Hi everyone,
There's a lot to this story, but I'm going to condense it down to the finer points that will hopefully be enough for an answer.
Another Ebay and seller and myself both sell the same item.
This other seller has been making cracks about me in their auctions for the past year. Since the item in question is the ONLY item they sell, and I sell other things as well - they make comments like, "I don't sell OTHER things, like car parts, costumes, etc. - I ONLY sell <item>!" She never refers to me by name, so there wasn't much I could do. So I tried to make better statements in my auction that I have been selling on Ebay for 10 years (which is true), am a Powerseller with high feedback, "do not mistake us for imitators" "best quality" and other such statements. It really seemed we were both getting equal sales, so it wasn't that big of a deal to me.
A couple of weeks ago, I receive an email from the supposed "husband" of this seller. At the time, I was claiming I was an exclusive seller to one particular item they also offer (there are several styles of this item) - which, at the time, I thought was true. He informed me that they ALSO sell this same item (we both get them from a distributor) and that I couldn't say that. He also claimed to be an attorney and stated that I had copied several words and phrases from their auctions and that I should stop. He said his wife would spend $10,000 on a lawsuit just to prove a point, and I shouldn't "mess with her." He also said he had spoken to Ebay, and that THEY told him to contact me and instruct me to stop or "Ebay said they will remove you as a seller." Well, of course, that's baloney. Ebay doesn't do that. If you are in violation of an Ebay policy, they end the auction or dump you as a seller - simple as that. My guess is they tried that route first, and Ebay told them I wasn't in violation of any of their rules or policies, so he resorted to the threats. My answer? Nothing - I ignored the letter. I did, however, stop using "exclusive seller" since I knew now they offered the same item.
Yesterday, I get a NASTY email from the same guy, really mad because I "ignored him" the first time he contacted me, and now saying I have crossed a line. He says that his wife has been using the words "ultimate natural" to refer to her items for years, that they are copyrighted to them and that since I am now using those words, if I do not cease and desist using those words, they will sue me. They also said they had documented 9 individual phrases in my auctions that are identical to theirs. I found this intriguing since I wrote my OWN description! I printed out their ad and my own and compared. Yes, we both mention that we ship discretely, but the sentences are completely different. There were a few more places where we referenced similar things about the item, but there's only so much you CAN say about this item! 95% of the ad is significantly different.
I called the Bar Association in the guy's state, and they have no listing of this man's name as an attorney in the state of Arkansas. I also checked the U.S. Trademark office and did a search for "ultimate natural" and found nothing.
So I emailed the guy back, told him what I found out, that I could find no record of him being an attorney, nor a trademark registered to them, so until such time as they provided me with documentation that they owned a trademarked phrase or intellectual property that I was in violation of, I wasn't changing anything about my ads.
So I have a friend who is a trademark/patent attorney. I talked to him this morning, and he had me so confused and upset at the end of the conversation, I'm worse off than I started! He's working from the "big corporation" angle, I think, which neither of us are. He was made at me for sending the letter calling him on his "I'm an attorney cluff" and telling him I would not cease and desist. He says it sounded like I was admitting to copying him, which I was NOT! His final suggestion was for me to send him a note saying that I had sent the other email out of haste and frustration and for him to kindly forward any and all trademark and/or intellectual copyright documentation the he alleges I am in violation of in my ads and that I will adjust my ads accordingly to comply. I haven't heard anything back as of yet. Of course, if he had such documentation, he would have turned me over to VERO, I would suspect.
MY QUESTIONS!
1) My trademark attorney friend seemed to indicate that this guy could have a case if the "overall and look and feel" of my auction ads are similar to his. What does that mean, exactly? I have a different layout, different wording, different styles of text, etc.
2) If we are using different sentences but talking about similar things in our ads, can that be a problem? Even if those things NEED to be said to describe and promote the item?
3) What, if anything, should I be looking for to see if I truly AM doing anything wrong? I just blew the guy off as a crackpot because I knew I didn't do anything wrong, but now this attorney friend has me freaking out that maybe I HAVE done something wrong inadvertantly (even though my friend didn't even look at the two ads - it was an "I'm running out the door" type of advice.)
Any help would be appreciated for this rambling problem!
Thanks
There's a lot to this story, but I'm going to condense it down to the finer points that will hopefully be enough for an answer.
Another Ebay and seller and myself both sell the same item.
This other seller has been making cracks about me in their auctions for the past year. Since the item in question is the ONLY item they sell, and I sell other things as well - they make comments like, "I don't sell OTHER things, like car parts, costumes, etc. - I ONLY sell <item>!" She never refers to me by name, so there wasn't much I could do. So I tried to make better statements in my auction that I have been selling on Ebay for 10 years (which is true), am a Powerseller with high feedback, "do not mistake us for imitators" "best quality" and other such statements. It really seemed we were both getting equal sales, so it wasn't that big of a deal to me.
A couple of weeks ago, I receive an email from the supposed "husband" of this seller. At the time, I was claiming I was an exclusive seller to one particular item they also offer (there are several styles of this item) - which, at the time, I thought was true. He informed me that they ALSO sell this same item (we both get them from a distributor) and that I couldn't say that. He also claimed to be an attorney and stated that I had copied several words and phrases from their auctions and that I should stop. He said his wife would spend $10,000 on a lawsuit just to prove a point, and I shouldn't "mess with her." He also said he had spoken to Ebay, and that THEY told him to contact me and instruct me to stop or "Ebay said they will remove you as a seller." Well, of course, that's baloney. Ebay doesn't do that. If you are in violation of an Ebay policy, they end the auction or dump you as a seller - simple as that. My guess is they tried that route first, and Ebay told them I wasn't in violation of any of their rules or policies, so he resorted to the threats. My answer? Nothing - I ignored the letter. I did, however, stop using "exclusive seller" since I knew now they offered the same item.
Yesterday, I get a NASTY email from the same guy, really mad because I "ignored him" the first time he contacted me, and now saying I have crossed a line. He says that his wife has been using the words "ultimate natural" to refer to her items for years, that they are copyrighted to them and that since I am now using those words, if I do not cease and desist using those words, they will sue me. They also said they had documented 9 individual phrases in my auctions that are identical to theirs. I found this intriguing since I wrote my OWN description! I printed out their ad and my own and compared. Yes, we both mention that we ship discretely, but the sentences are completely different. There were a few more places where we referenced similar things about the item, but there's only so much you CAN say about this item! 95% of the ad is significantly different.
I called the Bar Association in the guy's state, and they have no listing of this man's name as an attorney in the state of Arkansas. I also checked the U.S. Trademark office and did a search for "ultimate natural" and found nothing.
So I emailed the guy back, told him what I found out, that I could find no record of him being an attorney, nor a trademark registered to them, so until such time as they provided me with documentation that they owned a trademarked phrase or intellectual property that I was in violation of, I wasn't changing anything about my ads.
So I have a friend who is a trademark/patent attorney. I talked to him this morning, and he had me so confused and upset at the end of the conversation, I'm worse off than I started! He's working from the "big corporation" angle, I think, which neither of us are. He was made at me for sending the letter calling him on his "I'm an attorney cluff" and telling him I would not cease and desist. He says it sounded like I was admitting to copying him, which I was NOT! His final suggestion was for me to send him a note saying that I had sent the other email out of haste and frustration and for him to kindly forward any and all trademark and/or intellectual copyright documentation the he alleges I am in violation of in my ads and that I will adjust my ads accordingly to comply. I haven't heard anything back as of yet. Of course, if he had such documentation, he would have turned me over to VERO, I would suspect.
MY QUESTIONS!
1) My trademark attorney friend seemed to indicate that this guy could have a case if the "overall and look and feel" of my auction ads are similar to his. What does that mean, exactly? I have a different layout, different wording, different styles of text, etc.
2) If we are using different sentences but talking about similar things in our ads, can that be a problem? Even if those things NEED to be said to describe and promote the item?
3) What, if anything, should I be looking for to see if I truly AM doing anything wrong? I just blew the guy off as a crackpot because I knew I didn't do anything wrong, but now this attorney friend has me freaking out that maybe I HAVE done something wrong inadvertantly (even though my friend didn't even look at the two ads - it was an "I'm running out the door" type of advice.)
Any help would be appreciated for this rambling problem!
Thanks
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