We’re being told that a number of eBay sellers have, in the last day or two, received letters from representatives of cosmetics and perfume firm L’Oréal. The letters instruct them to remove all of the company’s product from their eBay listings within the next 8 days, or face legal action. There is no suggestion that the products involved are fake, just that the sellers have not been authorised by the trademark owner to sell them. Some of these are business sellers: it appears that others are private sellers getting rid of single items that were unwanted gifts.
From what we know so far, L’Oréal appear to be bypassing the established eBay VeRO system, and to be contacting sellers by making test purchases and then requesting seller’s contact details. Quite why they’re doing this when business details are on listings for all to see is beyond me, but if you’ve seen a buyer request your contact details after purchasing a L’Oréal product, you might expect to receive a letter yourself.
Faced with a threatening letter from a company whose antipathy towards eBay is well-known, many sellers will just pull their listings. But not all: Paul from has told us he intends to take legal advice and is prepared to fight if necessary. Being prepared to take legal advice is key: this fight is not one you should fight alone or with advice only gleaned from web forums.
I’m not a lawyer, I don’t even pretend to be one on the internet, but I believe that L’Oréal may be entirely within their rights to do what they’re doing. Lots of comment around this issue has hinged on trademark exhaustion: that is to say that if EU sellers have bought EU product from an EU supplier, they have the right to sell it on using the trademark, and the trademark owner cannot stop them.
On 1st June, that situation changed. Remember last year when eBay were drumming up seller support to oppose an EU ruling that said that trademark owners could refuse to supply internet-only retailers? That law came into force at the beginning of this month. An EU statement gives us the simple version:
The basic principle remains that companies are free to decide how their products are distributed, provided their agreements do not contain price-fixing or other hardcore restrictions, and both manufacturer and distributor do not have more than a 30% market share.
and guidelines that come with the Regulation state:
the supplier may for instance require its distributors to have one or more brick and mortar shops or showrooms as a condition for becoming a member of its distribution system
In other words, if you only sell on the net, the brand owner may disallow your use of their trademark. But I emphasise, this is only my interpretation of the Regulation and its effects: your lawyer might well tell you different.
If you’re one of the affected sellers, what are you intending to do? Remove the listings, or fight on? Please leave us a comment (you’re welcome to be anonymous on this one!).
Edited to add: for those coming from the US CSA Category Board, as far as I’m aware, this has only so far affected UK sellers. Will update if I hear any different; likewise, if you’re a non-UK seller who’s received a similar communication, could you please leave us a comment.