Official Luthiers Forum!

Hi all, I apolgize for not being the most active member here, but I have run into a little legal battle with an ebay seller.

I have listed a template for a tele guitar, and it was cancelled via ebay Vero Program. I was surprised to find out that Fender did not cancel the auction that a company called Kirn Consulting did. After various emails to this company, the owner refused to inform me of what "IP" he owned. So I listed the template 3 more times each time changing the wording. Each time it was cancelled.

Eventually my account was suspended, and now I am at the final stage of filling my apeal. Within this appeal the wording throughs me somewhat. I don't have an offical lawyer, and would like a little help on behalf of all the guitar builders out there.

If anyone could help me out that would be great. Thanks,
Derek lenard
derek@bigdguitars.com

I HATE EBAY. YOU BETTER HIRE A LAWYER...

_________________
Dave Bland

remember...

"If it doesn't play in tune...it's just pretty wood"

Derek,

What did ebay say? Was it because you used the word Fender, or Telecaster, or Tele, or all of them? There are all kinds of things listed on ebay with those exact words, so I am just wondering.

Jeff

The three different wordings that I used were:
Auction 1: Luthier guitar tele template
Auction 2: Guitar template
Auction 3: Guitar pattern

I looked up The guy and everything under the USPO, and nothing is there.

I posted here because I remember a couple of yous are lawyers?

So what is the claim? I have had some ebay problems before (with computers, not guitars). Are they saying you are infringing on his intellectual property? Or property he has exclusive rights to use?

_________________
Brock Poling
Columbus, Ohio
http://www.polingguitars.com

[QUOTE=bigdguitars] After various emails to this company, the owner refused to inform me of what "IP" he owned. Derek lenard
derek@bigdguitars.com[/QUOTE]
Derek, I'm not sure if knowing his IP is going to help much, but if you look at the message header from his email, you should be able to at least see what IP the email originated from. (Could just be a Hotmail or Yahoo anonymous email account, but it might be directly from his company.) The IP you want to find in the message header is the LAST one listed as "Received: from",

for example, in the message header below (from Spam email):

Return-Path: <undauntedly@wttw.com>
Received: from mxsf22.cluster1.charter.net ([10.20.201.222>)
           by mtao01.charter.net
           (InterMail vM.6.01.04.01 201-2131-118-101-20041129) with ESMTP
           id <20050920154059.GEWW13845.mtao01.charter.net@mxsf22.clust er1.charter.net>
           for <abcdefg@charter.net>; Tue, 20 Sep 2005 11:40:59 -0400
Received: from mxip03a.cluster1.charter.net (mxip03a.cluster1.charter.net [209.225.28.133>)
     by mxsf22.cluster1.charter.net (8.12.11/8.12.11) with ESMTP id j8KFeUxH032758
     for <abcdefg@charter.net>; Tue, 20 Sep 2005 11:40:58 -0400
Received: from c-24-218-59-69.hsd1.ma.comcast.net ([24.218.59.69>)
by mxip03a.cluster1.charter.net with SMTP; 20 Sep 2005 11:40:50 -0400
X-IronPort-AV: i="3.97,127,1125892800";
   d="scan'208"; a="1422002002:sNHT15336778"
Received: from 85.52.227.163 (EHLO Danubian)
    by c-24-218-59-69.hsd1.ma.comcast.net with SMTP; Tue, 20 Sep 2005 11:40:38 -0400
    id 803303390gloat37812
    for abcdefg@charter.net; Tue, 20 Sep 2005 11:40:38 -0400
Mime-Version: 1.0 (Apple Message framework v728)
Content-Transfer-Encoding: 7bit
Message-Id: <1293642106.4754620326@c-24-218-59-69.hsd1.ma.comcast.net >
Content-Type: text/plain; charset=US-ASCII; format=flowed
To: abcdefg@charter.net
From: Derik <undauntedly@wttw.com>
Subject: The stock Trading Gunslingers
Date: Tue, 20 Sep 2005 11:40:37 -0400
X-Mailer: Apple Mail (2.728)

the senders originating IP is listed in red. In this case, it happens to be the IP address (in numbers), but it could also be the resolved URL, such as BigSpamJerk.COM

In this case, since we have the IP address (85.52.227.163), we can use the Arins WhoIS database search to look them up. ARIN WHOIS, and in this case we find our spammer to be... well, it's not so easy with spammers. This company has a cluster of IP addresses, and addresses in Madrid, Spain as well as Amsterdam, Netherlands. Hope your search is easier than tracking spammers from across the world.

By the way, Ebay is a great tool when everything goes as planned. But, when there is any trouble or any problems, Ebay is completely worthless, IMO. It may not matter that you are legally, or ethically "right"; they will probably still abandon you when you need them most.

Hope this helps,

Dennis

Dennis, I think in this case "IP" is being used as an accronym for Intellectual Property. I'm not sure why the IP address would do Derek any good. Maybe I'm wrong...

Derek, you should probably consider youself lucky that Fender didn't come after you themselves. They recently have patented/trademarked/copyrighted the strat and tele designs in an effort that the Asian market will quit ripping off their designs.
I too am curious what the guy's claim is. Do you get to find out or does ebay just bring it down with no explaination?

Dennis, I think the IP he was referring to was "intellectual property."

Derek, I think we're all waiting for you to tell us what e-bay said you did wrong. Did your listings refer to telecaster, tele, etc.?

Oops! Yeah, intellectual property makes a bit more sense. But, wasn't it fun to chase after a spammer with me!

I know Harley-Davidson now has a patent on the Harley sound, so I suspect that Fender has a design patent on the Tele shape. In that case, the wording wouldn't make any difference, and if you posted a photo or diagram that looked like a Tele, they could yank it off.

Dennis

_________________
Dennis Leahy
Duluth, MN, USA
7th Sense Multimedia

[QUOTE=Pwoolson] Dennis, I think in this case "IP" is being used as an accronym for Intellectual Property. I'm not sure why the IP address would do Derek any good. Maybe I'm wrong...

Derek, you should probably consider youself lucky that Fender didn't come after you themselves. They recently have patented/trademarked/copyrighted the strat and tele designs in an effort that the Asian market will quit ripping off their designs.
I too am curious what the guy's claim is. Do you get to find out or does ebay just bring it down with no explaination? [/QUOTE]


Yes, but I suspect that the ground is going to erode from under their feet. Gibson lost their suit to PRS. I think as long as you are not make dead on clones it will be hard for Fender or any of the big boys to knock you off the map unless you are really infringing.

_________________
Brock Poling
Columbus, Ohio
http://www.polingguitars.com

I see on ebay right now many listings that in the abstract could be considered infrigments on intellectual property. Why this company has gone after you I am not sure. "Tele" is not the trade mark name it is "Telecaster". That is why Fender is not in the issue. They can not make a claim because tele is used in too many common words, like television. tele-tubies, I could go on. I would find the companie's mailing address and inquire to what you infrigment is. There may be a real claim that they have. I think if you press the issue with Ebay they will help you find out the substance of the claim, but I could be wrong there.

[QUOTE=Brock Poling] Gibson lost their suit to PRS. [/QUOTE]

Huh? I thought it was the other way around. Did I miss something?

And that's what's now fueling these issues. Why else would PRS single cuts be going on ebay for over $6,000.00
What a joke!

C. Lavin

_________________
www.handcraftinlay.com

[QUOTE=CarltonM] [QUOTE=Brock Poling] Gibson lost their suit to PRS. [/QUOTE]

Huh? I thought it was the other way around. Did I miss something? [/QUOTE]

Nope reversed on appeal... check out the PRS web site.

_________________
Brock Poling
Columbus, Ohio
http://www.polingguitars.com

[QUOTE=clavin] And that's what's now fueling these issues. Why else would PRS single cuts be going on ebay for over $6,000.00
What a joke!

C. Lavin


[/QUOTE]


Unless you are the poor fool who bought one ..... they are ramping up production at this very second.

_________________
Brock Poling
Columbus, Ohio
http://www.polingguitars.com

I hate Ebay.

_________________
Dave Bland

remember...

"If it doesn't play in tune...it's just pretty wood"

I love Ebay.   

_________________
Brock Poling
Columbus, Ohio
http://www.polingguitars.com

[just jabbing you Dave.      ]

But I do love it... warts and all...

_________________
Brock Poling
Columbus, Ohio
http://www.polingguitars.com

Here is the thing...

He never told me what he owned, every question was avoided and I never got any answer. I assume that he was copyrighting the tele template itself. He could not copyright the term tele, because of fender, the words luthier, template, patter, project are all common words.

I hate big companies who think they own something just cause they got fat out of it !!!

If you take it to its extreme the only guys who should make a guitar are the ones who built the first one.

but they are all dead.

So, here is my question... who is cancelling your auctions? Ebay has to do that, right?   A user of the system can't cancel someone else's auction.

Have an attorney write a letter to ebay telling them to put up or shut up regarding your auctions. At least then you will know what is going on.

_________________
Brock Poling
Columbus, Ohio
http://www.polingguitars.com

Precisely so there fore it would be a bit silly, the one I couldn't understand was the Taylor one where they were putting some pressure on a guy in Australia about using a similiar bridge to them ?

Would this have stood in court ?

In which case Taylor better hope CF Martin never come knocking as I believe they invented most of the features taylor use. In fact I think we would all be in trouble.

Yes. I think they could hold that bridge and headstock up. They are not industry standards.

However for nearly 50 years the tele, strat, lp and other guitars were copied like crazy. They became the defacto standard of "what a guitar should look like". During this early period they only made a half hearted attempt to protect the design, THEN come back and really try to tighten down the screws nearly 50 years later.   I personally think it is too late. Either it is valuable from day 1 or not at all.

Every player / buyer knows, it is the LOGO (and to a lesser extent the headstock shape) that determines the maker... not the body shape. In fact, Gibson used some kind of screwball logic like this in their case against PRS... "in a smoke filled bar no one can tell the difference..."

the court told them they were nuts.

read the press release on the PRS site. It is pretty interesting.

Brock Poling38615.6787384259

_________________
Brock Poling
Columbus, Ohio
http://www.polingguitars.com

Thanks Brock

Yes a very interesting article, I can understand a company going crazy if a factory somewhere starts turning out forgeries. On the other bit they have to get real.

[QUOTE=bigdguitars] Hi all, I apolgize for not being the most active member here, but I have run into a little legal battle with an ebay seller.

I have listed a template for a tele guitar, and it was cancelled via ebay Vero Program. I was surprised to find out that Fender did not cancel the auction that a company called Kirn Consulting did. After various emails to this company, the owner refused to inform me of what "IP" he owned. So I listed the template 3 more times each time changing the wording. Each time it was cancelled.

Eventually my account was suspended, and now I am at the final stage of filling my apeal. Within this appeal the wording throughs me somewhat. I don't have an offical lawyer, and would like a little help on behalf of all the guitar builders out there.

If anyone could help me out that would be great. Thanks,
Derek lenard
derek@bigdguitars.com[/QUOTE]

You know, I love this forum. So much good advice. In your case, imho, you do need a lawyer unless, of course, you don't care to de business on eBay any more. The only thing ebay is protecting is their own prodigious rear. It would be interesting to know if you can patent a shape. Particularly one as nebulous as that being discussed. Design patents are very common but most are easy to circumvent. In other words, I can patent the design of a dress but you see what happens in the fashion world, it wouldn't stand up for a minute. Change a button and poof! There goes the design patent.

I think you need an attorney ot separate legal rights from bluster and self-protection.

Just my humble opinion, Steve

PS My cousin is coming tonight from out-of-town. She's a patent attorney. I need to discuss some leagal stuff with her so if I think of it (read: before the 3rd Scotch) I will bring this up.