24
Jul/03

More on Atlanta Braves Tissue Covers and the DMCA


A loyal Trademark Blog reader writes in to comment on the Atlanta Braves tissue box cover matter reproted below.  Major League Baseball had written to Ebay and asked them to remove the products which were manufactured from allegedly ‘licensed’ fabric but the items themselves (such as aprons and tissue box covers) were not authorized by MLB.  The reader notes

The fact that eBay automatically terminates auctions based on a TM claim, but doesn’t provide an opportunity for the auctioneer to file a counternotice, is an interesting difference between the way TM and (c) claims are handled.

It also raises a good practice tip when sending (or responding) to DMCA notice.

The DMCA requires that the copyright owner assert a “good faith” claim that an act of infringement has occurred.  Separately, DMCA requires that there be a statement under penalty of perjury that the person submitting the notice has authority to assert claims on behalf of the copyright owner.  There is NOT a requirement that the claimant assert, under penalty of perjury, that an act of infringement has occurred.
 However, I think the form used by many copyright owners mistakenly uses the “under penalty of perjury” language when discussing the substance of the claim.
 
 Here, it looks as if eBay’s automated notice tells auctioneers that eBay is taking down an auction because a rights owner has asserted “under penalty of perjury” that an act of infringement has occurred.  Some overzealous anti-counterfeiting lawyer is going to get himself in trouble one day when he submits a dubious claim “under penalty of perjury”, instead of based on a “good faith belief”.  

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