Discussion:
I posted this in patents also was not sure which forum it is as it relates to copyright also as well.
What is the name of your state? CALIFORNIA
Hello I am in California, the patent holder is in Arizona. The patent holder states that I dont have rights to sell PDA (Palm/HP Ipaq) Screen Protectors on Ebay. He states he's the inventor and I cannot sell and is illegal. The issue is that I am selling a BELKIN Screen Protector licsensed by the Patent Holder. (He even states so that he liscensed it to BELKIN) That being the case I am not selling anything illegal but rather a just re-selling the Belkin Screen protectors liscensed by the patent holder.
Am I wrong to think that I have a right ? I believe I do a right.
I plan to request a legal Counter-Notice. Here is the email I've sent to ebay and to the inventor, attempted remove any indentifiable information.
thanks for any insight or help and Happy Holidays everyone!
EMAIL
----------
Hello,
Thank you for your email.
I can certainly understand your concerns in this matter. If you have a
good faith that you have the legal right to list the items in question,
you may file a legal Counter-Notice. We can e-mail the form to you upon
request, and we will send it to the complaining party once you sign and
return the form.
In the Counter-Notice you will be required to state under penalty of
perjury that you have a good faith belief that the removed auction does
not involve infringing materials and that it was taken down by mistake
or due to misidentification. If you request a counter notice from us,
please specify the subject as "Counter-Notice Request" and include the
item number and your user name in the e-mail.
If you should have any other questions or concerns regarding this
matter, please do not hesitate to contact us again.
Regards,
XXXXXXXXXXXXXXXXXXXXXXXX
eBay Community Watch
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Original Message Follows:
-------------------------
Subject: VERO My listing was removed through VeRO [#US ?01 ]
Dear Ebay I am emailing concerning a business matter regarding
"XXXXXXX" on his "patented" design as a copyright infringement. The
filer of this complaint has an invalid claim against my item. My item
is not a "COPY" of his patented work but rather a fully LISCENSED
patent of his screen protectors for Belkin. As stated on his own website Belkin
has licensed the use of his patent. Therefore I am not selling a
copy/imitation. The screen protectors are manufacturered Belkin for use
in the United States. If "XXXXXXXXXX" holds exclusive rights to sell
his item that means the same goes for SONY or CANNON. There would not
be a third party such as John Doe, or BestBuy stores selling SONY CD WALKMAN
except the gentleman to patented Compact Disc players. BestBuy and
John Doe did not needed permission from CD PLAYER inventor, but SONY did.
As such BELKIN acquired Permssion just asSONY did. Please see my
cancelled auctions below along with his response to show proof that
I made a good faith attempt.
thank you for your Time Ebay support.
*********************************************************
RESPONSE FROM SELLER
*********************************************************
You are selling an Infringing or Pirated product. You are not an
expert
in our field.
You do not have the expertise to make the statements in your reply.
Please read this entire page.
XXXXXXXXXXXXXXXXXXXXXX
(removed persons website)
Do not sell this product again.
> Hello
>
> I am emailing both EBAY and VSPS regarding my auction.
>
> I am interested in understanding why my item is a copyright
infringment on a patent? I am
> not selling an imitation but a real Belkin Product. Understandably if
it was a copy of
> your item it would be considered patent infringement, but the item is
BELKIN and they
> have liscensed it for their products. I believe this was removed in
error, if you believe there
> is something else that is inaccurate please let me know.
>
> thank you
Answer:
If the patented product was manufactured and sold while a valid license agreement allowing the manufacture and sales of the product was in place, then any resellers (such as yourself) would be protected from a claim of patent infringement by the "First sale doctrine."
However, that assumes that a) the manufacturer had both the right to manufacture and the right to sell the product, and b) that you lawfully acquired the product.
Go ahead and file the countr-request and see what happens.
Answer:
mwsoft,
could you give me an update on what happened after filing the counter request with paypal?
I am in a similar situation on eBay as well selling software and the seller is claiming that the selling of that software is not allowed on ebay. The software is not pirated, it is an original copy purchased for resell from a authorized distributor of that company.
any help would be appriciated. thanks.