😡 Why Our Items are Being Removed for Intellectual Porperty Policy

[Gabs Voom]

We appealed to Linden using the IP email and this is the reply we recieved:

Quote

After sending you  warnings for non-compliance with the Marketplace Listing Guidelines, you have continued to list branded items, brand names, keyword spam, or other intellectual property on the Second Life Marketplace in violation of the Guidelines.
More specifically, your Marketplace listing(s) included brand name Keyword spam, including use of  'HARLEY-DAVIDSON' as keywords.

 

Of course this is a standard reply from Linden,  Let me insist on this: we haven't used those words as spam or keywords. NEVER  
We don't know exactly where the problem is, we have some clues but It's obvious we have done something wrong. Linden won't say what it is, won't be more specific than that and this is the most we will get from them.

When people used to complain about Linden, I always took these claims with a grain of salt. I used to think people were being dramatic.  Now that this has happened to us, I have a different perspective of SL and Lindens.

Yesterday Chaplin was contacted by another bike builder and he said he was banned 2 years ago for some stupid reason about Harley Davidson too (I hav read the whatsapp screenshots in italian).  I'm not sure I can give details so I will give you a few highlights. He was permabanned for no logical reason he could think after receiving vague claims in threatening emails. He had to hire a lawyer and contact Linden. He got his account reinstated in a month. The bottom line here is that Linden was insisting that he was infringing the trademark and it wasn't after they were contacted by a lawyer, that Linden caved. They took the time to tell the guy:  "Delete this xxx, and delete that item from your inventory, and you will be ok". He would have lost all his work in Second Life for years for nothing. All Linden had to do is be more specific about the issue in the first place. For people like Chaplin that can't afford a lawyer, it's a stupid and nonsense hide and seek game.

 

LAST, BUT not the least:  We are out of this business (vehicles) on the marketplace and inworld when Chaplin can log in again. Chaplin can't risk a permabanned. We need to rethink our business strategy.   We are adults and professionals (not drama queens) We have been in business since 2007.
The cautionary tale here is that Linden will give it to you and Linden will also take it from you for non existent spam words. 🙄

[Gabs Voom]

50 minutes ago, Mollymews said:

i am not sure what you are wanting to achieve here. Have readers help you audit your friends' listings ?  Have readers agree that your friend is being treated unfairly ? Have readers agree that the LL Marketplace admin is incompetent ?  Have readers agree that the information provided to your friend by LL regarding Segway while wrong literally is true in substance ?  Have readers agree that RL trademark rules when applied to sounds-like products are vague and ill-defined ?  I am not sure what you wanting here

You are behaving like a troll (this is not an attack, just trying to be constructive about your attack against me)  I hope you are not trying to turn this topic into a drama to give an excuse to have the topic closed or deleted. (actually Linden does not need any excuse to do it whatsoever .. I know ) If you wanted to trigger me with a grain of arrogance, sorry but no ..

On the contrary of what you insinuate, all I wanted was to get feedback about this issue. A few forum users have been helpful and I thank them. They have been pointing this and this from the items. I really appreciate it, all of you. In fact we are out of the vehicle business so this is not a hidden promotion either. I admit I have been proactive, but only because I wanted to help Chaplin. Yeah, maybe I overreacted a little bit.

Finally the answer I needed came from real life, from another builder that told us it could be anything. AND YES .. it is obviously something we have done wrong .... not Linden ... I'm NOT BLAMING LINDEN The problem with Linden is that they send you messages not specific enough about the issue. They assume you are being guilty and you know what you are doing wrong and what you are guilty of. In our case, we didn't know. Damm, if they had sent us the answer hidden in a riddle, we would have been easier.
We have been running an honest business since 2007 and we never had problems like this in the past. It happens, we have seen it before. It's a sad misunderstanding where we lose and there is nothing we can do. I accept it.

 

But now that you say this, if This topic is not closed,  it could be used to help other merchants in the future to know that there is the possibility that they make a mistake on the marketplace that they are not aware of. It is possible that a merchant is convinced of doing things legally but making the same mistake than us. This topic would help them to understand. These are my conclusions and my advice for other merchants.

• Linden can say you are spamming with a trademark that does not appear in your products.
• Yes, you can have your items removed for using (or not) part of a trademark
• No, linden will not be specific about the issue and they will send you a general guideline with the error. It's your job to guess what they are saying and find the solution.
• Yes, Linden can remove your items first (without a chance of fixing them), and a few hours later send you an email ( or not ) banning you and accusing you of things you have or haven't done.
• If you get the first warning, even if you are convinced of not infringing any trademark or brand, take your time to rethink your business. (and you'd better get the first warning, not like us that we didn't get it)
• About these issues, Linden will not cave nor you will not convince them that they are behaving randomly and illogically. (unless you have a good lawyer) and even if you are a premium user.
• Trying to contact Linden to ask them to double verify your items is a waste of time. They won't do it. Always expect a canned reply.

 

Thank you, it's time for me to put and end to this. Gabs OUT.

 

 

[Cindy Evanier]

2 hours ago, Gabs Voom said:

When they ban you, you can't acces your merchant home. So now, even if he wants to fix  this, he can't modify the marktplace items. 👈 Insert any ironic joke here

Did they not add you as a manager to their marketplace store.  You can make all changes needed if so

[Gabs Voom]

39 minutes ago, Cindy Evanier said:

Did they not add you as a manager to their marketplace store.  You can make all changes needed if so

Yes, Chaplin got that suggestion offline from a user 1 hour before being banned and He could add me as manager in the last minute from his phone (he was at his regular job).  Saved by the 🔔
This morning (2 hours ago) I have figured out how to unlist all the items. At least, now that I have the bikes out, he won't receive more warnings and he is safe.

[Da5id Weatherwax]

17 hours ago, Gabs Voom said:

These are the keywords

I can see just off the top of my head, at least four motorcycle trademarks in your keywords, at least one of which is owned by Harley-Davidson.

Lose 'em. Lose any reference to "Harley Style" too, because you're implying that your product is in imitation of the trademarked one.

This isnt copyright that would involve the DMCA, this is trademark infringement and they HAVE to pursue it, because if you fail to protect a trademark you can lose it.

[Love Zhaoying]

2 minutes ago, Da5id Weatherwax said:

I can see just off the top of my head, at least four motorcycle trademarks in your keywords, at least one of which is owned by Harley-Davidson.

Lose 'em. Lose any reference to "Harley Style" too, because you're implying that your product is in imitation of the trademarked one.

This isnt copyright that would involve the DMCA, this is trademark infringement and they HAVE to pursue it, because if you fail to protect a trademark you can lose it.

Indian, panhead also..

[Ansiri]

Maybe the whole bike style is the reason? I found this old article: https://www.thedrive.com/sheetmetal/11345/remember-when-harley-davidson-sued-honda-for-being-too-harley

That article sounds crazy and what i read from internet, Indian got the style first anyway. Could the v-twins name be a trademark owned by Harley? Just saw the two above me wrote already, they found some words.

Marketplace has still lots of bikes named Harley etc., from many different sellers, some use their logo, some even with their own text, so this system is kind of weird.

You and your friend could use this as an opportunity to make something totally unique and much cooler, since you know how to build good looking stuff.

[Alyona Su]

18 hours ago, Fionalein said:

LL just plays along and so should you.

LL has no choice but to do this: it's the law. Even if I proclaimed the OP bikes are offending my Intellectual Property for Barbie Dolls and demand a take-down, LL *must* take it down, by law. Then it is up to the accused to file a counter-claim (basically calling Bulls**t on the take-down)  - then I have to prove my take-down demand is legitimate by filing legal action. If I do not, then 1) The OP can demand LL put the taken-down items back and 2) take legal action against me (plus a $10,000 U.S. fine for filing a false take-down action).

YES: It's all B.S. to the maximum. BUT, it is the way the law is written and all our hands, especially Linden Lab, are tied and they (and we) must comply. So Linden Lab cannot be blamed for any of this.

Edited July 17, 2019 by Alyona Su

[Alyona Su]

2 hours ago, Gabs Voom said:

We are adults and professionals (not drama queens)

Then quit the business or file a counter-claim the way I described in my OC - follow the rules or don't play the (legal) game.

[Gabs Voom]

Ok .. thanks for the latest replies. I truly appreciate all the replies. I think we are close to the truth now. That makes us happy and sad, it's a bittersweet feeling. What you are saying can make sense. yes. this is probably the most likely scenario.

Linden is probably right, but handling the issue poorly. We never intented to infringe a trademark, but we did. We can't argue with that.
Imagine if in the first place, we had received this email from Linden :

Quote

Dear Chaplin Tomorrow:

This is our *second* warning to you about your use of branded items, brand names, or other items containing intellectual property in your Second Life Marketplace listings. **Please be aware that any future warnings may result in your further  suspension or termination from Second Life.**

Your Second Life Marketplace listings include the following branded items, brand names, or other items containing intellectual property:

HARLEY-DAVIDSON (INDIAN)  or
PANHEAD (HARLEY-DAVIDSON)
 etc

*Marketplace Listing Guidelines*
Branded items may be listed or sold only by the brand or intellectual property owner or its authorized agents. Please review the Branding Guidelines in our Marketplace Listing Guidelines at:

Instead of a general, vague and canned reply. Things would have been completly different.

And maybe some of you could be thinking that this is very obvious, but trust me. It was not for us at all. Eventually, yes we would have probably used other keywords. But let me add another possible scenario here.  Imagine you use the word "Belle" for an item unrelated to a Disney product. However, it is flagged for infrindging the Disney trademark. Would it be so obvious then? specially if you don't watch Disney Movies ...  however, if you receive a warning from Linden saying ..  Disney(Belle)  ... problem solved, either you appeal to Linden saying it's a common word not related to Disney or you just move on and change the name of the product. No one gets hurt.

Linden has done a terrible and sloppy job here and the result is one guy banned. If Linden would have provided specific and acurate inforamtion in the 1st place, this would have never happened. Nobody is perfect and we assume our part of responsability, but not all of it.

[Da5id Weatherwax]

38 minutes ago, Ansiri said:

Maybe the whole bike style is the reason? I found this old article: https://www.thedrive.com/sheetmetal/11345/remember-when-harley-davidson-sued-honda-for-being-too-harley

That article sounds crazy and what i read from internet, Indian got the style first anyway. Could the v-twins name be a trademark owned by Harley? Just saw the two above me wrote already, they found some words.

Marketplace has still lots of bikes named Harley etc., from many different sellers, some use their logo, some even with their own text, so this system is kind of weird.

You and your friend could use this as an opportunity to make something totally unique and much cooler, since you know how to build good looking stuff.

A good rule of thumb is that as soon as you use anyone elses trademark ANYWHERE in your ad or use a trademarked logo, you WILL lose a trademark lawsuit and, sooner or later you WILL get a cease-and-desist from the trademark owner, as soon as they become aware of your products existence. You can make "basketball shoes" in SL, but if you put a star logo on 'em or call 'em "high top basketball shoes" you can expect a takedown from the Converse brand.

So you don't say "Harley style", even though H-D is the most widely known brand manufacturing that style. You instead talk about "cruisers with the v-twin engine format made iconic by so many classic American marques" - you've drawn the comparison without imitation and further insulated yourself from trademark dispute by both using generic terms and highlighting that the "style" is not a "single brand" thing.

Then you put YOUR logo on it, not theirs, making sure that you don't use common elements - like the eagles wings in the H-D logo, for example - or even stray into using a similar font for any lettering on the logo

[Alyona Su]

11 minutes ago, Gabs Voom said:

Instead of a general, vague and canned reply. Things would have been completly different.

I totally agree with you. Though, let us also put some perspective on this: there are only a few Linden Lab employees (a.k.a. "Lindens") who work the governance teams, and the Market Place Team is likely dealing with hundreds of take-down demands a day. Since the law is that a take-down must be completed "immediately" there is no time for vetting anything; they must do it quickly and move on.

So, I *presume* that the email is a canned, prewritten message that simply inserts the listing that is being taken-down. Here's another aspect to it all, and this is IMPORTANT: I have made a couple DMCA Take-Down demands myself and in that demand, I do not have to say WHY, I only have to say WHAT and also provide my full real life information and verify that I either own the right or I am an agent of the owner. I never have to explain what part of the item is offending my I.P., only that the listing is offending it.

Thus, having a better description of the offense would be better, but it is possible (and most likely) even Linden Lab does not have *that* information.

Edited July 17, 2019 by Alyona Su

[Wulfie Reanimator]

20 hours ago, Gabs Voom said:

They say our bikes are branded as HARLEY-DAVIDSON   FALSE

The search for HARLEY-DAVIDSON Marketplace  on the marketplace is this:   click here  (None of our bikes is there)

The search for Harley  gives 2 bikes ... but it must be a MArketplace Error because they are not branded as Harley Davidson

The email doesn't refer to other things on the marketplace. Harvey-Davidson is a real-life brand. To me it should've been obvious from the start not to put any brands into your keywords. Surely you must have known that Panhead, Ironhead, and Indian were related to H.D.? Why else would you have put them in there, if not spam?

19 hours ago, Gabs Voom said:

One bike from a competitor and one bike from my partner, I give you the links:

https://marketplace.secondlife.com/p/BCR-Abbot/9697799

What's really funny in its irony is that BCR has literally taken the Harley-Davidson official logo and replaced "Harvey-Davidson" with "B. C. R."

And to anybody saying "maybe it's [some word] in the description," that's not how this works at all. DMCA takedowns are done only after someone has filed one directly to LL, a simple flagging doesn't do anything. (You can't even flag with DMCA violation as the reason.) As for specific words, LL has very few words that would unlist a product and that happens immediately rather than with a delay.

19 hours ago, Gabs Voom said:

None of these bikes use the word Harley in the description or in the words and probably none of the others. But they do appear in search .... how is that possible ? 😳

That BCR Abbot product for example has loads of spam keywords, including Harley: "motorbike, bike, chopper, route, 66, harl, ey, 1, 2, 3, 4, 5, 6, 7, 8, 9, custom, expendables, skull, fire, trike, female, male, passenger, pose, mesh, race, racer, bike, biker, mesh, chopper, silver, soul, abbot" The comma in the middle of "harley" is probably why it hasn't been caught as easily, but it counts. I'll go ahead and flag that as spam.

[Orwar]

5 minutes ago, Wulfie Reanimator said:

That BCR Abbot product for example has loads of spam keywords, including Harley: "motorbike, bike, chopper, route, 66, harl, ey, 1, 2, 3, 4, 5, 6, 7, 8, 9, custom, expendables, skull, fire, trike, female, male, passenger, pose, mesh, race, racer, bike, biker, mesh, chopper, silver, soul, abbot" The comma in the middle of "harley" is probably why it hasn't been caught as easily, but it counts. I'll go ahead and flag that as spam.

   Hm, how does one see the tags on a listing? I've wondered for a while if it was at all possible - and I'm curious why male clothing for male mesh bodies appear when you've put 'Maitreya' as a search word.

   Sorry about the off-topic, just had to ask.

[Wulfie Reanimator]

11 minutes ago, Orwar said:

   Hm, how does one see the tags on a listing? I've wondered for a while if it was at all possible - and I'm curious why male clothing for male mesh bodies appear when you've put 'Maitreya' as a search word.

   Sorry about the off-topic, just had to ask.

There's two ways; Manual and addon.

If you right-click on the product page and go to "page source," you'll find a line that says <meta name="keywords" content= and then whatever the store owner typed into the "keywords" field. (It's almost at the top of the source code, right after the big wall of unreadable JavaScript.)

Since it's easy to find, people have made addons/scripts to make it visible on the page itself. This thread from 2011 has the original link:
https://community.secondlife.com/forums/topic/37317-marketplacesecondlifecom-tools-updated/

You'll need a browser addon called GreaseMonkey (Firefox?) or TamperMonkey (Chrome) to use that script.

 

Edited July 17, 2019 by Wulfie Reanimator

[Dakota Linden]

Greetings all!

While I cannot offer any comments regarding the specific issues or items raised in this thread, I would like to point everyone to the Marketplace Listing Guidelines, specifically the Branded Content section, located here:

https://marketplace.secondlife.com/listing_guidelines#branding-guidelines

 

[Mollymews]

@Gabs Voom

i am sorry that I upset you, and is true that I can be quite harsh sometimes in matters like this

when our friends find themselves in situations for which the penalties are severe, then as their friend we must ask them the hard questions. So that our friend moves their thinking from what the LL enforcers have done subsequently, to what has our friend done that drew the attention of the enforcers in the first place

when our friend says things like LL should tell us specifically what we have done wrong, we must point out to our friend that LL have already done this.  As Dakota Linden has reminded us

just looking at the images of the bikes your friend has put together. Is clear from these that your friend is quite a good bike builder. As Da5id suggested earlier: Encourage your friend to make their own branded bikes and compete their brand against the other brands in SL, particularly against all the sounds-like branded bikes

a RL example of this was the Britten. Nobody gave Britten a chance against the established racing bike brands of the day: Honda, Suzuki, Kawasaki, etc. Many people said that it was a waste of time and talent. But Britten ignored the naysayers, persevered, and achieved their goal thru innovation and creativity. A competitive and winning bike

[Da5id Weatherwax]

9 hours ago, Gabs Voom said:

possible scenario here.  Imagine you use the word "Belle" for an item unrelated to a Disney product. However, it is flagged for infrindging the Disney trademark. Would it be so obvious then? specially if you don't watch Disney Movies ...  however, if you receive a warning from Linden saying ..  Disney(Belle)  ... problem solved, either you appeal to Linden saying it's a common word not related to Disney or you just move on and change the name of the product. No one gets hurt.

I'm not an IP lawyer and in this scenario or one even remotely like it you'd be best served by consulting one. But, having been involved in IP issues professionally in my "day job" my guess is that unless you were marketing an avatar that looked like the Disney princess or a dress that looked suspiciously like a costume she'd been drawn wearing you could argue that since it is in an unrelated market and is a common feminine name that you are not infringing the mark - but that would be something you would have to resolve with the Empire of the Mouse before LL let you put the product back. Trademark beefs aren't like DMCA takedowns where the moment you counterfile they have to put it back unless an actual lawsuit is filed. If there's a trademark dispute it has to be resolved before the supposedly infringing product can come back and that resolution is entirely between you and the mark owner, LL are just spectators.

 

Edited to add:

Copyright and trademarks are very different beasts, and trademarks are the big freakin' deal for corporate IP departments. To put it in terms appropriate for the context, you've ridden into an MCs turf wearing something that they think looks too much like their patch. Now, you might not agree with that opinion but....

Edited July 18, 2019 by Da5id Weatherwax
Addendum

[Sasy Scarborough]

if this has been said sorry, I was trying to find mention but started getting crosseyed, but isn't 'chopper' branded under their banner also ? 

[Anna Salyx]

Adding a bit to the conversation before it gets too far into the past.  Harley-Davidson's stock ticker symbol is HOG.  H.O.G is the acronym for Harley Owner's Group.  The word hog has become fairly synonymous with the Harley-Davidson brand specifically, and I don't know if it's not a trademark or not, or how much it as a term is officially tied to the the brand beyond the ticker symbol.    I did see at least one of the listings used the term hog motorcycle ("Road Hog").  I've not gone delving into any of the listings to see how common that term is being used but it might be a key word term that is being used to flag motorcycle type products as infringing.    Just a thought added to the conversation.

[Fionalein]

3 minutes ago, Anna Salyx said:

 I did see at least one of the listings used the term hog motorcycle ("Road Hog").  I've not gone delving into any of the listings to see how common that term is being used but it might be a key word term that is being used to flag motorcycle type products as infringing. 

It is a commonly used word ... it might be something the harley owners group deliberately associated with by choosing their acronym (god knows why they chose to though).

https://en.wikipedia.org/wiki/Road_hog

[Codex Alpha]

From my understanding of the LL IP page, it would fall more under "Trade Dress' rather than straight up use of the word "Harley Davidson".
Many, many, many people create 'replicas' of real-world products, and have no knowledge of what trade-dress entails..
I will use an image I used in a post "So you make Original mesh, huh" to demonstrate the point. Just ignore the irrelevant text as it is used in a different context, but I can use the same image to address "Trade Dress".

These are 3 amps I have modeled, one is a 'replica' of a Marshall brand amp, the next is an 'inspired' design and the 3rd a more 'experimental' or stylized version.
Even if i didn't use any Marshall branding keywords, or advertising on the first, they COULD (didn't say WILL, they COULD) file some sort of IP claim based on how the amp looks, which is clearly intended to replicate, and therefore 'compete' with the original product.

Best always to concept and design your own work, and be 'inspired by' existing works, than copy real world products.

Caveat: Original works don't sell as good as replicas, so the market tempts many to stick with popular art and well known products.

[Fionalein]

7 minutes ago, entity0x said:

I do not see why that person had to copy Marshall's "trademark" varying dimensions through all his 3 examples though ... they are impractical in RL and almost no other amp producer does that silly stuff - keep those dimensions consistant - your roadies and logistics team will appreciate it.

Edited July 28, 2019 by Fionalein

[Codex Alpha]

On 7/17/2019 at 6:49 AM, Alyona Su said:

LL has no choice but to do this: it's the law. Even if I proclaimed the OP bikes are offending my Intellectual Property for Barbie Dolls and demand a take-down, LL *must* take it down, by law. Then it is up to the accused to file a counter-claim (basically calling Bulls**t on the take-down)  - then I have to prove my take-down demand is legitimate by filing legal action. If I do not, then 1) The OP can demand LL put the taken-down items back and 2) take legal action against me (plus a $10,000 U.S. fine for filing a false take-down action).

YES: It's all B.S. to the maximum. BUT, it is the way the law is written and all our hands, especially Linden Lab, are tied and they (and we) must comply. So Linden Lab cannot be blamed for any of this.

Yet nowadays, it is very risky to file a DMCA and be in error, as courts have mitigated false DMCA filings by having harsh penalties on them.
So companies aren't really so quick to do this anymore unless they feel they can prove, and win, their case in court.

Related: https://www.gerbenlaw.com/blog/false-dmca-takedown-notices-ninth-circuit-holds-that-copyright-owners-must-consider-fair-use-before-issuing-take-down-notices/

[Codex Alpha]

Fionalen, not sure if you just want to fight or not, but the examples include
1) Replica of existing Marshall amp
2) Inspired version (completely legal to sell on Second Life in all ways)
3) Original version (concepted from sketch, blocked out and modeled, also completely legal and "original work")

Art is in the eye of the beholder, so let's just let me worry about that, or those who want to purchase those designs.

The inspired and original versions would be safe from any IP claim, as they are not trying to skirt any regulations, or take advantage of any trademarked works.

This is an important line from the link provided earlier which should clarify what creators should do in SL, or Sansar, or ANY 3d virtual world and marketplace that will crop up;
" In Second Life, we hope creators will use their imagination to make original content. Some create things that are inspired by real-world objects, like cars or jewelry. When you do that, please make sure you're not improperly using another's intellectual property – for example, a trademarked logo or brand name, a distinctive product appearance (known as "trade dress"), ..."