Fighting an eBay VERO Takedown
You've received that dreaded email from eBay:
First, if your auctions were for counterfeit or illegally obtained items, go to hell. You're the root cause of this mess. Secondly, I'm not giving any legal advice - just supplying information based on my personal experiences with VERO, takedowns, counter-notices, et-all.
As Douglas Adams advised, "Don't Panic." You can find plenty of advice on the web about fighting VERO takedowns - one of the best is over at tabberones' website. It's a great resource.
So why this page? Unlike the feisty Tabberone, I can't afford the time or money hiring a lawyer would take to sue the VERO cry-babies. I have had almost 40 VERO takedowns in my eBay career. I fought all and 39 were reinstated. The one that was not? An eBay VERO loophole that can screw you over big time. More on that later.
What to do:
1) Immediately request a counter-notice. Follow procedures when doing so - don't just download one you find on the web. eBay occasionally changes these notices and the fax number you must send them to. Send email to firstname.lastname@example.org and email@example.com to request a counter-notice. Be polite and professional. Include your eBay account name, and item numbers that were taken down. You must send this from the email address you have on file with them.
You'll receive the counter-notice within 24 hours.
2) FAX the counter-notice ASAP. One counter-notice can be for several items, as long as they were all taken down by the same complaining twit. The fax number will be on the counter-notice.
NOTE: When filling out the counter-notice, use the mailing address you have on file with eBay. When eBay emails you the counter-notice, they state in the email that you have to supply your home address. That's a bold-faced LIE. I use my business address with eBay and have no legal obligation to supply my home address. It's also a violation of federal privacy laws. Don't fall for it. Use whatever address you have on file with eBay.
3) Go to http://pages.ebay.com/help/tp/programs-vero-ov.html - this is a page you would not normally find without a lot of hunting. This allows you to file an online appeal and supposedly puts eBay on notice that a VERO member is playing games. It's basically a waste of time, but part of the overall process.
4) Send an email to the VERO whiner. This email address is contained in the takedown notice eBay emailed you. They may reply, they may not. Either way it does not matter. As long as you have followed steps 1 and 2, you have already set the ball rolling. This step is just to cover your ass so you can tell eBay that you attempted to contact the VERO member. eBay gives them 5 business days to reply.
5) Wait. DO NOT RELIST THE ITEM! You will be severely punished by eBay. Suspension, banned for life, cursed, banished to perdition. The punishments seem to be random, but the bottom line is you will be kicked off eBay for a minimum of a month - possibly until the next ice age.
What happens next:
1) You'll receive an email within one business day informing you that the counter-notice was received.
2) eBay sends a copy of the counter-notice to the VERO member.
3) The law gives the VERO member 14 business days to reply. eBay gives them 10 days.
4) You will receive an email from eBay with the subject of "eBay Legal Notice - Listing Reinstatement Per Counter-Notice" explaining that a "relist" link is now available on the items you filed a counter-notice on. Sometimes it takes eBay longer than 14 business days. They have never explained why. From the email:
5) You can then relist the item(s).
The gist is that you are swearing that you are not fibbing, and that the VERO dolt that filed the complaint must go to court to stop you from relisting. It's never happened to me - I've never been taken to court. I'm sure it may have happened in the past to someone, but I can't find any example on the web. If your item is legitimate, you are safe. It's very risky for a VERO member to take you to court. If they lose, the DMCA provides severe penalties. Triple damages, paying all court and legal fees, and more.
If the VERO twit actually replies to your email:
I typically can't wait to answer. Their emails are usually hot air, rife with empty threats and demands that violate the law. For example, one time a law firm demanded a list of my customers, receipts, etc. I told them to shove it and get a court order. They did not get the court order. I hope they shoved it. Sideways.
When you answer, try to be polite. It's difficult. I have a hard time doing so and am usually sarcastic and baiting. Never admit any wrong-doing, and feel free to ask them why they think they can commit perjury and file false copyright complaints.
What to do if eBay suspends your ability to list items:
This one really pisses me off. You file a counter-notice, attesting to your innocence. The VERO twit states you are a crook. eBay suspends your right to list items. Guilty until proven innocent. Even after the counter-notice goes through, and you are vindicated - you still can't relist. Or can you?
Usually this account "restriction" can be lifted by taking a truly idiotic, pathetic and demeaning tutorial. Log in to "My eBay", click on "sell" then "sell your item" - you'll be directed to take the tutorial. I have it down to 20 seconds. Alternately, if you use TurboLister and try to relist, you'll see errors for every item. Click on the little "!" to the left of the item and you'll see the screen at right. What will really have you swearing and throwing things (and have your pet hiding) is that your listing probably met all the specifications and violated nothing in the tutorial.
The eBay Way to fight:
Yes, my advice is different then eBay provides. I feel that my way is the best way to handle it. You have no legal obligation to first contact the party that filed the VERO complaint. That's an eBay policy.
Here's how the eBay way works:
1) Contact the VERO member and wait for a reply. The reply may never come, or it may take several weeks. The fastest I ever received a reply was one week. eBay gives them a maximum of five business days.
2) After you receive a reply, you have to "work" with the VERO member to resolve the issue.
3) If the VERO member does not reply, you have to contact eBay and ask them to contact the member for you. They will send an email to the VERO member. The VERO member may or may not reply.
4) You have to wait a few weeks for the reply.
5) Contact eBay and ask for help. You'll receive a reply that you are basically screwed.
Time wasted the eBay way: two to four months - and no item relisting.
eBay will not volunteer the information that you can file a counter-notice. Most people mistakenly believe that they have to live with the takedowns and negative strikes!
The eBay way is to work with the VERO member and negotiate a solution. If you can't come to an accord, too bad for you. Don't fall for this! This is even the solution provided in their "tutorial." You are NEVER informed about your rights to file a counter-notice!
Mistakes to avoid:
- Using the eBay way to fight. Don't do it!
- Attempting to reason with the VERO member that filed the complaint. I tried this one time. It took three months and 30 emails to finally have them admit that they made a mistake - and then for only three of five items they had taken down. A counter-notice would have solved the problem in under three weeks. A VERO member will usually do nothing but stall. Very few VERO members will willingly admit they made a mistake or work with you.
- Extraneous communications with eBay. Don't send follow-up emails to eBay, don't call them, don't use their online chat.
The only times to follow-up: You did not receive the email after faxing the counter-notice, or if you did not receive a reply three weeks after you sent the counter-notice. Be overly polite in your follow-up email! This follow-up is almost always requied!
That loophole I mentioned:
You can appeal copyright VERO takedowns. You can't appeal TM (TradeMark) takedowns. This is a total abuse of the VERO system (but what isn't?) and one that eBay sticks it head in the sand on.
Example: I took a photo of a book I was selling. The item was taken down on a trademark infringement complaint. Why? The company complained that my photo was too clear and that the logo quality in the image was too good. In other words, I took the time to create a nice listing and took my own quality photo of an authentic item - everything eBay tells us to do. The VERO @$%%*&ing ass$$#% then files a TM complaint.
eBay allows no counter-notice, no appeal, nothing. Nada. Zip. Zilch. There is absolutely no process in place to fight it. You need the permission of the complaining party to relist the item. Good luck.
This is from the takedown eMail you'll receive for TM complaints:
"The misuse of a trademark is unlawful and against eBay's policies. A
trademark is a unique sign (such as a name, word, phrase, logo, or
symbol) that a company uses to uniquely identify its products or
services. Trademark misuse includes potentially confusing
comparisons to another branded item, selling counterfeit or replica
items, and keyword spamming.
Notice that "guideline" section? eBay ignores it. Even if your auction follows that guideline, you're screwed.
Following is the eMail form NetEnforcers, the VERO NAZIs. Think that's too strong a name for them? Think again.
Notice that they consider a digital scan to be different than a digital photo (try that one in court - both are digitally captured images using the same technology) and that it has to be an "obvious photo" - HUH?
Dear Rick Drew,
Photos of trademarks are ok if it is made obvious it is a photo and not a scan. If it is not obvious that it is a photo of the product or box it is considered a violation of trademark when the logo or product images are visible.
NetEnforcers is a major player in false and illegal takedowns. Since they could not make their VERO copyright takedowns stick with fake copyright complaints, they switched tactics and now file false TM complaints. American Justice, eBay style. NetEnforcers has a truly drug-induced understanding of trademark law.
I hope this helped. One day in January 2008 I was so pissed off at the inequities of the VERO system I sent a not-to-polite email to eBay's president and also to their CEO.
You can read it here.
One of the best methods is embarrassing VERO and the cry-baby complainers. I managed to do so back in 2005 by sending the information to an online Gripe Line. See it HERE. This was my first major experience with VERO, and I used the eBay way to fight. I've learned the system thoroughly since then.
Lastly, eBay will take down an auction even after it has closed - even weeks later! It's happened to me three times. The appeal process is the same, but the kicker is that eBay sends an email to the winning bidder informing him/her that the item the won is in violation of the law and basically calls you a counterfeiting crook. If the customer is a fast payer, then contacts eBay to ask for clarification, they will be advised to immediately get their money back. eBay will tell them to file a PayPal dispute, stop payment on checks, etc. They will tell the customer "We can't tell you why, but you need to get your money back immediately." Did they call you a crook? A thief? Not directly, but their statement speaks volumes. Work with the customer. Tell them that it was a mistake on eBay's part and that they will receive an email in a few weeks withdrawing that statement. eBay will give you a "relist" link and send the customer an email withdrawing the takedown. After you follow the appeal process.
Here's a bonus. As far as eBay is concerned, the auction never took place. Theoretically, you could auction off an identical item a second time without worrying about a takedown! Or so I've heard... I have never done this, and would never recommend that you take advantage of such a loophole and violate eBay policy.
Note: I'm not anti eBay. I understand that they need some type of program to fight counterfeits. The problem is that professional counterfeiters can't be caught by VERO. They appear to be legitimate businesses. This is why I will NEVER purchase a DVD from eBay. I purchased four DVD's in the past. ALL four were home-made dupes. By the time PayPal got around to following up on my complaint, the crooks had closed up shop. The PayPal guarantee was WORTHLESS. I lost every penny. I'm anti VERO - or the way it is implemented, mismanaged and designed to be pro-VERO member and anti-eBay member.
Have you ever received the eMail inviting you to participate in the online VERO survey? Every question is worded in such a way that you can only come off pro-VERO. Almost as bad as "Would you rather gouge out your eyeballs with a rusty nail, or agree that VERO is the very bestest, neatoest thing since sliced milk?" Yes, sliced milk. Makes about as much sense as the survey does.
VERO is manned by clueless idiots who don't give a flying f*ck. These are the guys that fail the floor mopping test at the local flop-house.