Ina Steiner EcommerceBytes Blog
News and insight focusing on ecommerce.
by Ina Steiner, Editor of EcommerceBytes.com
Tue Apr 1 2014 22:08:30

Should eBay Provide Seller Identities in Brand Disputes?

By: Ina Steiner

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May Kay Inc. is asking a court for the authority to depose eBay representatives in order to learn the identities of sellers that claim to sell genuine Mary Kay products, according to the Dallas News. The firm has been trying to get its cosmetics off of eBay since at least as far back as 2003 when EcommerceBytes wrote about a crackdown to prevent consultants from selling on eBay.

A former consultant cited the first sale doctrine in her defense when she faced a jury in a trademark dispute with Mary Kay. (See Wednesday's Newsflash story.) But the company said she had signed a contract agreeing not to list its products on eBay.

In its battles with online sellers, the company often cites the percentage of expired products it finds for sale on eBay. For example, the Dallas News wrote, "Mary Kay listed about 50 eBay user names such as birdie60, gracefully13, frisbeegirl80 and techwarriorprincess that it says are selling products under its trademarks and copyrights. The company said the products are expired, "many years past their respective shelf lives.""

Interestingly, a search of eBay this evening for the term "Mary Kay" came back with 70,392 results; a similar search on Amazon.com netted 13,139 results.

Should people be allowed to sell Mary Kay cosmetics on eBay or other venues, whether or not they have ever been consultants? Should eBay hand over the identities of sellers in trademark disputes?

Let us know what you think of first sale doctrine versus intellectual property rights.




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by: pace306 This user has validated their user name.

Tue Apr 1 22:33:54 2014

... Mary Kay is going about it the wrong way ... instead of suing eBay, just offer to pay the fuel costs for JD's Lear for a year.

THAT will get VERO into action (via verowatch.com) and PRESTO (like other manufacturers who have done so) eBay will start removing sellers of said product from the listings citing MC019 or MC999 Trademark or Copyright issues.

eBay is a 1 trick pony.

Will eBay (if MK doesnt bribe them) turn over sellers names ...? IN A HEARTBEAT THEY WILL!

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by: Steevo This user has validated their user name.

Tue Apr 1 22:41:55 2014

Here in the US anyone is allowed to sell anything they acquired legally. That's the first sale doctrine, and any manufacturer who presses that in court will lose.

Should ebay give up the identities of those who list such items?  Yeah, if they are sued and receive a discovery demand, they have nowhere to go on that.  

It's really no question as to whether they should. They have no alternative.  If they don't they will be sanctioned. Maybe $500 a day for the first 5 days, after that maybe A judge would fine them $5,000 a day.  

After that, the ebay rep might be thrown in jail until they cooperate.  All the time at $5000 a day. It'd never happen. It's just illegal.

So there is no question as to whether ebay will comply with discovery.  

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This user has validated their user name. by: Philip Cohen
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Wed Apr 2 06:10:03 2014

First of all, the Mary Kay matter is not about a prohibition on reselling, it is about a commercial contractual arrangement between Mary Kay and her authorized consultants that specifies that, if they are supplied with product, they agree not to resell (and to not supply anyone else to resell) that product on eBay.

Apparently commercial quantities of this product are appearing on eBay and Mary Kay appears to be interested to see it that product is being sold by or is being sourced from authorised consultants in breach of that commercial contract.

I’m not sure that if you have been supplied goods for resale on such a commercial contractual basis, whereby you have specifically agreed to not resell on eBay, the First Sale Doctrine would protect you.

Such an agreement is a commercial contractual matter, not a consumer matter, and I suspect that only if you acquired the goods without having specifically agreed to such a no-eBay-selling clause—as would be the case with a simple retail purchase—could you then resell the product on eBay and be protected by the First Sale Doctrine.

Regardless, there is no way that eBay would disclose these sellers' identities without a court order because eBay would not want to put at risk the FVFs from any of this selling—regardless that it may be in breach of someone else’s contract, or the product be possibly ten years past its “best by” date. eBay has often demonstrated that they will never voluntarily do anything to help anyone—except themselves. After all, at the end of the day, eBay is “only a venue”—LOL …

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by: rooftop This user has validated their user name.

Wed Apr 2 06:11:36 2014

Mary Kay should mind it's own business .
You can't have your cake and still have it after it's eaten
Once a person or a business sells an item , it is not theirs after the sale .
They are selling the product and not leasing it .
If Mary Kay doesn't want any one to re-sell their products , the simple solution is , don't sell it in the first place .
If people are buying the Mary Kay products that is good sign that they might purchase more and the more that buyers purchase the product , the more that Mary Kay should make in profits .
Mary Kay has no right to asked another business for the names of people or businesses that are re-selling their product as that is a privacy issue between two entities that May Kay has no legal connection with .
If I sell my house to someone and the buyer wants to re-seller the house to someone else , I have no right to demand from the real estate agent all the personal details of those involved in the transaction .  

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This user has validated their user name. by: Rexford

Wed Apr 2 06:41:52 2014

If corporations keep running this country and continue to have it their way, I have a sneaking suspicion that the First Sale Doctrine will eventually go away.

eBay already favors the big boys, as do many other ecommerce sites.

I would love to know what volume of business Mary Kay is (supposedly) losing over this though.  Is this an attempt to protect their brand or is it just greed?

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This user has validated their user name. by: Basset

Wed Apr 2 06:52:57 2014

Friends & acquaintances have sold Mary Kay, Pampered Chef, Partylite, Lia Sophia, etc...  None were allowed to sell on eBay or online venues & had to sign contracts.  

Yet throughout the years I have picked up new, unopened items of Pampered Chef & Partylite at estate sales & some I have resold without ever having worked for that brand.  Also seen but not purchased: tons of Mary Kay or Avon still NIB at estate & garage sales. Sometimes there is literally a mountain of the stuff available for anyone to purchase.

I don't know if the boxes for these brands say ''not for resale'' but many of the ''Gift with Purchase'' sample size cosmetics samples that are hugely popular on eBay say Not for Resale.  Yet there they are.



I'm guilty of counting on eBay sellers to keep me supplied with my favorite Partylite votive candles - Let's face it, not everyone wants to be forced to have a party just to have access to a product they like.

With the first sale doctrine front and center, enforcement has to be a huge time-consuming and expensive challenge to weed out who signed a contract and who did not - even if eBay provided a list of names.

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This user has validated their user name. by: Anonymous Annie
Web Site

Wed Apr 2 07:39:04 2014

Here's Something Worth Noting: http://bit.ly/1dR09zV

Headline at URL: “Sell By” And “Best By” Dates on Food Are Basically Made Up—But Hard to Get Rid Of

I imagine that the same thing applies to cosmetics as well.

(Shortened URL leads to: http://www.smithsonianmag.com/smart-news/sell-and-best-dates-food-are-
basically-made-hard-get-rid-180950304/?no-ist)

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by: RCL This user has validated their user name.

Wed Apr 2 09:04:42 2014

They can't sell as agents of Mary Kay, but otherwise why not? I'm sure that's not really what Mary Kay wants to stop. They are likely concerned about lawsuits.

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by: RCL This user has validated their user name.

Wed Apr 2 09:07:01 2014

Another thing--to answer the question :) Only in response to a lawful discovery order.  

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by: FeelingFroggy This user has validated their user name.

Wed Apr 2 09:58:03 2014

Only with a court order.

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by: Steevo This user has validated their user name.

Wed Apr 2 10:05:25 2014

If the ebay seller did sign a contract then the accusation would be ''Tortuous Breach'', but only if the ebay seller is a party to that contract.

However, if I were to buy Mary Kay cosmetics at a swapmeet, and I were to put them on ebay, I could thumb my nose at Mary Kay.  Since I am not a party to any such agreement.  And I may not know whom I bought that stuff from.

Come to think of it, I want to buy $10,000 worth of Mary Kay products on that basis.  It'll be fun! Sue me, Mary Kay.  I'll counter sue for malicious prosecution.  

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by: Gina This user has validated their user name.

Wed Apr 2 11:21:40 2014

would eBay screw it's sellers?  HELL YA!

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by: exdwh This user has validated their user name.

Wed Apr 2 11:56:15 2014

Wouldn't it be easier for Mary Kay to just buy something from the suspect sellers? They could use the name and address from the return address.

--David

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by: pace306 This user has validated their user name.

Wed Apr 2 11:59:55 2014

Yes legally you can resell anything legally obtained that doesnt violate eBay ruled such as Nazi material, endangered animals etc on eBay.

The issue here isnt FSD or Lanham. eBay has NEVER had any qualms violating a sellers rights when its come to violating those laws.

VERO admits it doesnt know the laws, understand them or even care (Ive got emails that state just that). When they get a fax claiming a suposed violation, they spring into action.

eBay has always been the instrument of any manufactorer to get those items removed.

eBay doesnt look at the complaints to even see if they make sence. Vero regulations (the actual agreement eBAy has with VERO participants) cuts eBay out of the equation altogether. Its tit for tat. eBay does the job of removing items in exchange for not being possibly sued.

eBay doesnt have seller protection in any fashion - whether its returns, refunds, copyright/trademark or in any other area. What they do have is pure "lip service" to those ideas. Anyone (myself included) who has tangled with eBay (and you can ask my attornies) can attest to that very fact.

eBay SHOULD only disclose private information under court order - but knowing eBay they will fold like a house of cards.

Lets see what happenes - let see them suprise us all!

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by: ebay for dummies This user has validated their user name.

Wed Apr 2 12:38:53 2014

This isn't about money for Mary Kay, it's about control.  Mary Kay does have contractual agreements with their outside sales representatives to sell through a specific channel (Door to door retail).  I'm sure some of their sales representatives are not too honest and decided to earn some extra money by selling Mary Kay cosmetics through ebay's channel instead on top of selling through their outside channels as well. One would think well hey Mary Kay is selling product whether it's though retail or ebay so what's the problem here?  The problem is about undermining Mary Kay's structure of controlled distribution and the trust they have with their existing "honest" sale representatives out in the field.  A better way would be for Mary Kay imbed custom bar codes, tags, or labeling to identify the culprits instead of trying to force ebay to give up very private and personal information which would of course undermine the trust both sellers and even buyers have with their personal information.

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by: RCL This user has validated their user name.

Wed Apr 2 14:35:00 2014

Haaaaaaaaaaaaaahaaaaaaaaaaa DAVE: good one :)

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by: mazelgirl This user has validated their user name.

Wed Apr 2 22:46:28 2014

If they want to know who is selling Mary Kay on an active basis all they have to do is buy the product--you'll get the name on the return address. That would be cheaper for them then litigation with eBay--eBay generally doesn't lose this sort of thing-except in France.

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by: Moonwishes This user has validated their user name.
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Wed Apr 2 23:04:56 2014

Putting aside those that find their Mary Kay stuff at estate sales and whatever, which I agree the buyer has every right to sell wherever/whenever they like, those that are legitimate Mary Kay consultants/sellers and have signed an agreement that they would not sell on eBay. To me I see only one issue here and that is moral ethics. Either you will do as you promise or you don't and if you don't how much else are you going to lie about and be dishonest about? If nothing else, our country is going to the dogs due to the lack of moral fiber in so many of it's citizens (including eBay 'leader' and the rest of his board).   I think Mary Kay has every right to know if their consultants are doing what they promised or not. If you can't be trusted with the little things, should you be trusted with the bigger things in life?

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by: csonnier This user has validated their user name.

Wed Apr 2 23:06:08 2014

As owner of my own brand, I've dealt with this issue on eBay and Amazon and that irritating Sears site. VERO has always been helpful and since I'm such a small business,  I don't care to know the offending unauthorized sellers' identities.  However if I did decide to pursue the legal action afforded my trademarked business and sue for damages, as I believe Mary Kay is pursuing,  I would fully anticipate the court ordering the disclosure of the names of the offenders. This is more an issue of copyright and trademark infringement and Federal laws apply. Huge damage awards are at stake for Mary Kay and I don't think eBay will be anythung less than cooperative.  

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by: rachel This user has validated their user name.

Wed Apr 2 23:56:56 2014

About 8 to 10 years Tiffany bought a lot of items on eBay, this is how they sued sellers. Others wait to gather info from customers & if they see a repeat offender trend name they might check that way. I think Mary Kay is trying to find the easy way out They are accusing people but the burden of proof is on Mary Kay since California ruled eBay is just a venue, once again Tiffany tried to bring eBay to court because they have the deep pockets but instead they must sue sellers.   Unless the US Supreme Court rules otherwise if you buy something it belongs to you and you can sell it as already stated but if it is fake, i.e load up Mary Kay with fake items for example which seems highly unlikely! eBay already has the returns accepted situation if not as described.  Mary Kay may not be doing so well me thinks. When things are going great no one cares about what EBAY sellers are doing. Weird how they say bad expiry dates though...do these sellers advertise it or take photos of the dates? Who would buy such an item or is this a way to make the courts feel it is a   ''public safety issue?'' I think they want to scare eBay sellers into thinking their IDs are not sacred but of course they can be tracked down as has been said on the forum and more cheaply without the courts. Me thinks it's a publicity stunt so MK followers will say ''eBay items are expired and dangerous'' so they will buy from the reps. It's nice that they protect their reps or is it the company itself that is suffering from the whole ONLINE deal - like we all are now really. So much competition so many products. Email...

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