The Intellectual Property Owner notified the auction site (service provider) that your auction infringed on the rights of the IPO, your auction was closed down, and you (the subscriber) received a notice from the auction site, which probably advised you to contact the IPO for more details.

Digital Millennium Copyright Act.   The Digital Millennium Copyright Act was signed into law by President Clinton on October 28, 1998.  This new law protects the service provider from liability if its subscribers infringe on an IPO's rights and if the service provider removes the infringing material upon receipt of a notice of infringement from the IPO.

To get more information, see the "Copyright Office's Summary of the Law" at this URL:   http://lcweb.loc.gov/copyright/ by clicking on the "Digital Millennium Copyright Act Summary," which can be found under the topic of "Legislation" on the home page.

The following is copied from Page 12 of Copyright Office's Summary of the  DMCA Law

The statute also establishes procedures for proper notification, and rules as to its effect. (Section 512(c)(3)). Under the notice and takedown procedure, a copyright owner submits a notification under penalty of perjury, including a list of specified elements, to the service provider’s designated agent. Failure to comply substantially with the statutory requirements means that the notification will not be considered in determining the requisite level of knowledge by the service provider. If, upon receiving a proper notification, the service provider promptly removes or blocks access to the material identified in the notification, the provider is exempt from monetary liability. In addition, the provider is protected from any liability to any person for claims based on its having taken down the material. (Section 512(g)(1)).

In order to protect against the possibility of erroneous or fraudulent notifications, certain safeguards are built into section 512. Subsection (g)(1) gives the subscriber the opportunity to respond to the notice and takedown by filing a counter notification. In order to qualify for the protection against liability for taking down material, the service provider must promptly notify the subscriber that it has removed or disabled access to the material. If the subscriber serves a counter notification complying with statutory requirements, including a statement under penalty of perjury that the material was removed or disabled through mistake or misidentification, then unless the copyright owner files an action seeking a court order against the subscriber, the service provider must put the material back up within 10-14 business days after receiving the counter notification.

Penalties are provided for knowing material misrepresentations in either a notice or a counter notice. Any person who knowingly materially misrepresents that material is infringing, or that it was removed or blocked through mistake or misidentification, is liable for any resulting damages (including costs and attorneys’ fees) incurred by the alleged infringer, the copyright owner or its licensee, or the service provider. (Section 512(f)).

Trademarks.  The U.S. Patent and Trademark Office provides an information site on the internet,
 http://www.uspto.gov/, which contains a lot of information about trademarks.

Motion Picture Association of America: For information about copyright infringement of film and movies, including information about the MPAA, see the MPAA's ME Page on eBay at this location:  http://members.ebay.com/aboutme/mpaa

1.  Do not use the trademark or the copyrighted material in your auction listing.  Instead, use words which may refer to the trademark or copyright material, such as "similar to a well-known name brand" (without mentioning the trademark name), and create your own description to describe the contents of any copyrighted material (rather than quoting from the copyrighted material without the permission of the copyright owner).

2.  Validate your right to sell the property listed for auction by stating the manner in which the item was acquired, such as "bought at a local department store; I can provide proof of purchase with the receipt for purchase," and post your proof-of-purchase receipt in the auction listing.

3.  Obtain the permission of the IPO to use the trademark or copyrighted material in your auction.  You may also need to obtain the permission of the IPO to sell your item (particularly if your item is computer software).  Write to the IPO and ask for permission.  Once you have the permission in writing, post the proof-of-permission letter in your auction.

Consult an Attorney.  Do not do anything until you consult with an attorney and obtain legal advice.  However, you do have the right to be your own attorney; but you would be wise to learn as much as you can before you attempt to represent yourself.  While this page is designed to offer helpful information, no attempt is being made to offer legal advice or to dissuade you from obtaining qualified legal counsel.

To find a lawyer:  Click here to see another article on How to Find An Attorney

Corresponding With the IPO to Determine What Are the Infringement Allegations.  If you do not know what allegations have been made specifically about your auction, send an e-mail to the IPO requesting information on what specific parts of your auction are alleged to have infringed upon the IPO rights.  (You can find the IPO's e-mail address in the e-mail notice you received from the auction site.)

Be very careful when writing to the IPO, and do not do so without consulting an attorney about it first.  Do not write anything which might jeopardize your legal position.  Write only what is necessary to obtain the information about what was allegedly infringing in your auction.

Suggested Form Letter to E-mail to IPO.   This form is a suggestion only, which may give you some ideas about composing your own letter.  However, you may, if you wish, copy and paste this form letter into your e-mail.

Dear ______ (Intellectual Property Owner):

Regarding:  ___________ (auction site and auction number)

I have received a formal notice from _________ (auction site name), which notified me that you alleged that my auction violated your intellectual property rights.

I would appreciate your sending me an exact list of what was in my auction listing which allegedly violated your rights.

Sincerely,

___________ (your name)

For copyright-infringement accusations: Check the item for a copyright notice.  Usually the name of the owner of the copyright is shown next to the copyright statement or copyright mark.

For trademark-infringement accusations: Go to this web page at the U.S. Patent and Trademark Office's site: http://www.uspto.gov/tmdb/index.html and do a search to determine who is the legal owner of the trademark.  Compare the registered owner's name with the person (or company) who has accused you of trademark infringement.

If someone claiming to be an attorney representing the IPO has contacted you:  Investigate the identity and legitimacy of anyone who represents themselves as the legal counsel or attorney for the IPO.  Do not assume that just because someone claims to be an attorney that they are accredited or licensed to practice law in their state.  (Anyone can claim to be an attorney and send you a bogus e-mail notice or certified letter.)

1.  Check with the State Bar Association in the attorney's state, to verify the credentials of the IPO's attorney.

2.  Check that the law firm shown on the attorney's letterhead is legitimate by calling telephone information and asking for the phone number of the law firm, confirming that the phone number obtained is the same as the one on the letterhead.  Call the law firm and ask if the attorney who sent the letter is a member of that firm.

Comply with the Rules.  It is best to always comply with the rules of the auction site and to pay strict attention to what the auction site states in its e-mail to you about the copyright and trademark issues.  For instance, the auction site may suspend your privileges if you are repeatedly accused of infringing on the rights of a IPO.

Counter Notification to the Auction Site.   The sentence below is quoted from the Copyright Office's Summary of the DMCA, page 12:

 If the subscriber serves a counter notification complying with statutory requirements, including a statement under penalty of perjury that the material was removed or disabled through mistake or misidentification, then unless the copyright owner files an action seeking a court order against the subscriber, the service provider must put the material back up within 10-14 business days after receiving the counter notification.

(B) upon receipt of a counter notification described in paragraph (3), promptly provides the person who provided the notification under subsection (c)(1)(C) with a copy of the counter notification, and informs that person that it will re-place the removed material or cease disabling access to it in 10 business days; and

(C) replaces the removed material and ceases disabling access to it not less than 10, nor more than 14, business days following receipt of the counter notice, unless its designated agent first receives notice from the person who submitted the notification under subsection (c)(1)(C) that such person has filed an action seeking a court order to restrain the subscriber from engaging in infringing activity relating to the material on the service provider’s system or network.

(3) CONTENTS OF COUNTER NOTIFICATION.—To be effective under this subsection, a counter notification must be a written communication provided to the service provider’s designated agent that includes substantially the following:

(A) A physical or electronic signature of the subscriber.

(B) Identification of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or access to it was disabled.

(C) A statement under penalty of perjury that the subscriber has a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled.

(D) The subscriber’s name, address, and telephone number, and a statement that the subscriber consents to the jurisdiction of Federal District Court for the judicial district in which the address is located, or if the subscriber’s address is outside of the United States, for any judicial district in which the service provider may be found, and that the subscriber will accept service of process from the person who provided notification under subsection (c)(1)(C) or an agent of such person.

1.  Proof that the person/company who made the infringement accusation is not the IPO.

2.  Proof that the person/company claiming to represent the IPO as attorney is not licensed to practice in the state shown in his address.

3.  Proof that (1) you have not violated a copyright or used a trademark which is not yours, or (2) you have the permission of the IPO to use the copyright or the trademark in your auction.

Complain to the Auction Site About Its Policy. Send a letter or e-mail to the auction site (addressed to management or the owner), explaining your situation and predicament (that your auction has been shut down without allowing you to defend yourself first against alleged infringement).  Be polite, but firm.  Make suggestions that the auction site's management could consider, such as (these are only suggestions, use only the ones which apply): allegations and accusations are not proof; while you understand that the auction site needs to protect itself against lawsuits, the auction site also needs to protect you against unjustified allegations; that the auction site could have notified you about about your rights under the DMCA and provided you with information about filing a counter notice; etc.

Suggestions for Dealing with the IPO's Attorney Are:

1.  Obtain your own legal counsel.  (See the above topic The Law  for help on how to find an attorney.)

2.  Study the law yourself and know what your rights are.  Just because you've been accused of violating or infringing upon another's intellectual property rights or trademark, does not mean that you have done so.  Protect yourself, know your legal position, and be prepared to defend yourself!  Even if you are represented by an attorney, the more you know and understand about the law, the better you will be able to help your attorney defend you.

3.  If you received a letter from the IPO's attorney, do not respond to it until you obtain legal advice from an attorney of your own.  It may be tempting to reply to the IPO's attorney without legal advice, and the IPO's attorney may have stated that you must respond immediately (which might not allow you enough time to consult an attorney), but you would be wise to respond only after obtaining legal advice from a competent attorney.

4.  If the IPO's attorney demands that you deliver the item(s) to his office, it is suggested that you do not do so without obtaining legal advice first.

DMCA or Digital Millennium Copyright Act of 1998.  The new law, which among other things, "creates limitations on the liability of online service providers for copyright infringement when engaged in certain types of activities."  For more information, see the "Copyright Office's Summary of the Law" at this URL:   http://lcweb.loc.gov/copyright/.

IPO or Intellectual Property Owner.  The owner of the copyright or trademark.

Service Provider.  The auction site; any internet service provider.

Subscriber.  The auction seller; any person using the service provider's site.
 

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