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[John Roves]

Here's my situation. I'm selling my excess supply of vitamins on Ebay. These vitamins are all from the same company. I'm only selling about 10 bottles. The company that owns the trademark/copyright to the vitamins have emailed me a cease a desist letter. Stating that I'm breaking copyright/trademark laws. I have personally written the entire listing, and have included only ONE picture of the product, of which I took myself.

My question is this: do they have any legal standing? If they can legally hold me responsible for copyright/trademark violations, wouldn't _any_ company be able to sue anyone selling their trademarked/copyrighted product on Ebay?

Any help would be much appreciated.

[torgo]

Go figure that I read this post while I'm listening to Weird Al's "eBay."

(And yes, the story goes that he did license the name for the song, though I need to look it up.)

Depending on how you are marketing what you are doing on eBay, it's very possible that you're infringing a trademark.  For example, if you're using the company's logo as if it were your own, that's a simple example of infringement.  It's impossible to truly discuss this in this forum, as I don't have your eBay listing here.

Copyright law is another matter, especially when it comes to packaging (if they're not claiming trade dress).

You can call my office if you'd like, John, to discuss this further.  My website is listed below.

(Can you resell vitamins with no problem?  I know that's not IP, but I'm also not an FDA regulatory attorney.)

-Anthon

[John Roves]

FYI:

http://cgi.ebay.com/ws/eBayISAPI.dll?ViewItem&rd=1&item=9510784725

[JSonnabend]

I largely disagree with Anthony's assessment of your situation, to the extent I understand it.  If you are selling genuine Brand X vitamins, you may tell people they are Brand X.  That's called nominative use, and it's a well settled area of TM law.  

Furthermore, if you are using your own picture of the product itself, that shouldn't run afoul of any trademark rights.  You're not branding your own product, merely displaying a genuinely branded product of someone else that you're offering for sale.  How Anthony thinks your situation differs from that guy selling the Trek brand bike or GE brand microwave on eBay, complete with picture, I don't understand.  Perhaps he can enlighten us.

And why would Weird Al have to "license" the name eBay to use it in a song?

- Jeff

[Isaac]

I agree with Jeff that the use appears to be nominative, and not trademark infringement.  However, Ebay may remove an auction for activity that might not constitute trademark infringement.

http://pages.ebay.com/help/policies/questions/vero-ended-item.html

"Before a listing is removed, the rights owner must fill out a form that is designed to ensure that the person reporting the item is authorized to do so, and to enable us to correctly identify the listing to be removed. If your item is reported, you will receive an email explaining why your listing was removed.

"Unfortunately, eBay cannot require rights owners to provide you with the exact reason for the removal of your listing. However, we do require that they provide you with an email address to contact them directly. The rights owner's email address should have been included in the email we sent to you notifying you about your listing removal."

[CMann]

I agree with the previous posters that this is nominative fair use..  

Here's a link on a mildly famous case where Ty tried to prevent a woman from using the domain name bargainbeanies.com to sell used beanies.  Ty lost.

http://www.chillingeffects.org/weather.cgi?WeatherID=264