Had a 21st item up on ebay pulled/cancelled!

Zartan · Post by **Zartan** » Tue Mar 22, 2005 6:28 pm

I had a 1/6th Pak 40 75mm Anti Tank gun up on ebay and it was pulled by ebay. I received the following line in a email from ebay:

pulled "because an intellectual property rights owner notified us, under penalty of perjury, that your listing infringes the rights owner's copyright, trademark, or other rights."

I then emailed the person that notified ebay stating that it doesn't have any relation with his custom 1/6th vehicles and received the following reply:

"Hello Graeme,
On the contrary. The original prototype for the Kettenkrad, Pak 40,Schwimmwagon,White Scout car and several others were purchased directly from me by 21st Century Toys and then used to make unauthorized copies from. I hold the registered copyrights for all of these vehicles and I am now reporting all auctions on Ebay that are offering the copies for sale. I apologize for the hassle but direct your complaints directly to Jim Allen of 21st Century Toys. Take care."

Post by **aferguson** » Tue Mar 22, 2005 6:33 pm

wow..

that's majormidnite.

immeww2 · Post by **immeww2** » Tue Mar 22, 2005 6:45 pm

That's a big surprise!

Post by **aferguson** » Tue Mar 22, 2005 6:57 pm

i believe majormidnite's story. 21c is well known for copying others' stuff to make their toys. They copy tamiya all the time.

Majormidnite may have just discovered he can do something about it...

Zartan · Post by **Zartan** » Tue Mar 22, 2005 7:00 pm

Yeah, its majormidnite but on his site he has no pictures of any vehicles listed above. No big deal as far as I'm concerned. I'm no longer collecting 1/6th and the Pak is the 2nd last item I have left which I was considering keeping.

hworth18 · Post by **hworth18** » Tue Mar 22, 2005 10:03 pm

Zartan wrote:Yeah, its majormidnite but on his site he has no pictures of any vehicles listed above. No big deal as far as I'm concerned. I'm no longer collecting 1/6th and the Pak is the 2nd last item I have left which I was considering keeping.

What a Dumba**.. If someone contracts you to build prototypes for them and then they make copies, you have NO claim to them..They can do with them what they wish... I have done custom work for a certain diecast manufacturer and I certainly didn't claim any copywrite..

Zartan · Post by **Zartan** » Wed Mar 23, 2005 12:41 am

There's F all I can do. Ebay took Midnites word for it and left me high and dry. I have already emailed them letting them know it's total bulls**t and am just waiting to get a Gestapo kickin down the door response. I was also left with the following in the first email from ebay:

"If you relist this or any other similar items on eBay, your account likely will be suspended."

I have too many items up and still pending to just relist it anyways or else I damn well would!

tracer · Post by **tracer** » Wed Mar 23, 2005 4:44 am

Zartan,
What if you relisted it with just enough description for those who know what it is would know, but he couldn't prove to ebay it was his design.....no pictures

Just a thought

digger · Post by **digger** » Wed Mar 23, 2005 5:51 am

aferguson wrote:i believe majormidnite's story.

Majormidnite may have just discovered he can do something about it...

It's really not who you believe; I can tell you right now who holds the copyright's to all of the above (Copyright search is one of the easiest things to do on the computer....). The idea is that in this country (USA) we don't restrain trade unless we have a damn good reason - which invariably means you have to go to court to show it. I bet you can still get the Pak 40 from BadCat (I bet there's a picture too) because MM's "word" and those who believe him are only enough for ebay (their site, their rules as we know). The real world requires you take your a55 to court and get an injunction (pretty tough, see above on restraint of trade), or wait until you prove they copied your work. This is the part MM does not seem to have done (the expensive, difficult & time-consuming part). Remember, these are historically accurate designs so to prove someone copied yours is likely tough - they're SUPPOSED to look the same.

Maybe he waited until 21st could afford to pay him off, but in any case his story is fishy "he sold the prototypes (for 21st to play with?) and then 4 years later realized they had been copied"

sounds like sour grapes, but who knows.

5ohsinker · Post by **5ohsinker** » Wed Mar 23, 2005 6:19 am

I dont get it, how can that happen? Does that mean BCA and others cant sell a Pak-40? This guy needs to deal with 21st Century and leave people like us be.

Post by **aferguson** » Wed Mar 23, 2005 6:39 am

But 21C DIDN'T contract majormidnite. They bought one of each of his items and then copied it for mass production. BIG difference.

lightning2000 · Post by **lightning2000** » Wed Mar 23, 2005 7:52 am

Hi,
I'm not sure why the model maker would be allowed to have this item pulled. Would that mean that an author can have his literary works yanked from ebay if he owns the copyright? I think that his beef is with 21st Century Toys, not the present owners of the final product.

My guess is that you may have used a picture of his to promote the item -- if you took a photo of it yourself then I'm not sure how eBay can remove the listing. Again, I'm not offering advice, just ruminating why they would pull the auction. But hey, stranger things have happened with the auction house...

Lightning2000
www.themotorpool.bigstep.com

digger · Post by **digger** » Wed Mar 23, 2005 8:40 am

aferguson wrote:They bought one of each of his items and then copied it for mass production. BIG difference.

How do we know that? Because he says so? He has to prove it first, not just allege it. That's why BadCat can tell him to eat a ____.
The economy would come to a halt if all someone had to do was ALLEGE someone copied there stuff and demand it be pulled from shelves.

Remember, we don't know the whole story - we certainly don't know if they copied his work to the point of infringement - and he clearly has no judgement (yet) so I think we should hold off on bolstering his claim that they copied his stuff. We just don't know that.

Post by **aferguson** » Wed Mar 23, 2005 10:19 am

He would have had to present some legal documentation to Ebay for them to cancel people's auctions. Ebay won't just cancel an auction because somebody tells them to. So that's why i believe his claim is ligit. He would have had to have gone to court, proven that 21c copied his items and a judge would have had to agree with him.

And as to Lightning's point: if someone copied that authors book and passed it off as their own then, yes the original author can block others from selling what is essentially plageurized material.

I don't imagine much will come of this....leastwise i hope not. MM may be directly going after 21c as well for all we know and since they're just starting to get back on their feet that's the last thing they need.

I'm not taking any sides here and lord knows i am a huge fan of 21c. I'm just stating my opinion on this situation. I believe MM's claim and that it is true.

hworth18 · Post by **hworth18** » Wed Mar 23, 2005 10:22 am

Well,
I think it comes down to that we only know "part" of the story.. Obviously, if this would go to court, then we would know what really happened.. It's pretty SAD though..

digger · Post by **digger** » Wed Mar 23, 2005 10:28 am

No - all he has to do on ebay is attest under penalty of perjury. No judge, no court, none of that.
That's why you see the item for sale at BadCat, and other places. There is no way he has gone to court and done the leg-work.
And, no - he would not have had to prove it to a judge - just show a liklihood that he would succeed if he were to sue 21st for infringement; that would be enough to get him the injunction - which it still seems like he doesn't have:
http://www.badcataviation.com/75gunp4016by.html

Post by **aferguson** » Wed Mar 23, 2005 10:40 am

interesting......how can he attest under penalty of perjury to ebay? Ebay is not a court. Perjury can only happen in court or before a judge. What is the penalty that ebay could levy if it was demonstrated he perjured himself?

He must have something official....otherwise anyone with a grudge could get the auctions of someone they don't like pulled just by making a bogus claim...

A weird situation for sure..but i still believe MM's claim.

Threetoughtrucks · Post by **Threetoughtrucks** » Wed Mar 23, 2005 10:47 am

Aferg:

I think the whole point is that MM does not have to prove anything to eBay for them to believe his statements and pull the auctions.

MM is a big seller and eBay treats sellers different from us, regular buyers and small sellers. The big sellers mean alot of money to eBay.

I don't think BCA is in trouble because they sell direct. They can ignore MM if he DEMANDS BCA withhold products. As long as eBay is not involved in the sale. At least I hope so.

If MM has a beef with 21C, he has a right to punish 21C through the courts, MM does not have the right try to punish US, the collectors, by stopping sales.

MM is a sad guy, trying to punish everybody because he feels he got screwed by a company like 21C by not taking care of his own interests. MM is certainly not winning any friends from us and the 1/6 guys by trying to screw us..

TTT

Post by **aferguson** » Wed Mar 23, 2005 11:08 am

you make some good points triple T. And while i believe his claim the way he is going about enforcing it leaves room for questioning. However, i think if any of us had a product of ours get copied and mass marketed by a big company we'd be pretty ticked off about it..

Btw, i'm a fairly big seller on ebay too and i get treated like crap by them. I can't imagine them cancelling somebody's listing just because i tell them to. Half the time they won't even answer my emails.

Zartan · Post by **Zartan** » Wed Mar 23, 2005 4:38 pm

Lightning, I used my own photo for the auction, MM doesn't even have a picture of a Pak 40 on his site as far as I know. There are no Pak 40's up for auction now and there are 6 in the completed search including one from small blue planet. The online retailers will still have them for sale.

aferguson, this is the only way he can enforce it without spending any money. I on the other hand get pretty quick responses from ebay even though this ones a bunch of BS:

"Hello Graeme,

Thank you for contacting us.

We removed this listing because the rights owner, Major Midnite
Collectibles, reported it to us as infringing their rights. When we
receive a request from a rights owner we are obligated to remove the
listing in question. These requests substantially comply with federal
law.

As you know, eBay has not inspected the item. Nor do we have enough
information about the item to make any judgment as to whether it is
authorized. In addition, eBay is not an expert in the rights of any
third parties. As a result, we are not in a position to make a judgment
as to whether the item is authorized or legal."

tko211 · Post by **tko211** » Wed Mar 23, 2005 7:31 pm

Well, this has been a very busy topic indeed! I really wanted to get the other side of the story directly from 21st. So I did some digging today with the company and I was provided with this official legal statement directly from the legal forces at 21st Century Toys! I think you all might find it interesting. Looks like 21st might have had enough of this harrassment... looks like the hammer is going to fall!

**** OFFICIAL LEGAL STATEMENT ****

21st Century Toys website announcement re: Tim Hamilton/Major Midnite Collectibles

If you are a vendor or seller of 21st Century Toys, Inc. products, you may have recently been contacted by Tim Hamilton of Major Midnite Collectibles claiming copyright infringement on our part. We would like to take this opportunity to apologize for any harassment and inconveniences you may have experienced as a result. We also assure you that until the matter has been formally litigated, Mr. Hamilton’s alleged claims are unfounded and have no merit. Mr. Hamilton also lacks proper claim to be contacting eBay, Inc. or individual eBay sellers requesting that they remove certain 21st Century Toys, Inc. products from auction, especially since the situation should be addressed only between the two relevant parties and until a proper determination has been made.

You, our vendors or sellers, are currently NOT in violation of any copyright laws related to this matter.

We are working diligently on this situation and are examining our legal rights with our attorneys and through eBay, Inc. Unfortunately, the same cannot be said for Mr. Hamilton, who has taken matters into his own hands instead of through proper legal avenues. Our attorneys have already sent Mr. Hamilton a cease and desist letter while providing him notice of the gravity behind his allegations. Should Mr. Hamilton fail to comply, we will immediately seek an injunction barring him from any further activity and will take all legal steps necessary against him to prevent any further detriment to our company.

We request, that should you receive or have received any correspondences from Mr. Hamilton in the form of a letter, fax, email, etc. regarding allegedly infringing product, we kindly ask that you fax a copy to (510) 483-2141 or forward the email to us at info@21stcenturytoys.com. We will be sure to analyze the correspondence and decide the next course of action to take on the matter. We thank you for your cooperation with this request.

Again, our sincerest apologies for your troubles and our deepest gratitude for your continued support of our company.

immeww2 · Post by **immeww2** » Wed Mar 23, 2005 8:16 pm

Looks like its lights out for Mr. Midnight.

Post by **aferguson** » Wed Mar 23, 2005 8:25 pm

Website · Post by **Teamski** » Thu Mar 24, 2005 2:40 am

Hardcore!!!! Wow, now that is indeed a hammer. Thanks Zach for the legal notice! 21st is really stepping it up. Cool.............

-Ski

Small Scale Military Headquarters

Had a 21st item up on ebay pulled/cancelled!

Had a 21st item up on ebay pulled/cancelled!

MM

Pak40

MM

No