1. My fiance works in a major retail store (Bloomingdale's) and regularly, he buys some items on sale which are sold to him with the discounts he is entitled to (15%). Usually, he buys me branded clothing (Lacoste, RL polos, True Religion, Ed Hardy etc...) which in turn, I often resell on eBay.
2. I had some listings removed and since, before posting any listings on eBay, I contact the brands and ask them permission to list my items. Everybody so far was cooperating except one: Ed Hardy.
3. Upon contacting them, by email, a gentleman named Adrian working in the fraud Dept. replied to me telling me that: "... We do not authorize anyone to sell on eBay and clearly you did not buy any goods from us directly... " He further added: "We don't provide authentication services since the only true way to authenticate real goods is to buy them through legitimate sources. If you have purchased this through one of our retailers, which is a legitimate source then we can confirm that you did buy them from a legit source."
4. I replied to him, telling him that yes, my items weren't purchased directly from Ed Hardy, but via one of their Authorized Reseller: Bloomingdale's. I also made reference to the First-sale doctrine and stated that under said doctrine, even though "they" were not giving their authorization to sell on eBay, I had every right to. I also added that I would be more than happy to provide them with proof of purchase and pictures of labels if needed. That pissed them off... (you'll see in a little bit)
5. Because of the struggle eBay has become, my brother offered me to make a website for me. He started to work on it, but nothing has been for sale yet as the site is not finished, but on that site... my brother included in his design some pictures (including the Ed Hardy logo) of some copyrighted work which were a couple of pictures... (I am mentioning that because of the next point). NOTHING IS CURRENTLY BEING SOLD ON THAT SITE YET!
5. Shortly after sending my email to Ed Hardy, I received an email from their fraud Dept. stating the following:
As I am sure you are aware, counterfeit manufacturers are very sophisticated and take extensive measures to copy every detail of the original garments including the tags. Please provide an invoice or receipt from Bloomingdale's reflecting the 17 t-shirts acquired by your fiancé. Also, respond back with your eBay user ID, fiancés name and the department store address which he is currently employed at.
Furthermore, Recently, we have learned that you are using our trademarks on your website, www.*******.com/SearchResults.asp?Cat=243 , to advertise your product. Users of your website are likely to believe erroneously that your website is sponsored by, associated with, or related to C.A. or Ed Hardy. You make use of our trademarks on your website page entitled “www.*******.com/SearchResults.asp?Cat=243 .
Your use of the CHRISTIAN AUDIGIER and ED HARDY marks and images constitutes infringement of our federally registered trademarks in violation of 15 U.S. § 1114, is in violation of 15 U.S.C. § 1125(a), as well as common law trademark infringement, unfair competition and trademark dilution.
On behalf of C.A., we demand that you immediately refrain from and discontinue use of CHRISTIAN AUDIGIER and ED HARDY in connection with your website; and that you refrain in the future from use of the C.A. and Ed Hardy trademark and any formatives and variations thereof. In addition we demand that you take down the copyrighted images and logos from “www.*******.com/SearchResults.asp?Cat=243 ” pages as it relates to our product. We demand that you confirm in writing that all use of our trademark has ceased and that you have taken down the above page no later than seven days from your receipt of this letter.
Unless we are advised by you or your counsel that the infringing activities have been halted, we shall take whatever action best protects our valuable trademark rights, including a notification to your ISP to shut down your entire website.
This letter is written expressly without prejudice to the rights and claims of C.A., all of which are hereby expressly reserved.
Thank you for your attention to this matter.
Ed hardy IP Enforcement Department
6. Now, based on that... I immediately contacted my brother to have him remove the pitures. However, AND THIS IS WHERE I NEED YOUR HELP:
a. Can Ed Hardy, and C.A. (Christian Audigier), prohibit me from simply using the wording: Ed Hardy and Christian Audigier from my web site (Just the names), which would sell items bearing their brands and designs, items that would have been purchased legally? (Of course I will only use my images, and I do intent to have a full disclaimer on my site stating that I am not associated in any way shape or form with them, nor that I am a Licensee. Basically, what are the preriquisites (if any) for me to be allowed to sell my items online, using their names without being or fearing being sued.
b. Do they have the legal right to ask me for my fiancé's name and info? This looks like a "fear" tactic to me. If I provide them with proof of purchase, wouldn't that be enough? Could my fiancé lose his job because of purchasing items like that and knowing that I resell them (I don't think his store policies are allowing that)
c. I tried to do the right thing by contacting them, and in their reply, they are using some "fear tactics" simply because they don't want their products being sold by people others than people holding their reselling licenses. Is it legal?
d. By trying to interfering with my business, and by prohibiting me in using simply the names "Ed Hardy" and "Christian Audigier" on my web site to sell my products, wouldn't they be violating the HOBB's act by “adversely “affecting interstate commerce” by prohibiting and/or hindering my business which is legally conducted across states lines, AND, violations of the “Monopoly Laws” (Sherman Anti-Trust Act) as well as title 18 U.S.C. § § 241 and 242, “Deprivation of Rights under law and of Civil Rights under color of law?
I mean, these people are throwing at me all this, when I simply tried to do the right thing which was asking them their authorization to list my items on eBay, without fearing one of their "frivolous" VeRO complaint...
Voila, I am done... I apologize for being that long, and I sincerely hope "someone" out there will be able to give me some advices as far as how to handle these people... and how should I address my reply to them
PS: All content (images AND names) ... for now... were removed from my website
Edited by Marylise, 27 June 2008 - 21:44.