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Can records be subpoenaed if a lawsuit has not been filed?

Lincoln, AL |

I was accused of Trademark infringement on Ebay, which is not true. Ebay will not give me a copy of the supposed sworn statement from the company who accused me of this. I want to pursue this matter with the company, however I have not yet filed suit. I would like to have the Ebay records first and proceed from there. Is this possible?

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Attorney answers 4

Best Answer
Posted

A subpoena is a court order and therefore there can not be a subpoena issued without a legal action pending. A party to the legal action requests the Court issue the subpoena and if the Court agrees, it will issue the subpoena with the appropriate instructions, i.e., witness to appear, company to produce records, etc. Then if the recipient of the subpoena fails to abide by the Order, the Court can impose appropriate sanctions. Since you are not involved in a lawsuit with the company at this point, there can be no subpoena issued for the records or documents in question.

At this point I would suggest writing the company explaining what has been told to you by e-bay and then asking them to confirm if they in fact did send notice to e-bay of your alleged "trademark infringement." I would also ask them to send you a copy of any such statement or correspondence they sent to e-bay. Finally, I would suggest asking that they specifically maintain and preserve all relevant information and documentation related to this matter until said time as the issues have been resolved. (This is known as a preservation of evidence request.)

Not sure how much money is in dispute in this matter, but litigation with the company would probably be expensive and could subject you to a counterclaim for trademark infringement. Good luck and I hope this was helpful.

Asker

Posted

Thank you very much for your explanation of this to me. This was completely what I needed to know, and helped very, very much!!! I am not afraid of any suit against me because I am innocent...sometimes it's not about the money, it's about what's right and legal. Thanks again!!

Posted

No. Subpoenas require lawsuits.

And anyway, I'm not sure you have very much to gain here. I'm guessing that eBay removed some listing you had based on this company's claim of trademark infringement, presumably because they believe whatever you were selling to be counterfeit.

Generally there's a "litigation privilege" that prevents a party from suing another party for false allegations, and this includes statements made in anticipation of litigation. Also, when someone is accused of trademark infringement, they're interested in avoiding being sued. Here it appears you haven't been, so why not leave well enough alone?

See an IP litigator for help. You need to consult a professional about whether there are grounds for the claim, or whether you have a valid defense.

PLEASE READ THIS BEFORE YOU COMMENT, EMAIL ME OR PHONE ME. I'm only licensed in CA. This answer doesn't make me your lawyer, and neither do follow-up comments and/or emails and/or phone calls, and you shouldn't expect me to respond to your further questions if you haven't hired me. We need an actual agreement confirmed in writing before any attorney-client relationship is formed. This answer doesn't constitute legal advice, and shouldn't be relied on, since each state has different laws, each situation is fact specific, and it is impossible to evaluate a legal problem without a comprehensive consultation and review of all the facts and documents at issue.

Asker

Posted

Thanks for your input. However, where I come from, it is NOT ok for Trademark Bullies to tell lies about innocent American citizens in order to keep them from selling an item with their name on it. All items are genuine, and by "leave well enough alone" if you mean me forgetting about making this right.....not going to happen. I'm not the one who did anything wrong here. If large international companies are allowed to come to the US and make false accusations in order to stifle competition...what makes that leagal?? I am only doing research and trying to understand legal matters at this point. I do plan to retain an attorney.

Posted

You may have skipped a step. eBay's VERO program permits sellers to file a counter notice to a rights holder's take down notice. Once a counter notice is filed the disputed listing will be reinstated in 10 days absent a proper response from the rights holder.

Visit http://pages.ebay.com/help/policies/programs-vero-ov.html and click on "I need to file a counter notice" for instructions. Be careful, however: you should have an intellectual property attorney review your listing before filing the counter notice to evaluate whether your listing does infringe or otherwise violate some right owned by the rights holder.

The above is general information ONLY and is not legal advice, does not form an attorney-client relationship, and should NOT be relied upon to take or refrain from taking any action. I am not your attorney. You should seek the advice of competent counsel before taking any action related to your inquiry.

Asker

Posted

Thank you for your input. Actually, I did not skip a step...your comments are only applicable to copyright infringement, not trademark infringement. I did file a counter notice, and sent it to EBay's designated agent. They refused to accept it, stating the above. I have researched this matter at great length, and although I do plan to retain an attorney, in reality, I do not think I should HAVE to because the claim is false. Sad that innocent people are forced to pay mega bucks for proving their innocence in the US, where we are supposedly innocent until proven guilty.....I'll do what I have to do.

Daniel Nathan Ballard

Daniel Nathan Ballard

Posted

eBay cannot "refuse to accept" a counter notice and its VERO program does accept counter notices responding to allegations of trademark infringement.

Asker

Posted

Not according to the email I received from EBay, which I still have a copy of...they flatly refused it, and plainly stated that the counter notices were only for copyright and not trademark...Hmmmmm....now it really makes me wonder what's going on. It was really funny because in their instructions it told me about the counter notice, how to file, etc...Of course, nothing surprises me with regards to EBay. Thank you so much for your reply, but I have not been able to find any where that states that the same rules apply for trademark as they do for copyright...this is with regards to having websites or items removed, I think it is called "DCMA" takedown or something similar..??? I requested a copy of the "supposed" sworn afadivit from the company, but EBay told me I would have to subpoena it. Hence the original question.

Posted

My colleagues have given you excellent advice. But I want to emphasize the importance of consulting with and retaining intellectual property counsel before doing anything further on this matter. One of my colleagues suggested that you communicate directly with E-bay, but at this point I believe that your communications should be solely through counsel, especially if you intend to invest resources to sue e-bay as a matter of moral principles. Further, if you want to pursue this matter you definitely should retain counsel.

I must also warn you to be careful about your conclusion that you are innocent of trademark infringement. I commonly find that clients who believe in their heart that they are innocent of trademark infringement turn out to be mistaken. Before accusing E-bay or the company which accused you of infringement of doing something wrong, you should review the situation with counsel. If you have a license agreement allowing you to use or display the trademark at issue, you should review that agreement with counsel. If you otherwise claim that you had the right to use or display the trademark at issue on a product that you listed on e-bay, you need to discuss with counsel. By the way, one of the most frustrating problems is that many people purchase items from apparently legitimate sources only to find that the items are counterfeit, and that the manufacturer or seller had no right to use the trademark that appears on the item. Finally, if you claim that you are not the party responsible for listing the item on E-bay you may have a problem if someone else used the IP address associated with your computer to list the item on E-bay---the presumption is that the owner of an IP address associated with illegal computer downloads and/or illegal listings of items is responsible for such listings.

You should know that there are quite a few very legitimate law firms that are retained by their clients to review listings on E-bay to determine whether they violate copyright or trademark law. It is rare that these firms and their clients submit take-down notices and/or accuse consumers of trademark infringement without having a good faith basis for doing so. Law firms and their clients who protect their IP rights in these situations have no incentive, whatsoever, to pursue invalid or false claims. You should be very careful before making allegations that wrongful claims were made against you. In general, courts are hostile to claims for malicious prosecution, and these claims will be entertained only in the most extreme of circumstances.

Asker

Posted

Thank you so much Mr. Ross for your comments. They are very helpful. I do plan to consult an attorney before I do anything more. In reality, I do have permission from the accusing company, in writing, to sell my items on EBay. The auctions, in particular that were targeted, had 2 items listed. One was my item that I hand make, and the other was an item that I received from a legal dealer of the accusing company. I also researched the company who was retained by the accusers, and they are not attorneys, but rather a company that claims to help other companies protect their intellectual property. So this makes them a cyber cop, so to say. I take full responsibility for listing the items on Ebay, and I have listed them many times, but I have never used the trademark name other than to describe a legitimately purchased item from a distributor of the trademark holder. The problem is that I sell my items much cheaper, although I still make a good profit, I am not trying to make a million off of one person. When my items took off, and started selling really well, that's when the trademark infringement accusation was claimed. While I do understand that there are very legitimate firms who are hired to review listings, there are also Trademark Bullies out there, and an international firm accusing a very small town individual of trademark infringement, falsely, is just not acceptable to me. I should not have to drain my savings account to defend myself from something that is untrue, although it looks like this is what I will have to do. It's not fair to be wrongly put in this position, and it's not legal. I will do the best I can with trying to make this right. It seems, though, that all of the evidence points to everyone siding with the wrongful accuser. Such a shame this happens in the United States of America.

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