Keeping an EBay Competitor Honest

My company sells products on eBay (EBAY). Someone has virtually copied my advertising, description, and products. They even have the same auction finish time, minus exactly one hour. I believe in healthy competition, but is there any way to bin this duplicating charlatan's account? —submitted online anonymously

Obviously you can't stop other companies from competing head-to-head with your product or service. A company's decisions on what goods to sell are not protected by copyright law; neither are decisions on when eBay auctions should end, meaning anyone can "copy" your deadlines, says Mitchell Zimmerman, an intellectual-property attorney with Fenwick & West in Mountain View, Calif.

However, if your competitor has indeed lifted your pictures and unique product descriptions verbatim, you may complain to eBay and potentially pursue legal action.

Let's start with eBay, where account holders must agree to the company's user policies as a condition of obtaining an eBay account. Shawn C. Helms, a Dallas attorney specializing in technology transactions at Jones Day, points to the eBay "Images and Text" policy: "This policy makes it clear that the copying of descriptions and pictures is prohibited. The policy begins with the statement 'eBay members are not allowed to use images—including photos and other pictures—or text they didn't create themselves,' " Helms says.

The policy goes on to say that listings that don't comply may be removed and the offending account may be limited or suspended. A link on the policy page allows you to report a problem listing.

Protecting Intellectual Property

EBay has also put in place a Verified Rights Owner Program that sellers can use to lodge complaints about allegedly infringing content, says Terence N.Church, an intellectual-property attorney with Morgan Miller Blair in San Francisco. EBay's intellectual-property policy can be found here.

In the larger scope of things, U.S. law grants copyright to anyone who creates writing or other forms of expression. "Copyright gives the owner the exclusive right to copy, display, modify, and create derivative works of that content," Church says. If your competitor has infringed your copyright, the Digital Millennium Copyright Act sets up a procedure that you can follow to make him stop.

A copyright owner cannot sue for damages if the copyright is not registered. However, you can register a copyright with the U.S. Copyright Office online. If you register within three months of first publication of the ad, you could bring a lawsuit seeking damages of $750 to $30,000, plus attorneys' fees. Says Zimmerman: "The threat of such a suit is often enough to get the infringer to back off."