eBay Wins Appeal Vs. Perfume Bay

[acesfull]

But I do know this, if you get a C&D because of the example you gave and you are not competing against or trying to pull a fast one, once you respond to them and explain your situation, they do leave you alone.

Doesn't seem to have stopped them from steamrolling PerfumeBay.com, although I don't know all the details.

 

[DNQuest.com]

Doesn't seem to have stopped them from steamrolling PerfumeBay.com, although I don't know all the details.

If you don't know the details, then how do you know they were steamrolled or not? jw

 

[acesfull]

If you don't know the details, then how do you know they were steamrolled or not? jw

Okay, fill me in. Just seems to me that Perfume Bay is not an infringement on eBay.

 

[Gerry]

Actually, I believe I defended your rights to that name in a thread here or somewhere else.

No offense intended. Just trying to prove a point.

The search system that alerts eBay (and anyone else for that matter) is automated...alerts them anytime those letters are regged...but the C&D and registered letter I got was not automated and very personalized. :smilewinkgrin:

What I get a bigger kick out of is the selling blatantly TM violated eBay domains on eBay. Currently on:

eBayMoneyClub.com
eBay-Tip.com
eBaysAList.com
Listings-eBay.com

It reminds me of the old saying, "Heal thyself, doctor"

Police thyself, eBay.

 

[Shaggy]

What really gets me is not how ebay is going after these names, its the idiots on the panel that allow ebay to win these appeals!!

 

[Gerry]

What really gets me is not how ebay is going after these names, its the idiots on the panel that allow ebay to win these appeals!!

This went well beyond a WIPO or URDP to US District Court in California which is very friendly towards eBay.

I do not believe eBay has had a ruling go against them.

 

[jberryhill]

Okay, fill me in. Just seems to me that Perfume Bay is not an infringement on eBay.

There were some interesting facts here.

This does not strike me as the kind of coincidence that Maine Bays is.

First, the coast of Maine is riddled with bays - Casco, Penobscott, etc.

What is the relationship of "perfume" to "bay"?

Well, it turns out, that before this woman ever called herself Perfume Bay, she started her business by.... selling perfume on eBay.

So, how do you think she came up with the name?


http://www.ca9.uscourts.gov/ca9/newopinions.nsf/85AEE84897725D758825738A005C180E/$file/0556794.pdf?openelement

Tran testified that she developed the idea in “late 1998 or
early 1999 . . . to sell perfume from [her] parents’ company
on the internet . . .” Tran first sold perfume on eBay’s web
site. She used “five or six different user names in order to
trade on eBay,” two of which, Beautiful Perfumes and Classy
Perfumes, were web sites owned by Tran for the sale of perfume.
She continued to sell perfume on eBay until October,
2004, when Tran decided that she no longer wanted to use
eBay, because of eBay’s auction approach.

The “target customer for Perfumebay is anyone who has
access to the internet and purchases fragrances and cosmetics
. . .” Tran chose the name for the web site while she was still
selling perfume on eBay. According to Tran, she “did not
have any intention of copying eBay or trying to confuse customers
to come to Perfumebay’s web site because of eBay.”
Tran selected the first part of the name, “perfume,” as a
description of her products. She added the term “bay” because
she “envisioned a bay filled with ships importing perfumes
from all parts of the world and this bay would be the place
where perfume lovers could go to locate the selection of fragrances
. . .”

However, “there was never an image of a bay
filled with ships on [her] web site.” There were not ships on
the web site, and Tran “never explained on [her] web site at
any time that the name Perfumebay was intended to suggest
a bay into which products are brought by ship from abroad
. . .” Her web site developers “never created any kind of
graphical design for the Perfumebay web site that incorporated
a bay filled with ships . . .”

Tran acknowledged that “the Perfumebay web site has,
from time to time, displayed the Perfumebay name as one
word with a capital B . . .” Additionally, “Perfumebay sometimes
refers to itself [as] Perfume<B>ay, capitalizing the letters
P and B in one word . . .” The sign-up documentation for
affiliates “spells the Perfume<B>ay name in one word with the
P and the B capitalized . . .”

[...]

Prior to the lawsuit, Tran learned through her customer service
personnel that “people were calling Perfumebay asking
if it was associated with eBay . . .”

------

That "However" paragraph lists a number of things that might have produced a different result.

You are starting a business. You can call that business anything under the sun, out of an infinitude of possibilities. You are an eBay merchant. You "just happen" to have an independent inspiration to take your product name and stick "Bay" on the end of it.

It may be just me, but it doesn't strike me as some sort of cosmic coincidence.

 

[Gerry]

“envisioned a bay filled with ships importing perfumes
from all parts of the world and this bay would be the place
where perfume lovers could go to locate the selection of fragrances"

Precious metaphor.

So, Dr. John...having a set standard of spelling, capitalizing, ships at sail would most likely not helped in this case, correct? Afterall, she got her start on ebay and the history of her own enterprise and testimony doomed her to begin with.

It may be just me, but it doesn't strike me as some sort of cosmic coincidence.

a cosmic collision course.

 

[Theo]

Bay.com (not eBay) apparently offers comparative online store listings (including links to eBay auctions). Why is that acceptable and PerfumeBay isn't?

 

[jberryhill]

Why is that acceptable and PerfumeBay isn't?

It's all about whether consumers are confused, at the end of the day.

There was evidence of record that consumers believed Perfume Bay and eBay were related.

Her story about how she came up with the name didn't help much.

So, Dr. John...having a set standard of spelling, capitalizing, ships at sail would most likely not helped in this case, correct?

The fact that the court mentioned this kind of thing indicates that it was notable by its absence.

The court is saying that, while she has an interesting story, there seems to be a lack of objective evidence that might have been consistent with that story, while on the other hand, there are objective indications that her inspiration lay elsewhere.

 

[Gerry]

The fact that the court mentioned this kind of thing indicates that it was notable by its absence.

The court is saying that, while she has an interesting story, there seems to be a lack of objective evidence that might have been consistent with that story, while on the other hand, there are objective indications that her inspiration lay elsewhere.

Great commentary on this. Thanks!

 

[HomerJ]

eBayMoneyClub.com
eBay-Tip.com
eBaysAList.com
Listings-eBay.com

why would they go after these domains? they are not competitors. they will in the end link back to ebay. ebay may not mind these sites all that much.

 

[Gerry]

why would they go after these domains? they are not competitors. they will in the end link back to ebay. ebay may not mind these sites all that much.

Oh they do. These slipped through the cracks.

Perhaps newer regs that have not been processed for the c&d...yet.

 

[Dave Zan]

Thanks for the analysis, John. Appreciated around here.

Bottom line, eBay proved their claims while the lady didn't. Not unexpected.

I've seen other people almost immediately side with the lady on this dispute.
Too bad they didn't even bother to check further to try to understand fully
what happened, but I guess they just don't care.

Learn from this dispute, folks. There are a couple of nuggets there, some of
which John "plucked" out.

 

[Mr. Deleted]

If you owned "buyahoop.com" what would it mean? What trademark is in the domain?

 

[jberryhill]

If you want to register "buyahoop.com" and sell anything from earrings to hula hoops, that's perfectly fine.

It is also not at all analogous to the situation here.

This case was not premised on the incidental string "ebay" in "perfumebay". There was a lot more going on, and if that's not apparent upon reading the excerpt posted above, then I don't think I can make it any clearer.

 

[nametrader]

Everyone does business for profit. That is the bottom line one agrees or not.

Thanks Mr.John for explaining the situation above.

To many of us perfumebay = perfume+bay and it has nothing to do with ebay.
I think Judiciary should not show or lean towards "Favoritism" , I imagine here law is favorable to ebay.

The fact that some consumers felt perfumebay is related to ebay is true, but it is equally true that the domain perfumebay is also generic enough. In this case ebay has to back off because it is not humane to go after everybody in this kind of situations.

Also ebay has to have strength to agree that their name itself is soooooooo generic with an e attached to it in front. This company should play a fair game, not suppressing small and midsize businesses.

 

[nameadvertising.com]

It's all about whether consumers are confused, at the end of the day.

Please....

Those consumers should be on drugs to be confused like that. This is just a case of big brother molesting someone.

http://www.auctionbay.com - here is where i will get confused...

not all verdicts are fair....

there are rough cops, judges and what have you.

 

[Mr. Deleted]

If you want to register "buyahoop.com" and sell anything from earrings to hula hoops, that's perfectly fine.

It is also not at all analogous to the situation here.

This case was not premised on the incidental string "ebay" in "perfumebay". There was a lot more going on, and if that's not apparent upon reading the excerpt posted above, then I don't think I can make it any clearer.

I do understand what you are saying... I thought it had to be more to the story then just the "ebay" in the domain.

The reason I posted that is cause I know the owner of that domain, and Domain Sponsor once banned it for havving the word "yahoo" in the domain.

 

[DNQuest.com]

Also ebay has to have strength to agree that their name itself is soooooooo generic with an e attached to it in front. .

IT made a brand out of nothing and made it world known, the true essense of trademarks. Generic, give me a break.