I tried to sell my legal copy of p90x on ebay. I bought my copy from Beachbody.com so it is genuine. Ebay removed my listing so I still have my copy. I received a letter from a legal firm saying I violated copyright and I need to send them 893.16! Can they do this? This is my personal copy of this item! I didn't copy or distribute it. I didn't even sell it!At this point I have not responded to their letter. I never received the first letter they sent to me which they stated was an email. It may have gone to my spam box. At any rate I do not give a lot of weight to a law firm who contacts people through email. The letter I did receive from them was simply delivered to my mailbox. I was not required to sign for it or anything. I have read around on the net and this is more common than I had expected. I will update this if I receive anything else from them.
I think the issue is one of contract law, not copyright or trademark law.
If you bought your P90X set through that website, therefore, the issue is whether the company’s prohibition against reselling your P90X set is enforceable under contract law.
I think not – but some attorneys think it is. Restrictions on re-selling products are common [and enforceable] in agreements among those who're in the product’s distribution chain – manufacturers, wholesalers, importers, retailers, etc. The nub of your issue is whether such a restriction is enforceable against you as a consuming end user.
I don’t know of any nationwide answer to that question and would be interested in my colleague’s take on the matter.
The company also lists “P90X” as one of its federally registered trademarks which “may not be copied, imitated, or used, in whole or in part, without the prior written permission of Product Partners or the rights holder.”
Again, the issue is whether the prohibition is enforceable. I think that all attorneys will agree that everyone has the right – regardless of the company’s purported restriction otherwise – to use “P90X” to refer to a P90X (even when that use is for commercial purposes). This right of "referential" or "nominative" use of "P90X" is nearly unquestioned under trademark law. What flows from that right is the right to take a photograph of your particular P90X set and publish that photograph when referring to the P90X -- be it as commentary, product review, discussion of your particular set, or any other reason that does not lead the viewer to falsely believe that you're somehow associated with Product Partners, LLC.
In short, with or w/o a photograph of your P90X, Product Partners may claim that you cannot offer to re-sell your P90X set (via eBay or anywhere else). It can, and apparently does, send eBay take down notices when P90X sets are offered for sale.
This is a legal battle that, for you, is not worth the fight.
What to do about Product Partners' demand for money? I don't know. If you ignore it, the company may file a small claims action against you in whatever jurisdiction you agreed in your purchase and sale would apply [which means you could be sued somewhere far, far away from where you live]. Is THAT jurisdiction provision enforceable? Again, maybe or maybe not.
This was a long-winded legalese answer to your simple question. Unfortunately, I for one don't have a clear answer for you.
Your copy may be genuine, and yes you do have the right to sell it, but the violation of copyright is putting an image of their product on eBay, and they've presumably copyrighted the covers of their DVDs.
Copyright infringement is a strict liability offense, so it doesn't matter if you knew or not that you couldn't use someone's product's image to try to sell your legal copy of their product, and it's also irrelevent that you didn't actually successfully sell the DVD on eBay. You could have listed the DVD without using any image in your listing.
Their $893.16 demand is ridiculous, since that amount bears no relation to their damage for your technical and de minimus infringement. I'd ignore it, as it's very unlikely they'll sue you for this infringement. Or you could hire an IP litigator to respond.
Disclaimer: Please note that this answer does not constitute legal advice, and should not 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. This answer does not create an attorney-client relationship.
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