eBay Wins Appeal Vs. Perfume Bay

[Dave Zan]

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.

Sorry, but we don't know anything about those consumers to even reasonably
conclude they're on drugs or whatever to confuse Perfume Bay with eBay. If
you haven't read the decision that John and I posted previously, then might I
suggest you do so to at least try to fully understand what happened?

Folks, let's not forget that this dispute was resolved due to considering all of
the facts presented. John's clearer than crystal explanation ought to at least
help us understand what went on, especially the parts he put in bold.

Naturally, whether a verdict is fair or not depends on which side of the scales
of Lady Justice one is on.

 

[nametrader]

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

Very true! the 'bay' is a generic non generic in real world! because of trademarks. I am not sure how many thousands of more words are nicely coated with these trademarks.

We just have to learn to co-exist I guess

 

[akcampbell]

PerfumeBay, Perfumebay, or Perfume Bay are in my mind not closely enough related to eBay to justify the decision reached by the Court. It's a case of weight of money, the best legal representation, and vested interests counting for more than common sense.

If I had been the Judge I would have told eBay to pay both side's costs and to come back and see me when Perfumebay set up shop as an online auction company.

Historically, people sailed their ships into bays to do business. They did that 1000's of years before eBay arrived on the scene. I don't think a product name ending in "e" followed by bay should be confusing to customers. To me that's fair game.

If somebody set up a book related business with the word Amazon in, I think they should get protection. But Amazon wouldn't claim somebody can't call themselves Amazon Flowers because Amazon sell books on flowers so I don't get the thing with eBay and Perfume, they are an auction site selling 1,000's of different things.

It would be beyond a joke for somebody to set up a classified ads listing site called eTrade, eMart, or eBuy, slot the customary e in front to trademark a text string that is 85% generic, make money out of it, and then say you can't set up sites called AppleTrade selling apples, OrangeMart selling oranges or GrapeBuy selling grapes.

Domain fascism like this damages the interests of all amateur domainers. Next the US Courts will be saying that big US companies with generic .coms own their keyword and anybody holding it alternative extensions can't use it.

 

[DNQuest.com]

Did you even read the whole thread?? There is more to this than just the name itself.

 

[akcampbell]

Yes I did. From page 1 through to 3 ,every post. Every point raised against the owner of this domain, I didn't agree with. Can't somebody disagree with the consensus here without missing something?

 

[Dave Zan]

If somebody set up a book related business with the word Amazon in, I think they should get protection.

Why?

 

[akcampbell]

Because Amazon is a registered trademark and the word Amazon has nothing to do with books so it's fair for Amazon to stake out the book market for themselves. eBay is an online auction company, they shouldn't be able to claim trademark dibs on the text string ebay over every single item that one of their customers chooses to sell. That is unreasonable. If PerfumeBay auctioned perfume, I would say fair enough, eBay should get protection but as far as I know they just sold the perfume at a fixed price. eBay's position is further weakened because a Bay is a generic phrase and as I said people have been sailing their boats into bays to trade goods, including perfume, for 1,000's of years. All eBay they have done is bolt an "e" onto the generic word Bay as 1,000 other punters have done with other generic words so they can trademark them. That's fine but they shouldn't start reversing their juggernaut into every other word followed by the word Bay just because that word has an e on the end.

 

[Dave Zan]

eBay is an online auction company, they shouldn't be able to claim trademark dibs on the text string ebay over every single item that one of their customers chooses to sell. That is unreasonable. If PerfumeBay auctioned perfume, I would say fair enough, eBay should get protection but as far as I know they just sold the perfume at a fixed price. eBay's position is further weakened because a Bay is a generic phrase and as I said people have been sailing their boats into bays to trade goods, including perfume, for 1,000's of years. All eBay they have done is bolt an "e" onto the generic word Bay as 1,000 other punters have done with other generic words so they can trademark them. That's fine but they shouldn't start reversing their juggernaut into every other word followed by the word Bay just because that word has an e on the end.

Actually I quoted the wrong portion of your previous post when I asked why.
Forget Amazon.

But let me repeat what's been emphasized here already: eBay did not sue the
other party just because their domain names contained the word bay or ebay.
They sued because there was consumer confusion, which they eventually
had proven in Court.

The decision itself says so. John already plucked out and emphasized more or
less the relevant portions explaining why it was decided the way it was.

On the side, I've read of a few in other places where eBay actually left some
of them alone. One thing I observed (and this is just a personal one) is that a
few of them showed they're actively using them that's unrelated to eBay.

Maybe they've learned. Who knows?

 

[akcampbell]

PerfumeBay and eBay are only confusingly similar if you are very very stupid. Any big company can wheel out a couple of village idiots to prove a point like this in Court.

A more objective test of confusingly similar would be to look at the % of eBay bound traffic that was lost to PerfumeBay. Even if you assumed every PerfumeBay hit was really heading for eBay, the % we are talking about would be miniscule.

When I was 5 years old I thought Jack Nicklaus and Jack Nicholson were the same person. Should Courts rule on the basis of that sort of ignorance? I don't think so. e-Bay, eBays, eeBay, eBayripoff are all confusingly similar to eBay, PerfumeBay is nothing like eBay.

 

[Theo]

Because Amazon is a registered trademark and the word Amazon has nothing to do with books so it's fair for Amazon to stake out the book market for themselves. eBay is an online auction company, they shouldn't be able to claim trademark dibs on the text string ebay over every single item that one of their customers chooses to sell. That is unreasonable. If PerfumeBay auctioned perfume, I would say fair enough, eBay should get protection but as far as I know they just sold the perfume at a fixed price. eBay's position is further weakened because a Bay is a generic phrase and as I said people have been sailing their boats into bays to trade goods, including perfume, for 1,000's of years. All eBay they have done is bolt an "e" onto the generic word Bay as 1,000 other punters have done with other generic words so they can trademark them. That's fine but they shouldn't start reversing their juggernaut into every other word followed by the word Bay just because that word has an e on the end.

Your entire approach is the reason people should consult with attorneys prior to making a bad business decision when it comes down to intellectual property and trademarks.

 

[Dave Zan]

PerfumeBay and eBay are only confusingly similar if you are very very stupid.

One of the things John quoted from the decision had said "prior to the lawsuit,
Tran learned through her customer service personnel that people were calling
Perfumebay asking if it was associated with eBay ." Was it possible for eBay to
"wheel out a couple of village idiots to prove a point like this in Court" as you
said?

Also, there's more to that as John also clearly pointed out:

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 . . .”

Don't take my word for it. The details are all in the decision and more.

Like I said, the bottom line is eBay proved its claims and Perfumebay didn't. The
latter just chose not to fight it any further than it has already.

BTW, Acroplex, bay.com appears to be registered 2 years before eBay came into
existence.

 

[jberryhill]

If PerfumeBay auctioned perfume, I would say fair enough, eBay should get protection but as far as I know they just sold the perfume at a fixed price.

Well then you don't know much.

Tran started out on eBay, became a "power seller" in eBay's marketplace, and then decided to call her business Perfume Bay. Her entire business, and her selection of the name arose from her association with eBay.

No, you didn't read the whole thread.

 

[akcampbell]

Obviously, the law as interpreted found in favour of eBay in this case. There is no point wheeling out the legal points and telling me I didn't read the thread properly. I read it, I just think they are all lame points.

I'm not saying legally PerfumeBay should have won because I don't pretend to be a legal expert but from the point of view of what is fair and reasonable, PerfumeBay got screwed.

I regard it as irrelevant that PerfumeBay's owner had been a Power Seller on eBay. So what? Everybody who uses the Internet has heard of eBay, you don't have to be a Powerseller to be in that position.

The capitalized b is a red herring. Again, so what? eBay capitalised the b for the same reason as PerfumeBay capitalised it, to emphasise the generic trading word Bay.

The "Read The Thread Again Bozo" retort people have on this tread is grating. You can see why people don't bother contributing to threads like when big heads who do this sort of thing for a living are so quick to put people down.

Legal discussions post-verdict are about what is right and wrong, not just about what was held by a Court. That's why we're discussing this in the first place isn't it, to see who agrees and who disagrees with the legal decision?

 

[DNQuest.com]

I regard it as irrelevant that PerfumeBay's owner had been a Power Seller on eBay. So what? Everybody who uses the Internet has heard of eBay, you don't have to be a Powerseller to be in that position.

exactly, everyone heard of ebay, and what she did was try to be cute with incorporating ebay into the domain name. And lame is you reason for picking that name

The capitalized b is a red herring. Again, so what? eBay capitalised the b for the same reason as PerfumeBay capitalised it, to emphasise the generic trading word Bay.

Again, ebay is not generic, neither is the "B" emphasis. The woman used it in a way that was confusing to the public. She even admitted that her own customer service reps receive calls asking if they were affiliated with ebay. TMs are in place to avoid public confusion.

Legal discussions post-verdict are about what is right and wrong, not just about what was held by a Court. That's why we're discussing this in the first place isn't it, to see who agrees and who disagrees with the legal decision?

Yes, we do discuss here, but when someone completely disregards the facts and only concentrates on one portion of the case (the "bay"), it does get tough trying to discuss matters. You may not realize it, but one of the foremost authoritative figures in this field responded on this post (and it's not me). So it isn't just a bunch of wannabes. I do not believe this woman got screwed, actually, she should be happy that she was able to utilize the name for so many years and make some good $$$$ from it. Now she can rebrand and make her own name.

 

[nameadvertising.com]

i love it when these big corporations do not get rights to their namesakes in .cn , .fr extensions to name a few. what is right in the U.S should be right everywhere else...

this is just a case of the bully hitting the little guy ( in this case, the little gal) where it hurts most. being a power seller is not something granted by ebay to someone for free. you gotta bust your chops to become one.

let's say i am a domain name power seller on ebay and move on to independently post my sales on a new site domainsbay.com

sour grapes would win again. money talks baby. it sways opinions. only the likes of apple who blatantly frowned upon cisco's iphone mark can continue to be in business...

the e in perfume is just an excuse. they'd come after her even if she had the site named perfumesbay...

i'd be confused with mebay.com, but to confuse perfumebay with ebay. this is as dumb as it gets. what a screwup? i am so confused i don't know if i am actually on ebay. help!

laughable!

 

[Gerry]

PerfumeBay and eBay are only confusingly similar if you are very very stupid. Any big company can wheel out a couple of village idiots to prove a point like this in Court.

The idiot that proved the point (and the case for eBay) was the defendant herself.

But, she did swear to tell the truth so I have to give her some credit.

 

[Dave Zan]

but from the point of view of what is fair and reasonable, PerfumeBay got screwed.

From the point of view of what is fair and reasonable for, say, Perfume Bay or
eBay? When two parties can't agree what is fair and reasonable, don't courts
come in as neutral parties to resolve the issue if someone wants to force it?

It's fine you don't agree with the decision. If you're going to tell others about
this, at least tell them there's a copy of the decision online for them to check
and decide for themselves.

BTW, interesting you typed the other party above as "PerfumeBay".

But, she did swear to tell the truth so I have to give her some credit.

Agreed. At least she didn't pay eBay's costs on appeal.

 

[rubardi1]

Definitely sound like a mistrial. I would say that Perfume bay would NOT cause me to mistake it for anything linked to ebay. Ebay a big lumbering commerce thing.

 

[Dave Zan]

I would say that Perfume bay would NOT cause me to mistake it for anything linked to ebay. Ebay a big lumbering commerce thing.

Maybe. But that didn't stop others from "stupidly" believing Perfume Bay was
eBay or associated with them, as the decision itself later showed.

It's probably me, but why are some folks disagreeing by seemingly considering
only one detail when the decision showed it's a combination of things that
caused confusion? Is it...scotoma or something? (whatever it's called...)

Should you ask why I posted this in the first place, it's so people can maybe
learn a thing or 2 from someone else's "mistake".

 

[Gerry]

Maybe. But that didn't stop others from "stupidly" believing Perfume Bay was
eBay or associated with them, as the decision itself later showed.

That's why I just love that phrase, "confusingly similar"...almost a catch-all type of thing.