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   Author  Topic: Trademark Violation question  (Read 1710 times)
wheninrome1313
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Trademark Violation question
« on: Dec 23rd, 2007, 11:18am »
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Hello All!
 
I have a 2 part question regarding Trademarks.  I have an ebay store and sell a line of spiritual and metaphysical products including an old family recipe of lotions and oils.  I call it "Spirit of Sinti" or "SINTI" and then there is different subcatgories like "More Money, "Gypsy Magic" "Potion of Love" "protection" for the different lotions.  
 
One of my listings was just removed by ebay for a trademark infringment by the people who have the TM on "Love Potion" perfume.  This bottle is shown in a potograph.  The label does not contain "love" or "potion" at all.  There was one description in the listing where I say that I have a lotion that cotains a potion of love in it.  
 
I don't understand why my listing was removed.  I don't sell perfume and it isn't called "love potion".  DOes anyone know why?
 
Second, even if I did call one of my subcategories of lotion "Love Potion", and the lotion is still called "SInti" and that is just the description, wouldn't I be ok anyway.  Especially since I don't have a similar product? I mean there was a movie called Love Potion number 9" which this company also own the TM too and they were able to use it.  I guess I am confused at how I violated someones TM rights. Huh
 
Thanks!
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JSonnabend
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Re: Trademark Violation question
« Reply #1 on: Dec 26th, 2007, 10:44am »
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First, eBay's policies are their own, so you can't necessarily analyze their actions based on trademark law.
 
Regarding your substantive fact pattern, much depends on your use of the phrase, as the products sound somewhat similar to me from your description.
 
- Jeff
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SonnabendLaw
Intellectual Property and Technology Law
Brooklyn, USA
718-832-8810
JSonnabend@SonnabendLaw.com
bcapehart
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Re: Trademark Violation question
« Reply #2 on: Dec 26th, 2007, 3:32pm »
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WIR -  
 
Regarding the pulled eBay listing, the short answer is it was pulled because someone made a complaint and eBay agreed there was a violation. Not all listings are caught or reported.
 
Before you relist your item, take some time to review the VERO - Verified Rights Owner (program) policies here http://pages.ebay.com/help/tp/programs-vero-ov.html and click on ALL of the links.  
 
You can also write to whyended@ebay.com but you're most likely to get the same answers.
 
Brent
« Last Edit: Dec 26th, 2007, 3:33pm by bcapehart » IP Logged

Brent A. Capehart
Patents, Trademarks, Copyrights
Deep in the Ozark Mountains
bcapehart@ozarklawyer.com
wheninrome1313
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Re: Trademark Violation question
« Reply #3 on: Dec 27th, 2007, 11:43pm »
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Ebay informed me to contact the company direct to resolve the complaint.  I went to the companies website and they actually have an entire link dedicated to the issue that they own the rights to "love potion" or any variation of the term and that anyone using it need to contact them for licenseing rights!  Now I know what they are trying to do.
 
From  what I understand about Intellectual Property, when you trademark a common term such as this, that describes the good or service that it labels, the less strong the trademark protection it gets and the more freedom others have to use the same word for other purposes.  Especially a common one like this that goes back thousands of years to describe a very specific thing.   The best comparison I can see to my situation is one cannot trademark DIESEL to sell that generic type of fuel, otherwise no other diesel fuel dealer could use the word to identify the product. However, one could trademark DIESEL as a brand of clothing. The owner of the clothing mark can't use its rights to prevent fuel dealers from using the word on their station pumps nor can it prevent anyone else from using the word for non-trademark purposes, such as a website listing diesel fuel dealers.   Doesn't this apply to my situation?  If I am using the term "love potion" to describe a "love potion", I am not infringing on their rights right?
 
WIth that being said, if they continue to have my listings taken down and do not respond to my letter, is their anything I can do to get them to stop without having to get an attorney.  I am a small business and cannot afford to get an attorney for this.  However, their has to be someone (the USPTO?) that governs trademark owners and monitors their activities when enforcing their TM rights that I can complain to.  Can anyone recommend my next action?   Smiley
 
Thanks all!
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JSonnabend
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Re: Trademark Violation question
« Reply #4 on: Dec 28th, 2007, 8:33am »
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Are you sure "love potion" is merely descriptive of your product?  
 
If they keep sending notices to take your product down and don't respond to your letters, you have a few options.  First, you could have an attorney write a letter.  Sometimes parties listen to attorneys' letters but ignore party-to-party letters.  Second, you could sue for tortious interference or the like.   Often times, filing suit is enough to get the other party to talk resolution of the dispute.
 
- Jeff
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SonnabendLaw
Intellectual Property and Technology Law
Brooklyn, USA
718-832-8810
JSonnabend@SonnabendLaw.com
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