Harrassment by Purse company

[dvampyrelestat]

My wife has been making and selling handmade slip-on fabric covers that fit "shells" for a magnetic purse. These shells allow people to change the style or color of their purse.

Our covers totally covers the shells (like a book sock). These covers are actually accessories for the original bag.....just like a protective cellphone cover. We do not claim that we are affiliated with the purse company. We do not claim that the fabric covers are authentic shells and have even put statements to that fact and say in our listings that our fabric covers
"fit" over the shells to ensure that no one is confused.

There are several ladies selling similar covers on Ebay.

The purse company (XYZ Bag, LLC) does not want us to use the word XYZ in our listings. But we cannot sell the fabric covers without using the word. The purse company does hold a trademark (STANDARD CHARACTER MARK) for the word.

Is this nominative use or fair use?

 

[Michael Wechsler]

I can't see how you're using the name. The bottom line is this - if there is a likelihood that consumers will think that the origin of the purse is that company then you will probably have a trademark problem. On a practical side, if you do approach this line, you may be sued and you will need to defend your conduct. My question would be why you put the word XYZ in the listings. If it's informational, then it might not be an issue.

 

[dvampyrelestat]

Using the mark in the eBay listing is the only way to identify our custom covers. We even put a disclaimer in the description of the covers saying that we are not affiliated in any way to XYZ, LLC. These are not counterfeits.

The hand bag is an up and coming brand and a good product....not a great one but good. Our covers accessorize it and make it better. The company didn't like what we were doing and is slapping sellers with lawsuits....many of us can't afford to defend ourselves. We are a bunch of individuals trying to keep food on our tables by crafting handmade products.

Since we can no longer sell our covers, my wife put one of her shell up for sale. The lawyer hired by XYZ, LLC filed a complaint with eBay and eBay removed her listing for a genuine shell. (Is that against First Sale?) It feels like we are being subjected to a bully.

It seems that eBay is not willing to help its' sellers since we have not recourse to dispute the complaints....eBay has defeated situations like this prior (Tiffany vs. eBay)....but I guess they don't want to stand up anymore for their sellers who pay selling fees regardless if we sell the item or not.

I don't even know if I can use the company's name if this or any other forums online. Can I campaign online and get this story out there? Or am I just asking for more trouble?

 

[Michael Wechsler]

If you use the trademark as an identifier, e.g. "compatible with XYZ company's cables", it is generally not an issue of trademark. Do you have a copy of the complaint and can you extract the exact cause of action?

eBay is not a company that is known to protect sellers, even if they have a legitimate right to sell. Take a look at the complaints in the Internet forum. Numerous eBay sellers claim to be innocently denied by eBay without any show of harm or illegality. I myself have experienced arbitrary decisionmaking regarding applications for programs and denied for reasons that are beyond ludicrous (while watching what seems to be children being approved with absurd qualification attempts.) The problem is that eBay can do what it wants and turn away legitimate business. Perhaps that is why their bottom line is falling and people are starting to look at alternative marketplaces.