To protect the rights of owners of intellectual property, eBay has created a program called the “Verified Rights Owner” program (“VeRO”). eBay is an enormous online platform for retailers selling new and second-hand merchandise. eBay has millions of sellers and buyers.
One problem with online sales platforms like eBay is that some sellers will sell counterfeit merchandise. That is, merchandise will be offered and sold that is alleged to be from a certain brand or manufacturer, but it is not. It is unlawful to infringe upon the intellectual property of others. Owners of trademarks, copyrights and other intellectual property are constantly monitoring eBay sales listing for infringing product listing. The VeRO program is an easy mechanism for owners of intellectual property to notify eBay of fraudulent listings and for having such listings removed.
Participation, or “membership,” in the VeRO program is straightforward. Intellectual property owners who believe that a listing violates their trademarks or copyrights complete an electronic “Notice of Claimed Infringement” (“NOCI”). To complete the NOCI, an intellectual property owner provides basic information on their ownership and information with respect to the infringing eBay listing. Owners must also certify under penalty of perjury that they are, in fact, the owner of the trademark or copyright that they have “good faith belief” that the listing is infringing on their intellectual property. Examples of violations that can be reported include
- Listings or items containing authorized trademarks
- Listings that falsely claim association with or authorization from a trademark holder, such as falsely claiming to be an authorized dealer of certain company merchandise
- Listings of counterfeit or replica items
- Listings or product pages that use of copyrighted content without authorization
- And more
As part of the VeRO program, eBay has established a comprehensive set of rules for their sellers with respect to intellectual property rights. For example, eBay expressly prohibits sellers from infringing copyrights and trademarks and eBay will terminate seller listings and seller accounts for multiple violations of the rules.
Why has eBay established the VeRO program? eBay claims the purpose of the VeRO program is to create a “safe space” for consumers to buy and sell merchandise and to protect owners of intellectual property. While these reasons are likely true, eBay is also required to create something like the VeRO program to avoid being liable for contributory infringement. eBay can be likened to an enormous online flea market. In the past, courts have held that certain sales platforms — like a flea market — have certain responsibilities when it comes to protecting intellectual property rights. If a sales platform is aware of infringing behaviors and does not do something to stop the infringing behavior, then the sales platform can be held liable for the infringement. By allowing the infringement, the sales platform has contributed to the infringement and, thus, is liable for contributory infringement. The punishments for contributory infringement are generally the same as for the original infringer.
The courts consider a number of factors when evaluating whether a sales platform is contributorily liable for infringement. Among the factors are whether the platform has a mechanism for notice by owners and whether the platform takes actions to stop infringing behavior. The eBay VeRO program is aimed at both factors — it provides a mechanism for notice and allows eBay to remove listings and sellers that are engaged in infringing behavior.
For more information, contact the trusted internet lawyers at Revision Legal at 231-714-0100.
