, criticizing Jenzabar and its founder/CEO Ling Chai. Rather than recognizing that it's going too far, Jenzabar apparently decided to go on the attack. Public Citizen's Paul Alan Levy alerts us to the news that Chai and Jenzabar are now claiming that Public Citizen's blogging about the case is illegal.

Specifically, the complaint from Jenzabar is that Levy pointing out that Google has stated that it does not use metatags in its search algorithms is not admissible and will "cause prejudice," because it is not an official statement from Google. That, of course, is silly. Google has made it clear for a while that it doesn't use metatags, but this particular announcement came from Google's Matt Cutts (disclaimer: an acquaintance/friend of mine) and was on Google's official blog, and Matt regularly speaks for Google on these sorts of issues. Yet, Jenzabar claims that it's "hearsay." That seems like a pretty difficult position to take. Jenzabar really wants to keep insisting that Google uses metatags, even as Google is making clear it does not? And it wants to force the court to censor blog posts to keep living in that fantasy world? Good luck with that...

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Glenn Beck Not Allowed To Rape And Murder An Internet Meme

from the nice-try dept

Back in September, we wrote about Glenn Beck's misguided attempt to gain control over the domain name used as part of an internet meme that is critical of Glenn Beck, GlennBeckRapedAndMurderedAYoungGirlIn1990.com (it's a dead site now, keep reading). If you're unfamiliar with the meme, it's mocking a favorite tactic of various cable news talk show hosts, to "ask questions" that are accusatory in nature, whether or not there's any substance to back them up. Glenn Beck didn't accuse the site of defamation or anything, but filed a domain name complaint, saying that it violated his trademark. As we noted at the time, the trademark claim was really questionable -- and, of course, only served to draw more attention to the site and the internet meme.

The site brought on lawyer Marc Randazza who filed one of the most brilliant responses (pdf) to a legal threat that you'll ever see. It's quite amusing. Randazza takes the old "moron in a hurry" test up one level, using the "abject imbecile" test. And then there was this:

We are not here because the domain name could cause confusion. We do not have a declaration from the president of the international association of imbeciles that his members are blankly staring at the Respondent's website wondering "where did all the race baiting content go?" We are here because Mr. Beck wants Respondent's website shut down. He wants it shut down because Respondent's website makes a poignant and accurate satirical critique of Mr. Beck by parodying Beck's very rhetorical style. Beck's skin is too thin to take the criticism, so he wants the site down.

Apparently, Randazza's letter worked wonders. The WIPO Arbitration Panel has rejected the attempt to take the domain, saying that it was a legitimate use of Beck's name:

In the present context, this Panel considers that if Internet users view the disputed domain name in combination with a visit to Respondent's website, the "total effect" is that of political commentary by Respondent, capable of protection as political speech by the First Amendment under the Hustler Magazine standard. Respondent appears to the Panel to be engaged in a parody of the style or methodology that Respondent appears genuinely to believe is employed by Complainant in the provision of political commentary, and for that reason Respondent can be said to be making a political statement. This constitutes a legitimate non-commercial use of Complainant's mark under the Policy.

Either way, now that the site's owner has prevailed, he apparently feels he has made his point, and has agreed to voluntarily hand over the domain (pdf), along with an explanation in the First Amendment and how not to respond to internet memes:

It bears observing that by bringing the WIPO complaint, you took what was merely one small critique meme, in a sea of internet memes, and turned it into a super-meme. Then, in pressing forward (by not withdrawing the complaint and instead filing additional briefs), you turned the super-meme into an object lesson in First Amendment principles.

It also bears noting, in this matter and for the future, that you are entirely in control of whether or not you are the subject of this particular kind of criticism. I chose to criticize you using the well-tested method of satire because of its effectiveness. But, humor aside, your rhetorical style is no laughing matter. In this context of this WIPO case, you denigrated the letter of First Amendment law. In the context of your television show and your notoriety, you routinely and shamelessly denigrate the spirit of the First Amendment....

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Ferrari Doesn't Want Web Racing Simulation To Use Ferraris

from the fair-use? dept

Lincoln Braun writes "I play an online web game. BATracer which is designed to simulate a number of racing series including Formula 1, LeMans, A1 Grand Prix, Ferrari Challenge, and more. This week, however, the owner of the site received a legal notice from Ferrari, ordering a cease & desist from using Ferrari cars. BATracer has somewhere between 2000 and 3000 active users, most of whom arrived at the site because of Formula 1. The letter by Ferrari has really annoyed many of the most passionate fans and they have lost a lot of goodwill."

It looks like BATracer shut down for a bit before opening up again without Ferraris. Now, Ferrari has a big licensing business, but at some point you have to wonder if legal actions like this make any sense or if there's a reasonable fair use claim. In the case of team sports simulations, courts have ruled that name and stats are facts -- and not covered by intellectual property, so couldn't you say the same thing for car names and specifications? And while I could potentially see a trademark issue, it's not as if BATracer is actually "competing" in the same space as Ferrari. I can already hear the excuses about how Ferrari needs to keep its brand special and being seen in such a game might cheapen it -- but that's not the purpose of intellectual property law. Either way, it seems pretty dumb to piss off so many people even if many of them probably can't afford a Ferrari in real life (probably what the company is betting on). There may be some who can (or who will be able to someday), and pushing them away for no good reason can't help matters.

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Pennsylvania Supreme Court Strikes Down Ridiculously Overbroad Trademark Law

from the getting-it-right dept

Ima Fish writes "The Supreme Court in Pennsylvania struck down a state trademark law (pdf) which essentially criminalized any use of a trademark without permission of the trademark holder. There were no exceptions at all, including free speech rights.

The Opinion noted "that the use of the word 'Nike' on a sign at a protest rally, such as 'Nike uses sweatshop labor' would fall within the reach of the Trademark Counterfeiting Statute because the activity would involve the unauthorized use of a word or term used by another to identify goods or services."

The Court went farther and stated, "Taken to the extreme, even our use of the words 'Nike' and 'Penn State' in this opinion without the permission of the company or the university would fall under the current definition of a counterfeit mark. Clearly, the statute prohibits a substantial amount of protected speech."

It's nice to see courts get it right every so often. I wish it happened more.

There was also a concurring opinion and two separate dissenting opinions (all pdfs, of course). Definitely great to see the court get this right, but it makes you wonder what legislators were thinking when they put such a law in place.

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Trademark Claims: The Option Of Choice For Censoring Critics

from the get-to-it dept

Via Michael Scott, we learn about how the American Federation of Teachers (AFT) tried to shut down a blog critical of the group using a trademark claim. While the AFT eventually backed down, after pretty much everyone made it clear that it had no chance to win a trademark claim against a site that was clearly criticizing it, Ron Coleman makes the point that trademark is the "tort of choice for censors." I'd suggest that copyright isn't far behind, but it's really amazing how often trademark holders try to use trademark claims to censor any kind of speech they dislike about their mark. And even if the trademark claim has no chance of winning, it often doesn't matter to those who simply can't afford the time or the money to fight such claims.

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EFF Launches Takedown Hall Of Shame

from the who-will-be-inducted-next? dept

With so many organizations trying to use copyright and trademark law to take content offline, the EFF is announcing the launch of its new Takedown Hall Of Shame, highlighting "the most egregious examples of takedown abuse." You'll recognize the names on the list -- as every one of them we've written about here. Who knows if this will cause lawyers to think twice before issuing bogus takedowns (I doubt it), but at least it should shine some light on how widely copyright and trademark law are abused to stifle speech.

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Olympics Trademark Law Insanity: Officials Can Enter Homes, Issue $10,000 Fines

from the please,-make-it-stop dept

In the past, we've noted how much the Olympics loves to overreach with trademark claims, trying to prevent anyone from using any phrase or word associated with the Olympics without having to pay up. Amazingly -- and to the detriment of the people they're supposed to represent -- politicians all too often grant the Olympics extra special trademark laws that just apply to them. Reader Jesse lets us know of the latest insanity up in Vancouver, where special new "bylaws" let officers enter homes to remove unapproved "signage" while also granting them the ability to issue fines up to $10,000. There are already lawsuits filed about this, but at what point do politicians tell the Olympics "enough is enough?" Update In the comments, reader Brendan points out that Vancouver's police chief is insisting this is an exaggeration, saying:

Just as ridiculous in my opinion, is the charge that the VPD will enter homes to confiscate signage.

Once again, I would ask that those speaking on our behalf, regardless of your motives, please stop, or at least ask us.

The additional powers that the City has obtained are intended to control unauthorized marketing.

If normal processes, such as a warning, ticket or summons, do not convince a person to abide by a by-law, in extreme circumstances, a warrant to enter premises can be obtained.

We have been assured by City license inspectors that they will be focusing on "guerrilla marketing" efforts that are prominent, and near official venues.

They will not be focusing on signage that is a political or personal statement.

The VPD has no intention of entering the home of any Vancouver resident for a sign issue during the Games. We are not the sign police.

Okay... but that still does say that they could get a warrant to enter people's homes for marketing signage. Why, exactly, should that be allowed? On personal property, if someone puts up a "guerilla marketing" sign, shouldn't that be their right?

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Chamber Of Commerce Sues Yes Men; Someone Just Gave Protestors A Lot More Attention

from the a-lot-of-happy-yes-men dept

While we weren't sure that the EFF was correct in suggesting the Yes Men's fake U.S. Chamber of Commerce website was a parody, we did think that it was rather short-sighted of the CoC to try to takedown the site, since it would only serve to give the Yes Men and their anti-CoC campaign more attention. Apparently, the folks at the U.S. Chamber of Commerce still haven't quite figured this out. They've now gone a step further and are suing the Yes Men for trademark infringement. Again, the trademark claim is probably stronger than the original copyright claim, but this is a really dumb move. All the Yes Men want is more attention in their campaign against the CoC's stance on climate change, and you know what gets them a lot of attention? Getting sued. Of course, given how backwards the Chamber's views on intellectual property are, perhaps it's no surprise that they wouldn't realize how such a plan would backfire.

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SPARC No Fun At All; Threatens SparkFun

from the spark-up-the-lawyers dept

John Fenderson was the first of a few of you to send in a link (via Slashdot) to the story of how SPARC, the computer architecture company owned by Sun, is threatening SparkFun over trademark infringement claims. SparkFun is an electronics shop, which sells components and kits and the like. The two are pretty different. This whole situation apparently was "sparked" (heh heh) when SparkFun applied for its own trademark, at which point SPARC sought to block the trademark application. From there, they went on to sending a cease & desist. The folks at SparkFun do a nice job breaking down why the two marks are entirely different, and why even Sun employees seem to have no trouble understanding the difference between the two. This seems like yet another case of overly aggressive trademark enforcement, just because some lawyers feel the need to oppose anything that might conceivably be considered even close to similar.

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Monster Energy Drink Backs Down Due To Public Pressure; Vermonster Beer Lives On

from the but-what-about-the-others? dept

You may recall that we recently wrote about the effort by Hansen's drink company to stop a small Vermont brewery from offering Vermonster Beer, claiming that it infringed on the trademark they held for Monster Energy Drink (because any moron would confuse beer with an energy drink). That situation got a ton of publicity (all of it negative towards Monster Energy Drink and Hansens), and Brendan alerts us to the news that it looks like Hansen's has backed down. And the guy behind the Rock Art Brewery (maker of Vermonster) has put up an open letter with the timeline of events (pdf) -- thanking everyone for creating the public pressure that got Hansens to back down.

Of course, it looks like Hansens only backed down in this one instance. Yet, as we noted, Hansens appears to have contracted with notorious abuser of the trademark system, Continental Enterprises, who likes to send cease-and-desist letters to anyone even mentioning a trademark name. Just recently, beyond the whole Vermonster situation, Hanses -- via CE -- has gone after a beverage review site (which had a negative review of Monster Energy Drink) and an actor who was a movie monster.

Will Hansens call off Continental Enterprises from its abusive practices?

It's great that public pressure got the company to back down on Vermonster beer, but those other situations didn't get nearly as much attention.

Matt Nadeau, from the Rock Art Brewery is asking how we can continue to use the community that came together to help him to do more to protect other small businesses from the same thing. As a starting point, why not point them to these other abuses by Hansens and CE and get Hansens to back down? After that, it would be great to get people to recognize that we need serious trademark law reform that brings trademark law back to its intended purpose: acting as a consumer protection technique against appropriation and confusion, rather than what many believe it's become: a property right and a monopoly.

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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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