EBay threatens ShmeeBay

[yinyang]

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!

[kall]

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.

Originally Posted by netatty.com/trade.html

InterNIC, the company that grants domain names in the United States, has been forced to institute a policy regarding trademarks because of the intense vitriol surrounding the issue. Domain name applicants must now affirm that the requested name does not infringe upon the rights of any third party and that use of the name will not involve any unlawful purpose. If a dispute arises, the domain name holder is given thirty days to show that it has the right to use the trademark. If the proof is not satisfactory, the domain name will be placed on hold until the dispute is resolved through litigation or arbitration.

Trademarks can appear in portions of the URL other than the domain name. A subdirectory name can use a trademark, or a specific file name can contain a trademark. For example, the fictional URL http://www.sflegal.net/attorney/pepsi/pizzahut.html would seem to violate two trademarks. But a federal judge in California has ruled that such usage is entitled to less protection than domain names because it is merely descriptive and does not entail the likelihood of confusion that domain name usage does. As long as the content of the page does not lead to confusion about source, then there is no violation when a server uses a trademark as a descriptive indicator [in a subdirectory].

As in other areas of law, freedom of speech may be a defense to suit for violation of trademark, particularly when satire or parody is involved. The defense is limited, however, and will generally not avail when there is commercial intent or alternative avenues of communication.

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:

Originally Posted by surfspeedy

Transmission, distribution or storage of any material in violation of any applicable law or regulation is prohibited. This includes, without limitation, material protected by copyright, trademark, trade secret or other intellectual property right used without proper authorization...

We will be the sole arbiters as to what constitutes a violation of this provision.

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.

[yoyoyoyo]

Originally Posted by kall

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.

[kall]

Originally Posted by yoyoyoyo

not quite. Go to http://paypalsucks.com and read their legal justification and about their successful legal battle over the domain name

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.

[yoyoyoyo]

Originally Posted by kall

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/

[yinyang]

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.

[kall]

Originally Posted by yinyang

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.

[Dean C]

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

[mholtum]

Originally Posted by kall

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.

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.

[plubius]

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.