On eBay With Trademarked Emblems All Over It AND In the Porsche Category

This is a dealer listing on eBay. It will be interesting to see if it's deleted or not.

eBay with emblems resized

It's way over priced, but then it is a:

"super slick roadster started life as a common people mover"

"Paraded only weekend miles since its grand transformation"

"wears sinuous Vintage Speedsters Ultra Wide Body fiberglass "

Has a "roadster's storied boxer motor" with "boisterous performance"

"power is countered by a predictable combination of discs and drums"

"Porsche-branded wheels, which twist 225/45ZR17 Nexen N3000s in front of 255/40ZR17 Nexen N3000s"

"custom svelte interior reveals just how serious the car's aspirations are"

"Slim seats stretch tight Saddle leather under modern lap belts"

"leather-capped dash frames classy, original-style telemetry"

A promise that the new owner will "carve curves through a wood-rimmed Nardi steering wheel and a wood-capped floor shifter"

The only thing left out of this description was that he didn't start it with "it was a dark and stormy night"

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Original Post

It's a good question Robert.  It seems that the dealers who pay for special eBay accounts are not targeted, but is that because Porsche didn't report them or because eBay gives them special treatment?  It may be one of those class action type suits you hear about.  Anyone know a good attorney who would take this on a contingency basis?  Both P and E have some pretty deep pockets! 

Notwithstanding some of the above replies, almost all class action (CA) suits are litigated under a contingency basis, with plaintiffs getting a larger share of the settlement award than attorneys.  That's not because law firms are altruistic, but because they make more money that way.

Most CA settlements return more funds to the plaintiff than the attorneys representing the class, but not by an overwhelming percentage.  40% is fairly standard as attorney share, plus provable expenses.  Normally, there are several law firms involved, with one firm acting as lead attorney.

A law firm needs considerable experience in CA suits before the court will appoint them as lead counsel, and have sufficient assets and personnel to organize the investigation, conduct discovery, proceed to trial, etc.  Without provable, egregious acts by a potential defendant with sufficient assets, it would be a tough sell to find a CA firm to take on a new matter.  The person bringing the claim would need to be dedicated and prepared to spend long hours shopping his/her case.  It's not a job for the timid.  After a CA firm accepts a case, it will take several years to investigate, conduct discovery, litigate, settle, and pay off claimants.

In extreme cases, such as Levi-Strauss CA settlements, the number of the class victims is so large, i.e., several million potential claimants, that a financial settlement not feasible, so alternative payments are utilized, such as discounts on future purchases.  It may cost several million dollars merely to notify the potential class of the pending case, e.g., mailing CA notice of suit to potential purchasers throughout the continental U.S., and then conduct further correspondence with them.  Example: Have you ever purchased Levi's jeans during the period 1990 and 2002?  Do you have receipts for said purchases?  and on and on and on.  There will be an office of clerks that will wade through all the correspondence, originate and maintain databases, categorize victims by degree of harm, amount of loss.

It's a system that is easy to criticize, but small amounts of loss by a litigant class with huge numbers is difficult to litigate by other means.  When a multi-state communication company, such as Ma Bell in the old days, is found to have illegally charged customers 89 cents/month for a number of years, no single plaintiff will ever bring suit, as it's not cost-effective.  A CA suit becomes the only practical alternative.

When a state, such as California, attempts to minimize the % of award a CA firm can charge, or enact any tort reform laws, the trial attorneys spend millions in advertising, alerting taxpayers of the unintended harm such legislation will cause.  Not surprisingly, the trial attorneys don't identify themselves as such.  They will adopt a catchy phrase for their newly-formed PAC or LLC, such as Californians Against Government Interference or something similar.  California voters have always been swayed by the trial attorneys' efforts in these matters to date.  

 

I wasn't thinking a class action lawsuit. I was thinking more David vs Goliath. David i.e. Troy, has a legitimate and legal business of selling replicas. He follows the rules as required by eBay which were thrust upon them by Porsche and yet Goliath i.e. Porsche, comes along and squashes his legal right to sell a product. Or sue eBay for interfering in your right to sell a lawful product in a lawful way.

eBay sells thousands, if not tens of thousands, of counterfeit items everyday and does nothing or very little to stop it. I have reported dozens of counterfeit items and have made dozens of reports regarding ads that were obvious scams. I've reported ads offering real Patek Philippe watches for pennies on the dollar which are obvious fakes and the watches sell without the ad ever being taken off their site.

This sounds like collusion to me so sue both eBay and Porsche for interfering in your right to do business selling replicas.

Usually the only way your ad gets taken off through vero eBay is if you actually have bids, buy it nows don’t get pulled.  The trick is to use “Speedster” but not Porsche anything, steering wheel emblem, scripts, decals, seatbelts, blur them out or shoot at angles, anything with Porsche will get your hand slapped. Or you can take your chances and put it under Volkswagen category. That’s usually what I do or replica as well.

The problem is it falls under “Likeness”. You are using “Porsche” likeness/image resembleance to sell your car/product without monetary compensation so they will always win.  Look st fiero Mera with the 308.  Enzo Ferrari put them right out of business.  Same thing with Meyers Manx, if you can’t prove it’s a “Manx” with certification and authenticity, you must use the word Manx style Or get your hand slapped too.

@Fireman2343

You joined this discussion a little late and, based on what you just posted, I don't think you have been following my eBay adventures very closely.  I have not used auction style ads on eBay for several years, they are all fixed price with a Buy It Now option, so I don't know we're your "buy it nows don't get pulled" comment is coming from or why you feel your "trick" will work for everyone. 

There have been at least 4 of my ads that have been deleted and 3 of them did not contain the word Porsche, Carrera, Spyder or Porsche Carrera, the words that the Porsche attorney told me in writing were trademarked. None of those 3 had images that showed any of the trademarks.

My ads have been in the Replica Makes category and the closest I've come to any Porsche references is the word Speedster and the number 356.

Most of the the ads that I see not being deleted are ads by car dealers who have paid thousands of dollars for special eBay accounts that allow them to post unlimited numbers of cars.  I pointed out one of those ads to an eBay Vero team member in a phone conversation and she told me that dealers with those paid accounts have different rules than a regular eBay member like me.

 

Troy, I doubt that anyone at eBay has it in for you.

It's more likely an algorithm that does.

If I were the unfortunate middle-level manager at a company the size of eBay who was tasked with weeding out the riff-raff causing legal problems for upper management, I know what I'd do.

Have IT figure out a way to deal with it.

It's simple enough to build a filter that scans all new ads for a hot list of 'trouble' words. You might, for example, have problems selling parts on eBay for old Ford Escorts if the name of your business is 'Escort Service'.

Obvious? Sure. But it's also just as easy to add to the 'trouble' list the account of any ad placer who had previously had an ad pulled for any reason. So, if they've contacted you once, it's a lot more likely you'll be hearing from them again.

And I was just shocked to learn that there are different rules for businesses that pay eBay thousands in fees. Doesn't eBay realize that this is a democracy, where money plays no role in how rules and laws are written or enforced?

Someone should teach them a lesson in just how things work in Amurica.

 

Sorry, but both Troy and Majorkahuna mentioned class action suits in the above thread, so I focused on that aspect of a civil suit.

As far as hiring a private lawyer as a private plaintiff in this cause of action, please be aware that the less likely the matter will be resolved in plaintiff's favor, the less likely an attorney will take the case on a contingency basis.  Not only must the facts and the law be in plaintiff's favor, but the extent of damages must be high enough that the expected fee to counsel would be likely.  

Think of the preparation involved.  Discovery alone would take months, as any attorney would want all relevant documents/emails, etc. involving other eBay customers in similar situations, those whose ads had been accepted, those whose ads had been rejected, etc.  eBay's attorneys would likely send WAY more than plaintiff asked for, increasing the time it will take to go through and analyze the docs the court ordered the Defendant to produce.

I'm assuming from Troy's prior posts on this subject that a simple letter from a local attorney will be ineffective, as Troy has posted.  Every potential litigant is faced with the same dilemma.  How much is it worth to me to proceed?  I can assure you that it would be extremely difficult to find a competent attorney or firm to take this case on a contingency basis for a few reasons:  eBay would fight to make the judgement applicable only to Troy, not to the general eBay customers in general.  Settlement negotiations would make it clear that eBay would not admit fault and any settlement to Troy would remain confidential.

You can see where this is going.  Troy may be able to prove damages, but the amount would not be sufficient for a firm to proceed unless the client was paying them on an hourly basis.  I would not be surprised to discover that a large firm, with staff, experience, and capabilities of mounting a suit like this would require several hundred thousand dollars to proceed with the discovery process, and that would not include costs of trial.  

So what else can you do Troy ? Create a form/complaint letter to the Porsche Attorney and E-Bay every time  you see a discrepancy ? Do it over and over and over ? What a PIA ! As usual, the small guy gets the shaft ! What about small claims ? I once took VW of America SCC and was awarded what I was asking for. I still had to take them back in again to actually get paid though. The judge actually increased the payment too !

Bruce

Troy

I understand your frustration with Porsche and eBay. It seems you are singled out while others are passed by. I wonder if a different approach might work ie:

For sale: A tribute vehicle professionly built to reflect one of the greatest automobiles ever made by the iconic company Porsche. Never has any company like Porsche dominate the racing circuits yada yada yada....

Praising Porsche with a tribute might be more acceptable that a replica or imitation.

I'm just say'n.

Hi,

From a European legal viewpoint on replica's, using a 550 as example.

A car brand con only take action against replicas in case of :

1. Trademark infringement : the use of name tags (Porsche, Spyder), logos (the Porsche shield), on replicas. TM registration can be renewed indefinitely. Porsche, Spyder and porscheshield are registered and still protected. (but see info below)

However, the form/look of a car is inherent to 2. Design registration registered for 5 years with option to be renewed 4 x 5 years, for a total of 25 years. 

3. Copyright : is only applicable to works of arts (books, music, paintings, sculptures) We may consider a 550 as a work of art, but it is legally "just" a car.

4. Patent : technology innovations are protected under that system and can not be copied. As long as you don't copy Porsche technology and put it onto a replica, you're safe.

In short : a replica owner can sell his replica car of brand X (Beck, etc..) as such, as long as he doesn't sell it as a Porsche. No law forbids a replica owner to mention that the replica is a tribute to an iconic Porsche model and is not an exact copy. Legally a replica owner could even put Porsche and Spyder emblems and Porsche shield on his car, BUT ..... in this case I would strongly advise you purchase them from Porsche directly. Using authentic Porsche purchased material, you are not infringing TM on a replica because Porsche is not loosing money out of the use of their TM names, as you purchased it from them : you have just put authentic Porsche material on a Porsche replica.

However, when you sell the car, do not tempt Porsche : take away all Porsche material and replace back the original badges etc... and advertise it as a Brand X replica of Porsche.

As to professionals in this market : Here another aspect comes into action : the intend to make profit !!! Not a single replica builder sells their replicas with Porsche emblems or names on it, but they do intent to make profit out of the fact that their car looks like a Porsche. But then.... if the car has no valid Design registration (point 2 above) then they are not breaking the law.

All this in theory, because if Porsche sees an add anywhere of a replica on a website, and contact the website, I'm sure the website will not even argue with Porsche and just delete the post, unless the seller has also mentioned to the website in question that they would take legal action against the website for removing the ad without legal ground.

In our regional Porsche club, managed by the local PC,  we have 1 guy coming to events with his Chamonix (Brasil) 550 replica with Porsche emblems etc... He's a member just like all of us !!!

Personally I think Porsche has bigger issues that 356/550 replicas : http://carnewschina.com/2016/10/26/how-much-exactly-is-the-zotye-sr9-a-clone-of-the-porsche-macan/http://carnewschina.com/2016/10/26/how-much-exactly-is-the-zotye-sr9-a-clone-of-the-porsche-macan/

well, just wanted to add my 2 cents worth :-)

Drive happy and safely !

Patrick

 

 

Shame there was no mention of the suspension and how the Macan clone drives and handles.  Like 0-62 mph in 5.1 seconds (for the S model)? 248 hp with 273 # torque? I was ready to buy a new Macan back in December - but there weren't any 2019s available in US.  It has only been the last 2 weeks that they are showing up on snooty dealer lots. In January, Porsche dealers were still pushing 2018 as if that was the latest model (with a price to reflect).

In 2018, the Porsche factory was shut down from April to September - a whopping 6 months.  Supposedly so they could address reducing emission 50%.  Maybe that's why Macan delay?  I mean who introduces a 2019 car in Summer of 2019?  Many new cars (2020) start to show up in October of 2019 so your new Macan is already a model-year-old?

The 2019 Macan starts at under $50k. Actually, that's $49,900 plus $1050 delivery.  It is really easy to add options to make the Macan a $70k very compact CUV.  Apparently, the engine is an Audi 4 cylinder. 

The Zotye article says it differs from the Macan in that the Chinese clone has a roof rack - oops, the 2019 Macan now sports a roof rack!

Hi Troy,

Do you feel better now that the ad you posted has been cancelled/deleted. You say you don't want to report anyone, but you post their ad in a public forum and call attention to it.

You also say these car dealers play by a different set of rules, but has it ever occurred to you that they may be selling many different types of cars and occasionally they come across a replica and sell it so it slips by the Porsche police.

I don't know what else you sell on ebay, none of my business, but is it possible that since you always sell one "type" of car, that your ads are automatically flagged because the lawyers consider you a commercial seller of their product,versus a person who might sell a one off?

I don't know you and I am not trying to be a complete as.....e, but it gets old reading you whining about the same problem over and over.

Maybe it is time to try something different that may get you results, instead of repeating what you have been doing and coming on here and bitching all of the time.

 

Sorry for the rant, just my 2cents.

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