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eBay WE THANK YOU FOR SHOPPING WITH US! PLEASE NOTE THAT WE TRY TO SHIP ALL OUR ITEMS IN BOXES UNLESS PARCEL/FIRST CLASS RATES APPLY! INTERNATIONAL SHIPPING IS CALCULATED WHERE YOU LIVE THERE IS A $3.00 SURCHARGE TO ALASKA AND HAWAII Listing Information: You are bidding on a: Lot Of 30 Vtg 1835 R Wallace Plated Silverware Monogrammed E Lourve DuBarry . Thank You and Happy Bidding! Payment Information: Please Notify us within 24 hours of Auction end, with how you intend to pay. Sales Tax will be applied by the platform if your state requires it. All items not paid for within 4 days will be re-listed and negative feedback given. Shipping Information: While we have a 2-day handling time we try to ship all packages within 1 day of pay unless its a weekend or holiday. We ship only to the address on file, the buyer protection guidelines. General Information: We try to describe all items as accurate as possible. We Guarantee Fast and Friendly service, and will do our best to make sure that our product is the best for your money. Our proven feedback shows the results, and if we can ever help you find that one of a kind, please just let us know. Please check our store for other great items. Although our items come from a Smoke Free Household, a previous owner may have had pets or smoke. Credit/Return Policy: We want you to be happy, and we will try everything possible to work things out, but in the event you are still unhappy we will gladly process a return or refund according to the platform policy. We do not pay to have packages shipped back. If you have any questions please contact us, or visit our website. Ebay Feedback: We want all of our customers not only to be happy with their purchase, but we want them to return. If at any time you feel you cannot leave positive feedback or 5 stars in the detailed seller ratings area, please contact us immediately to rectify the situation. Thank you in advance for your business and happy shopping! Please visit our store for more great items! NOTE: We are not an authorized dealer, distributor, reseller or wholesaler for the brand listed in this auction. I am not endorsed, sponsored or affiliated with the brand name owner. All brand names, logos, trademarks and intellectual property belong to the rights owner and are used for description purposes only. *** Notice to Ebay VERO Program*** The description for this item has been written by us. The pictures have been taken with our camera & uploaded to our computer. All available merchandise is our personal property and has been obtained legitimately. In compliance with eBay policy and my own moral standards, I do not in any way offer or condone the production or sale of counterfeit items. All items I list are 100% authentic. If there is a (UPC) Universal Product Code or (SKU) stock-keeping unit number, It will be clearly illustrated in this listing for further verification of authenticity. Under Fair Use, trademark and copyrighted items allow a seller to use the name and a picture of the item they are selling. If I am offering to sell a brand ‘X’ item, I can describe it as brand ‘X’ without infringing on the trademark. International law is consistent on these issues. The Lanham Act also specifically recognizes the “fair use” of a company’s trademark. The Fair Use Doctrine grants the use of a trademark under certain conditions. Copyright laws: Copyright law, like trademark law, grants a lot of exclusive rights to the holder of the copyright. It also states specific exceptions. The First Sale Doctrine is an important part of the trademark law. The First Sale Doctrine states that once the owner of a copyrighted items sells it, or gives is away, the owner can no longer control what is done with the item. The First Sale Doctrine prevents the copyright owner from interfering with your use, alteration and subsequent disposal of something you purchased or received as a gift. The Fair Use Doctrine permits others to use a protected mark to describe aspects of their own goods, provided the use is in good faith and not as a mark. See 15 U.S.C A§ 1115(b) (4). That is precisely the case here. The “offending” use described is merely fair use to describe the product(s) being offered for sale. The Fair Use Doctrine permits use of a protected mark by others to describe certain aspects of the users own goods. See CarFreshner Corp vs. S.C. Johnson & Son, Inc 70F.3d 267, 270 (2d Cir. 1995) A. The Use of Another’s Trademark In A Descriptive Sense It is a basic principle marking an outer boundary of the trademark monopoly that, while trademark rights may be acquired in a word, symbol or device, acquisition of those rights does not prevent others from using the word, symbol or devise in good faith in its descriptive sense, and not as a trademark. “This principle is of great importance because it protects the right of society at large to use words or images in their primary descriptive sense, as against the claims of a trademark owner to exclusivity.” Car-Freshner Corp. v. S.C. Johnson & Son, Inc., 70 F.3d 267, 269 (2d Cir. 1995); see Champion Spark Plug Co. v. Sanders, 331 U.S. 125 (1947) (registering proper noun as trademark does not withdraw it from language, nor reduce it to exclusive possession of registrant). To come within this fair use defense a person must make use of the other party’s trademark (i) other than as a mark, (ii) in a descriptive sense, and (iii) in good faith. See 15 U.S.C. §1115(b)(4). B. Reference to the Owner of the Mark or the Owner’s Goods or Services Another species of the fair use defense is the use of a mark when referring to the owner of a mark or the owner’s goods or services. Once again, this defense is only available if the unauthorized user is not using the term for purposes of source identification and the use does not imply sponsorship or endorsement by the trademark owner. Obviously, a great deal of useful social and commercial dialogue would be all but impossible if speakers were under threat of an infringement lawsuit every time they made reference to a person, company or product by using its trademarks. In New Kids on the Block v. North American Pub., Inc., 971 F2d 302 (9th Cir. 1992), the Ninth Circuit affirmed summary judgment in favor of the defendant newspapers which had used the trademarked name of the band “New Kids on the Block” to refer to the band in polls it conducted for the purpose of stimulating newspaper sales. The Court referred to a “class of cases where the use of the trademark does not attempt to capitalize on consumer confusion or to appropriate the cachet of one product for a different one,” noting that “[s]uch nominative use of a mark – where the only word reasonably available to describe a particular thing is pressed into service – lies outside the strictures of trademark law: The Ninth Circuit stated that a commercial user is entitled to a nominative fair use defense if the user meets the following three requirements: (i) the product or service in issue must not be readily identifiable without reference to the mark; (ii) only so much of the mark may be used as is reasonably necessary to identify the product or service; and (iii) the user must not do anything to imply sponsorship or endorsement by the trademark owner. New Kids on the Block, 971 F2d at 308. C. The First Sale Doctrine The unauthorized use of another’s trademark is also permitted under the “first sale” doctrine. Under this doctrine a business that resells genuine, non-adulterated goods bearing a true mark cannot be held liable for trademark infringement, even if the distributor had no authority to do so from the actual trademark owner. See Polymer Technology Corp. v. Mimran, 975 F.2d 58 (2d Cir. 1992). “After the first sale, the brandholder’s control is deemed exhausted [and d]own-the-line retailers are free to display and advertise the branded goods. Secondhand dealers may advertise the branded merchandise for resale in competition with the sales of the markholder . . . .” Osawa & Co. v. B&H Photo, 589 F.Supp. 1163 (S.D.N.Y. 1984).
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