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E! TRUE HOLLYWOOD SERVED - TABBERONE v. E!
Feb. 3, 2004
The first Emmy screener VeRO Abuse lawsuit is now proceeding.
On January 27, E! Entertainment was served in the matter of TABBERONE v. E! ENTERTAINMENT TELEVISION, Denver Federal Court, Civil Action No. 03-D-2234(PAC) .
E! airs the Howard Stern Show and the E! True Hollywood Story series.
Karen Dudnikov and Michael Meadors, whom I consider to be the Howard Stern and Robin Quivers of trademark and copyright abuse on eBay, filed the lawsuit after E! served eBay with a takedown notice (VeRO notice) for an E! Emmy screener that the couple had up for auction:
http://www.tabberone.com/Trademarks/HallOfShame/E/E.shtml
Of special significance for Emmy sellers, Tabberone also filed a US COUNTER NOTICE against E! for the same auction. In response to a Counter Notice, E! is required by the DMCA to either allow the eBay auction to be reinstated, or to file a restraining order (TRO) lawsuit against the seller within 10-14 days.
I can only imagine that the E! people thought this was an elaborate prank being pulled by Captain Janx, because the Director of E! Business and Legal Affairs, H. L. Silets, and his staff did not challenge the Tabberone Counter Notice.
Tabberone was issued the VeRO notice by E! assistant Janel Tamares on November 17, 2003, for the E! TRUE STORY JAWS & Michael Essany Emmy DVD. This is the Emmy screener with no warnings on the shrink-wrap or the package.
Tamares responded to Tabberone on November 17 stating:
Please note that the E! DVD contains a warning which states, "Distribution or sale expressly prohibited." This warning is located on the DVD itself next to E!'s copyright notice along the outer edge of the DVD.
This indicates to me that when E! shows up in Denver Federal Court, the E! attorney is going to go for new case law by arguing the X-RAY VISION DOCTRINE. E! will have to argue that it is the eBay seller's responsibility to use his x-ray vision, and see through the shrink-wrap and the dvd case to the dvd itself, where the warning not to sell is located.
There is nothing in the eBay User Agreement requiring sellers to have x-ray vision. Even frequent Howard Stern guest Crackhead Bob can tell you this...I think.
While it is not fair to imply that E! legal should have consulted Crackhead Bob about this case, Silets and Tamares would have done well to consult Frank The Angry Dwarf before his passing.
http://www.hankthedwarf.com/flash_dynamic/mail.html
Frank was an expert on Rock 'N Roll trivia and the music business. I believe Frank could have explained to E! legal that the sale of unsolicited promo items, including promo CDs and promo DVDs with warnings on the outside package, is lawful.
The JAWS Emmy screener has no warnings on the outside. Case closed.
I made several calls and sent emails to E! last week. E! paralegal Vince Rizzi took my call at one point, but would not comment on Tabberone. Rizzi has also issued VeRO notices for the JAWS Emmy dvd.
Since E! did not challenge the Tabberone Counter Notice, I wanted to know if all the Emmy sellers can now sell the JAWS Emmy DVD. I received no response from E!.
My guess is that Silets and his E! staff keep hoping that the next legal notice from the Denver Federal Court will say, "Baba Booey, Baba Booey! Howard Stern Rules!", and that all of this will have been a dream.
Jay Koval
Emmy Seller Newsletter Feb. 3, 2004
User Comments
(These do not necessarily reflect the beliefs of this site)
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fjones987
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Date: February 4, 2004 @ 2:08 AM
Sorry, this is like sticking in a small fine print notice on the inside of any package stating that you now owe them a fine for 10 million dollars upon opening it and expecting to be paid. Sorry but what the consumer sees and what you've told them (generalized statements, but accurate) is all you can hold them to. Slapping some notice inside the container which can't even be read before it's opened and no warning prior to that means you're shit out of luck.
Go home crying E! |
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purfus
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Date: February 4, 2004 @ 8:54 AM
It's jaws.... That movie is like a billion years old.... |
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raoulduke1
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Date: February 4, 2004 @ 9:44 AM
He should get attorney's fees. |
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compmore
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Date: February 4, 2004 @ 1:49 PM
probably why they didn't respond to the counter |
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StonedGecko
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Date: February 4, 2004 @ 4:34 PM
The software industry has been doing this for years now by putting the license agreement inside the box and telling you that you can't return an open box software. |
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gdZiemann
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Date: February 4, 2004 @ 6:58 PM
"Frank was an expert on Rock 'N Roll trivia and the music business. I believe Frank could have explained to E! legal that the sale of unsolicited promo items, including promo CDs and promo DVDs with warnings on the outside package, is lawful."
Even more difficult, they have to convince eBay. eBay's rules overrule the law. Just because something is legal to sell, doesn't mean you can sell it on eBay. That includes your own music, if you fail to abide by their very particular rules.
And all someone has to do is claim infringement to have an eBay auction removed. They don't have to prove anything. |
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HollywoodDef...
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Date: February 4, 2004 @ 10:54 PM
If Tabberone wins this suit against E!, it will go a long way towards freeing up the sale of all Emmy screeners on eBay.
Remember that when a VeRO member such as E! has your auction removed by eBay for alleged copyright infringement, you have the legal right under the DMCA to file a COUNTER NOTICE with eBay for that auction.
If the VeRO member ignores your CN, then eBay will reinstate your auction.
You also have the right to simply file a lawsuit against the VeRO member without going through the Counter Notice process.
Tabberone has filed many successful trademark abuse lawsuits, including ones against Disney and Major League Baseball.
EBay allows the sale of Emmy and Oscar screeners, except for the ones the studios VeRO.
The studios generally allow the Emmy screeners with no warnings on the outside to be sold. For some reason, E! doesn't want to follow the industry on this policy. |
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flibbertygibbet
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Date: February 5, 2004 @ 8:35 AM
and howard stern is like a broken record that just keeps goin on and on with the same old crap !!! makes me want to puke, ah but saved by the on and off button !!!!10/4 flbgbt |
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