eBay Seller Wins Trademark Case Against Laurel Burch Artwork
By Ina Steiner
A home-based seller of handmade crafts has won a trademark lawsuit by default against an artwork licensing giant. Jennifer Heist makes handmade collectible fabric crafts, such as checkbook covers, photo holders and bookmarks, and sells them online and at craft shows. She runs the business out of her home under the name of Check Me Out. Heist has sold over 9,000 items on eBay since 2000.
In March, she filed a complaint against Laurel Burch Artworks Inc. after the company allegedly asked eBay to take down one of Heist's listings because it violated the eBay Trademark Violation - Unauthorized Item policy. The request had been made through eBay's VeRO program set up for handling such matters.
Heist sought a declaratory judgement that she had not infringed on Laurel Burch Artworks' copyright and trademark rights. She asked for damages for intentional interference with a contractual relationship (between herself and eBay); tortious interference with a prospective business relation (between herself and the eBay bidder); product disparagement; and a federal law claim for a violation of the Digital Millennium Copyright Act.
Heist represented herself and did some of her legal research on the Tabberone website belonging to Karen Dudnikov, who is also an online seller and has waged successful battles against owners of intellectual property.
Because the defendant, Jay Burch, waived service on April 3, 2008, and had yet to file an answer to the complaint, the court granted the Motion for Default Judgment and scheduled a hearing on the issue of damages for July 23, 2008. In addition, the court ordered Laurel Burch Artwork to "instruct eBay to reinstate the listings that it ordered eBay to remove on copyright and trademark grounds and to refrain from challenging any future listings by plaintiff based on the same grounds."
Heist said of the copyright fight, "This has been one of the most stressful events in my lifetime. I was a single parent for 10 years, sometimes working up to 3 jobs at a time while building an online business. To have something that I was so proud of and spent so much time on ripped out from underneath me for a wrong that I didn't commit has taken an emotional toll on both myself and my family."
There is an interesting parallel between Jennifer Heist and the woman for whom Laurel Burch Artworks was named. Both women began their entrepreneurial careers as single mothers trying to support their children. Laurel Burch, who died last year at the age of 61, made handcrafted jewelry and sold it on the street to support her children, according to her obituary in the New York Times.
Heist, now married, said that due to the stress and fear of losing her largest source of income online, she got a job in the real world. "I now work nights and weekends when before this was not necessary. I am away all night when my daughter and husband are home, I am missing things like softball games and family picnics. To this day I STILL come home and am hesitant to check my email. That fear will not go away until the strikes that were erroneously placed on my account are removed."
About the author:
Ina Steiner is co-founder and Editor of EcommerceBytes and has been reporting on ecommerce since 1999. She's a widely cited authority on marketplace selling and is author of "Turn eBay Data Into Dollars" (McGraw-Hill 2006). Her blog was featured in the book, "Blogging Heroes" (Wiley 2008). Follow her on Twitter at @ecommercebytes and send news tips to firstname.lastname@example.org.
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