eBay has become an accessible marketplace for many people who assume that they have a perfect right to sell anything in their possession.
Some traders have therefore been surprised by the readiness of eBay to discontinue the listing of items which they believe are being offered for sale illegally or which contravene eBay’s own policies - a recent example of which has been those goods recovered from Branscombe beach in Devon following the grounding of the merchant ship Napoli. This article deals however with listings on eBay which are alleged to infringe intellectual property rights (IPRs) of third parties such as trade marks, copyright, patents or registered designs.
When eBay delists such items, it does so in accordance with its own “Verified Rights Owner Programme”, known generally as VeRO. “Verified” may be something of a misnomer! In our experience it takes very little IPR verification to persuade eBay that a listing should be removed because it infringes someone’s IPRs.
VeRO depends upon the completion and submission of a minimal form of statutory declaration –“Notice of Claimed Infringement” - in which they declare their belief in good faith that certain specified listings infringe IPRs in accordance with certain “Reason Codes” – for example, the seller is alleged to be offering bootleg recordings of live performances (Reason Code 3.2). No reasoned substantiation or proof of ownership of the IPRs in question needs to be given by the rights owner.
The seller of the items in question is advised of the email address of the originator of the Notice and the reason for the delisting when he is informed that the goods have been removed from the website. The seller is urged to make direct contact with the person alleged to be the rights owner to resolve the issue without eBay’s further involvement.
eBay obviously has a legitimate concern to protect itself and to mitigate its own legal position if it is alleged to be facilitating the sale of infringing items but to date no one has sued eBay as a joint defendant in IPR proceedings. eBay needs to have a cheap and effective method of avoiding any liability. It must also be able to demonstrate to rights owners that it has put in place an effective system which upholds their IPRs.
However, the VeRO Programme is open to abuse since alleged rights owners can use it to have listings taken down when they cannot truly establish that they have the rights they say they have. Some unfairness is no doubt experienced by bona fide seller trying to sell perfectly legitimate merchandise. They have little cause to complain to eBay on legal grounds since they are bound by the VeRO Programme as well as other user terms and conditions when they agree to list goods for sale in the first place.
There is no reason in theory however why innocent sellers cannot take issue directly with rights owner complainants if they are aggrieved by groundless Notices resulting in immediate delistings. In a case last year (Quads 4 Kids v Campbell), the rights owner notified eBay of a listing of dirt bikes alleged to infringe certain registered designs. The listing was of course immediately removed. The seller believed that such allegations were without foundation and began an action for “unjustified threats”. It was successful in obtaining an injunction preventing further threats being made by the rights owner. If groundless threats action is taken by too many sellers, it can be envisaged that confidence in the VeRO Programme by rights owners could begin to evaporate.
