EBay threatens ShmeeBay
 

so, after much hardwork and trying to make my new site ShmeeBay.com run fast and less graphics, i get notified by my webhost that Ebay has ordered them to remove my website.

they state that because my site is a discussion site about eBay (technically it's trying to forum all Ebay Sellers into a Union) and talks about eBay and has the word ebay in the domain name, that they have the right to bring it down. so if i named my site ChesapekeBay.com or TheBayofPigs.com and talked about eBay, they can also take me down?

in a separate letter to me, they also stated that they were successful in preventing the actual registration of the domain name "www.ebaysecurities.com". so i did some research and wouldn't you know it, although ebayforums.com, ebayforum.com, ebay-forums.com, ebaychat.com, ebaytalk.com, etc. have all been purchased by various people, there are no sites! eBay successfully pulls this gestapo ++++ and scares them into submission.

yet, chevytalk.com, hondaforums.com, fordforums.com, nissanforums.com, etc. are all unaffiliated with those companies and are up and running. nonetheless, i've been notified that eBay is preparing to sue me. who knows if the webhost will succumb. but i will try to put it up elsewhere.

and i will countersue. if they sue to bring my site down, i will countersue to for them to leave it up and then the host may have to just stay out of it and leave it up. i've confirmed with them that i have not violated my user agreement and on top of that, i'm not running any ads, etc. it's purely donation supported.

anyhow, if anyone's interested in reading the first steps of a potential full blown war with eBay, please go to: http://www.shmeebay.com/forum/showthread.php?t=36

thanks for reading!

It's a curly one, that's for certain.

There are a few things to take into consideration:

1. Ebay could always take you to ICAAN over your usage of 'ebay' in your domain name.
You have their trademark in your domain name, and your entire site's existance comes from the fact that ebay.com exists, so you could be shown to be gaining from the usage of ebay in your domain title.

2. Your host has Terms of Use that you are required to follow:
So, if ebay can convince them that your use is an unauthorised breach of trademark, they would have the right to pull the plug on your hosting account.

3. If it does come down to a legal battle...what on earth will you do if they are awarded costs? By that I mean, they will have the right to claim for the costs of their time and the time of their lawyers etc, and if granted, you would have to pay. Costs can be awared even if they 'lose' the case.
Also, if there is legal action involving your host, I saw some clauses in there that mean you have to pay towards their costs too.

not quite. Go to http://paypalsucks.com and read their legal justification and about their successful legal battle over the domain name, the use of the trademarked name, as well as the logo. Also check out these other sites: # PissOnEbay, BuckCitibank.com!, IntgoldSucks.com, etc..

Don't let eBay bully you - but be prepared to either have a good lawyer friend defend you, or have a lot of $, because once they have you in their sites then you are in for a ride. A winnable ride, but still a ride.

What do you mean by 'not quite'?

Also, I can't be bothered searching an entire site for information on the battle over the domain name, please provide a link.

It's all covered extensively in the FORUMS which chronicle the history of their battle, but suffice it to say that they are still up, and are still using a variation of PayPal's logo 2 years after they got a nasty legal sounding letter from PayPal. I have been a member of the paypalsucks.com forum ever since they opened their doors - there is a lot of good info there regarding Anti-SLAPP laws, etc..

http://www.sucks500.com/lockheed.html

According to ICANN's policies, (quoting from that case):
In order for Complainant to prevail and have the disputed domain name [in this case paypalsucks.com] transferred to it, Complainant must prove the following (the Policy, para 4(a)(i-iii):

1. the domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights; and
2. the Respondent has no rights or legitimate interests in respect of the domain name; and
3. the domain name was registered and is being used in bad faith

For point number 1, federal courts have already ruled [quoting from that link] that "sucks" appended to a famous trademark used as a domain name for websites used to discuss or criticize the business of the trademark owner results in a non-infringing and not confusingly similar use of the trademark. (re the domain name <Lucentsucks.com>, Lucent Technologies, Inc. v. Lucentsucks.com, 95 F. Supp. 2d 528, 535, E.D. Va. 2000).

The same logic would apply to "Shmeebay," therefore, since eBay can't show that shmeebay.com is confusingly similar, it has no case.

Be sure to visit the Electronic Frontier Foundation (http://www.eff.org) and read up on "Strategic Lawsuits Against Public Participation" (SLAPPs). Basically eBay is hoping to file suit against you in hopes that your legal costs will become so great that you can no longer afford to defend yourself. (see http://www.eff.org/Censorship/SLAPP/). They know that they have no case against Shmeebay they are just hoping to raise the legal costs so high you cant afford it. Contact someone at the EFF. They have a member supported legal fund that will help you defend yourself, and they have a lot of experience at dealing with things exactly like this. Also I suggest that you read up on the Anti-SLAPP law, and try to use it to your advantage.

Also see:
http://www.bosleymedicalviolations.com/lawsuit.htm
http://bosleymedical.com/

more sites:
http://www.citizen.org/litigation/br...Spch/index.cfm
http://www.casp.net/orglist.html
http://www.cfac.org/

wow yoyoyoyo, thanks for all the info! kall, i also thank you for pointing out those concerns with the website and icann. yes, i will take it to the fullest extent i can.

Good to hear.

I'm not trying to say what you are doing is wrong, only that you must be careful.

I got royally screwed by the legal system recently (totally unrelated, but a similar situation of 'surely the law will protect me'...)but it didn't and it cost me.

Remember, you are going up against a big organisation if you try and take them on. They will have some of the world's top lawyers, they'll have far more resources than you too. I don't mean to burst your bubble but I don't think you'll win this one. An old admin friend of mine used to run a site with simply the word olympics in the domain name. The olympic association (or whatever it's called) took him on, even though his site had nothing to do with the olympics, and they won.

Also you can't deny that your domain has the word eBay in it, your site is blatently ABOUT ebay when you enter it. From where I'm looking this can only turn out one way so I'd quit while you're ahead and don't waste your time :)

P.S. I'm not a lawyer, so don't take this as legal advice

IMO, if you can't be bothered you might as well just take down your site now. You will need to do some research and most likely spend some time defending your site and domain name.. If not time, then you will be investing $$$ in your defense. Just a thought.

I think your fight is great and worthy.

I am sick of these major corporation that think they can run roghshod over the small guy. In America at least we have this thing freedom of expression and this is something that applies to corporations as well as the government.

If you are ready for the fight then also be ready to never give up. Here is your plan of action.

1. Study up on the law surrounding your issue. (yoyoyoyo has given you some excellent starting points) This way if you run out of money or simply cannot afford an attorney you can act pro se (or as an attorney on your own behalf).

2. ebay is filing what amounts to a harassment suit, hoping you lack the will and the resources to keep on fighting, so it shows they are not foreign to a bit of dirty pool, well you can "flip the script on them" and play the publicity game. Shout it to the heavens that ebay is bullying you.

3. Contact old stalwart civil rights horses like the ACLU and others to see if they will get on board with you.

kall is not the thread starter.

I'm on anyone's side that tells a big corp to shove it! Good Luck!

The difference is you go to those sites and it is clear just by the look that it is not a corporate site. They did not use a color scheme to appear as if it was the site they are discussing.

i would not try to fight eBay on this. They are the largest online auction site in existence and will easily crush you because they have the money for the long run. eBay will most likely get your hosting unplugged where ever you go even before a trial starts because web hosts do not want to get in the middle of a legal/trademark war. to webhosts legal battles = hurt of sales. So just some common sense would be drop the name(not the idea) and just make a new name.

However, if your going to fight them on this try pulling the old Mike Rowe move by getting the media's attention on this and that might put public pressure on them to stop or at least give you compensation for the name. Mike turned out with an Xbox and loads of other stuff from Microsoft so maybe you can get something from eBay. Also as said above, find resources to back your claim up such as court decisions(even though there are few on the internet still) and become knowledgeable on the area of trademarks and the internet.

well i agree with 1996 328ti colors do make a difference on making it so it doesnt seem like part of a corporate website. But then again you cant have copyright on any color.

But im not sure if it maters but you made it seem like shmeebay is affilated with ebay in a way that you stated that shmeebay works with ebays union and will help them if needed which really isnt a good idea, but what you should of done is just say its a Ebay Community where we discuss about scammers, fraud and about a particular item that you love or hate.

also what you should write at the bottom of the page someplace by the copyright.

"Ebay is a registered trademarks of Ebay, Inc. We are not affiliated with Ebay."

yes that would be a very good start;)

well, the webhost contacted me and is contacting their lawyer to gauge their liabilities and before they pull the site. i've also found, through yoyoyoyo's provided info, that they were unable to stop this site www.pissoneBay.com . but then again, these guys may be hosted in russia.

my whole world is full of lawyers, so i am having a trademark attorney, a firstamendment specialist and my cousin who is the deputy attorney general for california (anti-trust) division take a look at it. again!

but i still find it somewhat sneaky, yet brilliant, on their end to not contact me directly but go straight to the webhost. i guess they bank on them bringing me down, then me setting back up somewhere else, and the new host bringing me back down, etc. and eventually me running out of money or giving up.

the only reason they contacted the host and not you is because you are not the owner of the server, you are just renting space from your host. So your host is held reliable on what is on the servers unless you own your Private Servers then they would just contact you instead.

Its just about the same way when renting your own apartment. If neighbors are complaining about a tenant then everyone would be going after the owner of the place house so they can do something about it without fighting with the tenant that is causing the problem.

I am glad you found the info I posted useful, and I hope it helps you stop eBay from pulling the plug. I do think that a discalimer stating that you are not in anyway affiliated with eBay, etc. is a great idea. Maybe even make it a javascript that only pops up once per session (or is cookie controlled) making people click "agree" on a disclaimer box. That way eBay would have a lot less room to talk if you shove the fact that you are NOT eBay in people's faces. Also be sure to document all of the hassles, etc., and post info about it on your site :D

Keep up the fight. You can recoup the monies spent to defend your rights. If it gets that far where you are served with papers make sure you counter sue for loss of revenue.

what if i co-lo it? does it still apply?

I'd love to countersue but my site is just a discussion forum with no ad banners etc. so there isn't any loss of revenue as i know but the definition i understand. :(

anyhow,

sorry to say although my webhost wanted to stick by me (they personally called in the middle of the night), their attorney has suggested that they pull the plug. so, eBay has one the first round. But stay tuned.

another fantastic idea! will code such when i get a new host.

I think i replied at TAZ

one of the issues is you were using the EBAY logo. Which I am sure pissed them off to a great deal.

it's not the logo, it's the usage of the letters "ebay" in my domain name. hypothetically, if this goes to the supreme court and eBay wins, then all forums such as hondaforums, chevytalk, fordforums, nissanforums, ad infinitum would be pulled because they would automatically be illegal.

personally, my attorneys think they're using trademark law to accomplish the same thing as censorship because if they filed under the right to quelch discussion forums, then it is a whole new ball game with no precedence.

perhaps that is why there are no ebay discussion forums out there? or is there?

It is not just the usage of ebay in the name. chespeakebay.com would be legal.
When you have ebay in your domain and your site is about ebay, regardless if it is positive or negative you are using ebay to refer to the auction site and to draw attention at ebays expense. It is a company protecting their intellectual property.

And before speaking about ebay not being able to hold any rights to the colors.
It is not the colors but how you using them.

Like I said on vBa, I have no interest either way. I'm just expressing an opinion, a discussion. If eBay was to squelch a discussion board, I'd say you have every right to fight and my guess is you could get top legal counsel for free based on the freedom of speech.

If you want to have a discussion board I would think of a different name and look.
The name and look is not going to make or break the site. I think it is going to be the content. Good luck.

Have you tried to do a google search ?

You know what if i were you keep the site up and running as long as you want. Email doesnt prove anything on what is going on with ebay and their trade marks. If they want to contact you they need to send you a signed letter by ebay and their lawyers stating that you cannot use ebay trademark in your domain. So im really considering that email is a scam just to scare you and your host.

no, the email was to me from my host. the host received a DCMA from eBay. i don't know what that acronym stands for and i'm trying to get a copy of it.

Do you know what happens when a Judge awards costs to a company after a legal battle?

It means that yinyang would have to pay for the costs incurred by Ebay in taking the issue to court.

So, if you were him, you would be facing the very real possiblity of thousands and thousands of dollars in legal fees, even if you were to win the case. These fees have already started clocking up, as Ebay has sought legal counsel on the matter.

Regardless of whether or not the site was set up to provoke ebay, it has had that effect, and they are unlikely to back down from the challenge now that they have started the ball rolling.

i guess i read the first post wrong then my mistake but heres the acronym for DCMA two meanings but basicly the samething

DCMA Defense Contract Management Agency
DCMA Defense Contract Management Association

http://www.copyright.gov/reports/stu...executive.html

The Digital Millennium Copyright Act of 1998 (DMCA) was the foundation of an effort by Congress to implement United States treaty obligations and to move the nation's copyright law into the digital age.

Google is your friend.

Digital Millennium Copyright Act (DMCA)

Thus proving your lack of knowledge on this subject.

Sheesh. Like he would have recived a Defense Contract Management Agency from ebay.

*edit* Okay, so the site *didn't* go down until after I had submitted this.

thanks Kall and 1996 328i. yeah, i've been a bit busy to google, but i really appreciate the link kall. time to do more reading.

I'd recommend you stop by a site called dnforum.com. It costs money to join, but it's worth it. They have a whole section where people can get help with legal disputes. I have received some good advice there in the past. :-)

will do 006! thanks!

wow its EBAY
who cares

Wow its a spammer, who cares...

he obviously doesnt want to get sued, so dont comment unless youre being helpful, thats what this forum is all about

Actually, they could if they wanted to. If you were to start up TheNFLIsTheBest.com and speak nothing but good of the NFL, they could still shut you down for using their name in your domain.

Actually- no. read my comments earlier in the thread. There are many instances where domain names contain references to copyrighted material. Courts have ruled that it is OK as long as reasonable people won't actually confuse your site with the known site. The problem is that it is hard to get it to that point, and most ISP's will yank sites like that at the first sign of a lawsuit, despite someone's willingness to fight the lawsuit, so you must fight them all the way, and outspend them. Sites like eBay have shown that they are willing to outspend anyone in order to protect their name, since few people are actually willing/able to take it all the way.

I own the domain hostyou.co.uk but a few months ago got a letter from a firm of Belgium solicitors, to cut a long story short their client hostyou.be own the trademark "hostyou" so they said I can't use it and if I continue to they would take me to court, even though I got the domain before they was granted the trademark they would still fight me to stop me using it, at the end of the day if these guys get any legal person involved they mean business, I couldn't afford to see where I stand without running in to loads of cost, give it up and put it down to experience.

I will not give up the domain unless they are willing to pay, but they have no need to so it's a catch 22 :(

But if you have plenty of money then go for it and good luck

well, i think you should fight it because i have and won. they've dropped everything.