Stopping Infringements on EBAY
Joshua Kaufman © 2005
Rarely a week goes by where I am not dealing with eBay regarding knock-offs of a client’s works being sold on eBay. While eBay has become a major venue for selling art for many legitimate dealers, it has also become a haven for knock-off artists and a large number of individuals who are “unwittingly” selling copyright infringing works, fakes and/or forgeries. I cannot tell you how many times we have found cutouts from tear sheets or magazines being sold as prints, embellished canvas transfers being sold as originals and just regular knock-offs from China or other places.
Many artists and publishers have established regular procedures in which they use eBay search features to locate knock-offs of their works. They type in their names or the names of their artists and then review the results. In addition to finding counterfeits, fakes and forgeries, they also find individuals using artists’ names to generate sales. For instance, an artist who does 3-D art may state in their headline “Fazzino like” in order to capture the attention of individuals who are searching for the works by Charles Fazzino.
Once you have identified a work which violates your copyright, your trademark or is misusing your name, what can you do in order to stop the auctions early on and prevent these knock-offs from entering the stream of commerce? Is there a way to effectively stop the auction? The fact that auctions only last for a few days, the sellers’ names and addresses are not readily available, it makes it difficult to send a timely cease and desist letter. However, there are methods which one can use to shut down an auction fairly expeditiously.
eBay has set up a VeRO program that is fairly effective and it can be used to stop copyright infringements, trademark infringements and the misuse of an artist’s name (which eBay calls “keyword spamming” as in the Fazzino example previously mentioned). Under the VeRO program, a form letter crafted by eBay is sent to eBay outlining the infringing work and the nature of the infringement. eBay then notifies the seller and the buyer, (if there is one), and shuts down the auction. In order to be eligible to participate in the VeRO program, you have to sign up and agree to the program’s terms and conditions. The initial contact with eBay must be in writing with a hand signature faxed to eBay. After that is accomplished, you become a member of VeRO and future correspondence with them can be and should be conducted via email expediting the process. Once you are a member of the VeRO program, when you see an infringement you send eBay the electronic notification form; they do some internal work and will generally shut down the auction. The seller does have the opportunity to rebut the claim, however, in most instances they are infringements and the auction is ended. You can also send the seller a message through the eBay message system and in those instances (in many of which the infringement is innocent) the seller will contact you and you can work out the appropriate destruction of the infringing good and perhaps damages if the situation warrants. Unfortunately, many times we have come up with the situation where it is not an innocent infringer and after being shut down, the infringer just reposts the auction a few days later or sets up another account and funnels the infringing work through that second auction. If eBay identifies serial infringers they will often shut down their accounts. Unfortunately, eBay is somewhat inconsistent in some of its policing. In one instance where a client of mind inadvertently attributed certain works, his account was suspended even though he cooperated with eBay. On another occasion, we presented eBay with a great deal of evidence indicating that one of its big sellers was selling canvas transfers as originals and they refused to do anything about it.
With regard to the “keyword spamming,” the same procedure is used where you can identify the misuse of your name and follow a similar process through VeRO to have the auction shut down. You can also, after completing a different agreement with eBay, obtain a seller’s actual name and contact information if they have been infringing on your works.
Recently, eBay added a new tool to make fighting infringements easier. The VeRO Reporting Tool (VRT) should help facilitate the reporting of infringing works. After you have signed up for VeRO, you are eligible to acquire the VRT by signing another agreement authorizing your use of the VeRO Reporting Tool. With VRT, when you are viewing an item on eBay, a special button entitled “Report Listing” appears at the bottom of the listing in the “View Item” section. Instead of having to send a separate letter reporting an infringement, you simply press on that button and a list of various reasons you believe the work is infringing appears, select the correct basis for the infringement reason (you can also select a more complex explanation from a second pull-down menu as well). There also is a box you can use to send a limited sized message to the seller regarding the infringement. They also allow you to provide a link to your “my eBay” page to identify who you are and standing to the seller. The VeRO Reporting Tool should help everyone police eBay with regard to infringements.
The only other cautionary word regarding eBay and the VeRO program is timing. eBay usually acts fairly promptly when it gets an announcement. However, sometimes it seems like the emails fall through the cracks and the auction is concluded before they take any action. Most of the time they act expeditiously but the burden needs to be shared, and for those of you who are concerned about knock-offs of your works on eBay, it is incumbent on you to keep searching for counterfeits on eBay. It is not hard with the search feature; then notify eBay as soon as possible and with as much time before the auction ends as possible to give them the ability to contact the seller and shut down the auction. eBay’s efforts with its VeRO program and now with their new reporting tools are heads and shoulders above most websites and web entities in regard to policing of counterfeits or their sites. They are not perfect but at least they are making an effort to work with the artistic community, for that they should be commended. In working with them we can try to with the tools they have placed before us and our own vigilance, to hopefully take a little bit of the risk out of buying art on eBay.
For more details on how to join the VeRO program and the terms and conditions, send them an email requesting VeRO and VRT membership at [email protected]
Joshua Kaufman is a partner in the office of the Venable law firm. He has a national IP practice dealing with art, licensing, e-commerce, copyright and related matters. To read other articles on this and other similar topics visit his web site at, www.jjkaufman.com.DC Washington