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Selling an Unwanted Item on eBay

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  • 04-15-2010, 07:28 PM
    TheJKH1999
    Selling an Unwanted Item on eBay
    Hello all,
    I have a new dilema!

    I have a TRX Force suspension kit that was for sale on ebay.
    It is the genuine item, not a "fake" and I only have the one left, I allready sold 2. Im not buying and selling them, just happened to get these 3 that I dont want.
    It got pulled because the makers of the item said it was a fake, I filed a counter notice and relisted it. they have no evidence to bel;ieve it is a fake. They "assume" it could be but I believe the more likely thing is that they sell them on Ebay and about $75 higher then I had mine listed.
    It got pulled again and now they say it is a trademark infringement. They say I cant use their trade mark "TRX Force Suspension Training" to sell their item!!
    I wrote the entire ad not using any of their language but the name of it, I also stated in my ad that I had to many and am selling these to get some money back.

    does this follow under fair use? I mean if Im selling a item and clearly not being confused with the owners dont I have a right to say the name of the item?

    Now they want me to give them a copy of my drivers license, my SSN#, a reciept that shows I got it from them and open teh package to take pictures of the item. All any of this would do is give them my personal information and show that it is a real deal, well I filed a counter notice and they didnt bring legal actions and now they say its trademark issues. So it seems as if they are trying to get around my legal counter notice.

    Their "lawyer" called me and berated me, he was yelling and screaming and getting pissed, I told him in a mellow tone several times to calm down, this didnt help, then he cussed at me and told me to F*&^ off!! I never got angry, never raised my voice and never reacted to his antics. He told me he had 2 cases against other companies and that if I didnt let him berate me he would add my name to the list, which I encouraged. I let him know it isnt a fake, he demanded a reciept and send him the item so he could check it, I told him for $200 I would ship it and thought that was a good price considering they sell for a lot more and shipping is extra. Once I told him I was recording the call he got very professional and asked if I had any further questions then hung up.

    Sorry goit a little side tracked, so can I sell a item of thiers with the title as long as Im only describing the item? my own pictures and my own discription and clearly not part of the company?

    Do they need any evidence in order to say it is a fake? how do I get around this to sell it?

    Thanks, Jeremy
  • 04-15-2010, 08:50 PM
    Mr. Knowitall
    Re: Selling a Unwanted Item on Ebay
    There's no "fair use" in Trademark law, although you can generally refer to a trademark as long as you are making clear that you're not claiming ownership or interest in somebody else's mark. Review sites and news stories frequently and lawfully reference trademarks and service marks.

    The issue of what eBay will allow you to put in a listing, though, is a matter of contract law between you and eBay, not a matter of trademark law. If eBay says "You can't do it under the terms of use for our service," consider using a different service to sell the item.
  • 04-15-2010, 09:16 PM
    jk
    Re: Selling a Unwanted Item on Ebay
    Quote:

    just happened to get these 3 that I dont want.
    you just happened to get 3 of these things. hhmmm. makes one wonder.

    just where would you get 3 of these things you don't want? That may be the big problem.

    If you purchased them at a retail level, you are allowed to sell them and you can use the name of the product in your ad.

    I think they suspect they are not legit TRX systems or that you acquired them not through a retailer.

    so, just where did you get them?

    Quote:

    Do they need any evidence in order to say it is a fake?
    Of course not. I can say just about anything I want. It's what they can or cannot do. If they have reason to believe they are fake, they most assuredly have every right to take legal action to make sure you do not sell fake TRX systems.

    any idea who you sold the other 2 to? A lot of times the owners of the product will buy what the scammers sell on eBay. It gives them all the evidence they need to sue them.
  • 04-16-2010, 03:46 AM
    TheJKH1999
    Re: Selling a Unwanted Item on Ebay
    Quote:

    Quoting Mr. Knowitall
    View Post
    The issue of what eBay will allow you to put in a listing, though, is a matter of contract law between you and eBay, not a matter of trademark law. If eBay says "You can't do it under the terms of use for our service," consider using a different service to sell the item.

    Ebay was only pulling them because the companies lawyer sent Ebay a document testifying under oath that my listing violates trademark laws, Ebay doesnt care what I list unless the rights owner complains.

    Quote:

    Quoting jk
    View Post
    you just happened to get 3 of these things. hhmmm. makes one wonder.
    just where would you get 3 of these things you don't want? That may be the big problem.

    Does it matter where I got them from? Im not under suspicion of theft, Im being accused of trademark law. So if I buy a item directly from them I can sell it but if I get it from someone else that bought it from them I cant, even if they are the exact same item?

    Quote:

    Quoting jk
    View Post
    so, just where did you get them?

    since this seems to be the most asked question from the company.
    I went to a local auction house from a storage facility. I saw the 3 bags and bought them knowing what they are worth and nobody else thought they were worth more then what I bid. I have a kit I bought from the company a few months ago, I paid a lot more then Im asking for these. I compared them to mine and they are identical. To further prove my validation the storage unit they were in that got auctioned belonged to a fitness supply company and there were receipts in the pile from the same company saying they are fake, by law Im not allowed to get the receipts as it shows personal info from the storage units original owner so I returned it to the auction house.
    I dont feel that this is any issue though, they have no proof they are fake, I hope they did buy one of my items, both people left good feedback and are pleased, one of the addresses was VERY close to the companies, he left good feedback.
    I also dont think I have to prove anything to the company, they should be the ones to prove they are fake if they are accusing it. I have never seen Ford pull a ad for a taurus and say its a fake, nor have I seen them pull a ad for a second hand car and claim trademark to it.
    I hope they do bring court actions, I have pictures showing they are real items, but they arent saying they are fake now anyway. they said they were fake so I did a counter notice, at that point they could have easily gotten a court order but decided not to. They cant claim they are fakes cause they tried that before, now they are saying Im violating trademark, by selling their item with their items name in my ad!
    I think it is 2 separate things, trademark and counterfeits.
    I see where they can SAY it is a fake but they have NO proof and I know this because they are the real deal. They refuse to bring court action against me. I listed the items on craigslist, the exact same ad from Ebay and sent the link to their lawyer, its been a week, no court hearing yet.
  • 04-16-2010, 12:25 PM
    jk
    Re: Selling a Unwanted Item on Ebay
    Quote:

    I also dont think I have to prove anything to the company, they should be the ones to prove they are fake if they are accusing it.
    well, this gets into semantics. If they sue you, they would be able to require you to submit the product for their review and authentication. So, bottom line, do you have the funds or the legal acumen to be able to even respond to a suit? If not, it might be in your best interest to do what it takes to prove the items are authentic.

    Quote:

    So if I buy a item directly from them I can sell it but if I get it from someone else that bought it from them I cant, even if they are the exact same item?
    it would depend, ultimately, how they were originally obtained.

    Quote:

    but they arent saying they are fake now anyway.
    Oh, so now the story changes. This is from your first post:

    Quote:

    It got pulled because the makers of the item said it was a fake,
    Quote:

    They cant claim they are fakes cause they tried that before
    what? If they want to sue you, they surely can claim they are not authentic.

    Quote:

    They refuse to bring court action against me. I listed the items on craigslist, the exact same ad from Ebay and sent the link to their lawyer, its been a week, no court hearing yet.
    Oh, that's brilliant; poke the bear to see if he will bite you.

    a week? Heck, it will take them more time than that to just get the info assembled and to write a complaint.

    Quote:

    They refuse to bring court action against me.
    yet. They have time...lot's of time.
  • 04-16-2010, 09:35 PM
    TheJKH1999
    Re: Selling a Unwanted Item on Ebay
    Yeah, they changed their story, first is that it was a fake then the second time it was because of trademark infringement.

    Yes, I did poke the bear to see if he had anything to bite with.
    Not only DO I have the time and money to against a suite, I have nothing better to do :)
    My lawyer had filed a tro against their lawyer to stay off my items, either charge me or move on as he put it.
  • 04-16-2010, 09:38 PM
    Mr. Knowitall
    Re: Selling a Unwanted Item on Ebay
    "My lawyer had filed a tro against their lawyer to stay off my items" - If you want to have any credibility here, don't make claims that are absurdly stupid.
  • 04-16-2010, 09:39 PM
    jk
    Re: Selling a Unwanted Item on Ebay
    Quote:

    =TheJKH1999;412412]
    Yes, I did poke the bear to see if he had anything to bite with.
    Not only DO I have the time and money to against a suite, I have nothing better to do :)
    then enjoy, if they want to play.

    Quote:

    My lawyer had filed a tro against their lawyer to stay off my items, either charge me or move on as he put it.
    you may get an injunction to prevent them from contacting you until they file suit but you aren't going to prevent them from taking action to prevent the sales if they believe they are correct. That is their legal right.
  • 04-16-2010, 10:10 PM
    Mr. Knowitall
    Re: Selling a Unwanted Item on Ebay
    He's not going to get a court to issue a restraining order preventing a trademark owner's lawyer from contacting (at this point) his lawyer about possible trademark violations. Pure fiction.
  • 04-17-2010, 12:20 AM
    TheJKH1999
    Re: Selling a Unwanted Item on Ebay
    Quote:

    Quoting Mr. Knowitall
    View Post
    He's not going to get a court to issue a restraining order preventing a trademark owner's lawyer from contacting (at this point) his lawyer about possible trademark violations. Pure fiction.

    thats not what I said is it?

    he is getting a tro for thier lawyer to me alone, they can still take action, they just will now only have the only option of taking legal action, they cant contact me anymore. contact my lawyer, who at this point is ignoring anything but a subpeona or court document.

    I wish they would just file allready instead of a non english speaking "lawyer" calling me and threatening me and cussing me out instead of calling my lawyer.
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