The Monkey House

< Writing : Rants : eBay >


eBay is the bad guy in this story. I single them out not because they are uniquely awful in any particular respect but precisely because their attitudes, policies, and enforcement mechanisms are emblematic of the present, recent past, and foreseeable future of large platforms whose norms become de-facto law due to the practical impossibility of holding them to the actual laws of any particular country.

I have had an eBay account for over a decade, acting as both a buyer and seller. Over that time, eBay policies and procedures have changed in a way that seems broadly in keeping with overall (US) corporate trends, and somewhat in keeping with the reality of eBay's increased size and scope. As eBay has grown, it has become less interested in taking on risk to pursue further growth, and more interested in

Today's narrative concerns some HP toner acquired at a business closing, sold on eBay.com in early 2020. The auction went live on a Saturday afternoon, with the first toner sold Sunday morning, and the remainder Monday afternoon. It was promptly paid for by the buyers, and I packaged and shipped it out. The following day, eBay notified me that this completed listing had been deleted. This raised a number of questions, principally "what is the problem here?" and "what do you think the point of deleting the listing is, since the sale is already complete?"

What is the problem here?

Answering the first question - "what is the problem here?" - proved to be surprisingly difficult. eBay's initial email began with "We had to remove your listing because it didnt follow our VeRO Parallel Import Policy" and helpfully included a URL for more information. The more-information link pointed to some brief generic boilerplate about the VeRO program, but nothing about the "VeRO Parallel Import Policy" mentioned in the email. Indeed, no such policy exists! The "Search eBay Help" field on the VeRO page fails to turn up any results for "parallel import" and resorting to a google search for the term at ebay.com fails to turn up any such policy either.

The email continued "Your listing was reported by Hewlett-Packard Development Company, L.P. for offering shipping to other countries without their permission." This provides some clue. Furthermore, eBay repeatedly directed me to contact the "rights owner" at enforcement_hpinc@pointerbp.nl which is Pointer Brand Protection, not HP (in any of its guises), and I think we can all agree that HP has not sold its trademarks to some "brand protection" vultures out of the Netherlands. But, always up for a lark, I sent them an email: "What rights are you asserting with regard to eBay auction ID [auction number]?" and in due course I got a response:

We kindly invite you to read eBay's International Trade Policy on the following page: https://www.ebay.com/help/policies/prohibited-restricted-items/international-trading-policy?id=4338 To be specific, offering for sale products or services that bear HP's trademarks in the European Economic Area (EEA) violates HPs trademark rights, when these products were not put on the market in the EEA by HP. This follows from Art. 15 of EU Reg. 2017/1001 (European Union Trademark Regulation).

They then included a list of EEA countries and because they're charlatans, concluded with "For security reasons, we are not allowed to provide further details." But I forged gamely on, pointing out that the items I had listed for sale were and still are "put on the market in the EEA by HP" and I even included a link to HP's UK website where they were listing that item, identical in both description and part number, for sale in the EEA (this was pre-Brexit). Their response?

Thank you for your emails. We are confident that our legal position for removing your listing from eBay is correct. [...] We consider this matter closed. This is the final communication you will receive from us concerning this matter.

And true to their word, they ignored further email from me. So that was a dead end.

So there is apparently an unwritten policy that eBay is aggressively enforcing. Their initial email continues:

Listings that don't follow this policy in the future will be ended. In addition, there will be a temporary 3-day restriction placed on your account, and your other listings will be hidden from search during this period. All fees paid or payable for listings that are ended and/or hidden from search will not be refunded or otherwise credited to your account.

What was the point?

But remember, this auction was already done: the listed items had been sold, paid for, and shipped before eBay took any action in this case. Thereafter, I spent six weeks badgering eBay via their email-like messenger service, Twitter support, and by phone, and I've learned a few things along the way. Parallel import is a legal theory that's apparently still prevalent in the EU, but which has been roundly condemned as bullshit by the courts in the US and many other countries. The theory is that if I produce an ACME WidgetBlaster 5000 and trademark that term, then I get to decide where you can send your WidgetBlaster. There are variants of this theory based on copyright and other IP rights, but the basic thrust of the argument is the same: IP rights that govern production (copyright, the right to make copies; trademark, the right to exclusive use of a term to describe a particular product that I make; etc.) also somehow extend to usage after the first sale. The other interesting thing about this phrasing is eBay's initial attempt to disclaim responsibility for their actions: they "had to" remove my listing. But of course this is a lie. Listing removal is a choice they made based on policies they've decided to implement. They have no legal obligation to remove listings, despite the language in their email and the explicit claims over the phone made by customer service reps. Though it's under continual attack, Section 230 of the Communications Decency Act makes clear that a provider hosting content generated by a third party is not liable for that content [with some IP related exceptions, such as those implemented by the Digital Millennium Copyright Act]. As an aside, I can find little evidence of this company existing, beyond the obvious fact of hp.com including a copyright notice referring to that company name. In particular, no such company has been incorporated in Delaware, where 55 Hewlett Packard companies are registered.

Version 0.1     |     Originally written: March 11, 2020     |     Latest revision: March 11, 2020     |     Page last generated: 2020-07-29 22:33 CDT