Trademark Infringement

Wow… Everything was going great and then I received a great letter in the mail from a really nice lady.  It informed me that I had infringed on a companies trademark and it gave me a list of steps to take to make it right.

I’m writing this guide in hopes of helping others who are just starting out on eBay avoid the mistakes I’ve made, and avoid all the headaches that come with the mistakes. 

What is Trademark Infringement?

Trademark Infringement comes from the use of a trademark in connection with the sale of good if it’s likely to cause confusion. I.E. If somebody promotes a home-gym they have made and uses a big name company to promote it (I don’t want to get in trouble here but think of a company that rhymes with “Rowflex”)

How do the Courts Decide if the Trademark involved caused Confusion?

In deciding whether consumers are likely to be confused, the courts will typically look to a number of factors, including: (1) the strength of the mark; (2) the proximity of the goods; (3) the similarity of the marks; (4) evidence of actual confusion; (5) the similarity of marketing channels used; (6) the degree of caution exercised by the typical purchaser; (7) the defendant's intent.

I sell eBooks and digital goods.  I purchase resale rights for them and in most cases they come with a sales letter and images.  In my case I decided to compile a package of romance/relationship eBooks and sell them as one package.  All of the eBooks in my package I own resale rights for but I had to make my own sales letter.  I wrote up the sales letter, listing all the products involved by the title of the eBook.  I made sure that none of the items were copyrighted and finished my listing by adding some royalty free Clipart images.

When my auction was cancelled due to trademark infringement I thought that one of the pictures I had used weren’t so free and tried to find out what I did wrong.  I found the website that the images were listed on and found out that they were in fact free for use.  I couldn’t figure out what I had done wrong.

Then the letter arrived.  It explained to me that I had used two words that were copyrighted by a big time publishing company in the United States.  What two words?  I don’t know if I am entitled to say, but think a yellow book, that teaches you how to do things, and the title usually follows this pattern: Auto Repair BLANK DUMMIES.

The title of the product listed in my eBook package was Kissing FOR BLANK.  And although the company that sent the letter doesn’t own the eBook itself, they do own the trademark For Dummies. I was unaware that this phrase was trademarked, or that any phrase for that matter could be trademarked (You learn something new everyday).
That being said I now understand why this is a big deal and will do everything in my power to never use a trademarked title, catch phrase, or anything along those lines.  I had no intention of trying to boost sales or draw buyer’s attention to my listing by posting the title of the eBook with the For Dummies title in it.  I was simply posting the titles of all the eBooks available in the package.

The point of this little tale is one that I hope many new eBayers will come across and take to heart.  Make sure you double-check all of your listings (no matter what you sell) for phrases or terms that could be considered Trademarked.  This little misunderstanding might end up costing me a small chunk of change and quite a bit of pulled out hair.  It’s just not worth it.  If you’re unsure if you have the right to sell something or to put a term or phrase in your auction double-check before you list.  It will save you a ton of aggravation in the long run.

I hope this guide has helped you out, if it did PLEASE REMEMBER TO VOTE.  Please contact me with any questions, comments, or concerns you have.

Thank you,

Randall of Randalls-eBooks (http://stores.ebay.com/Randalls-eBooks)