Trademark Law And Selling Used Equipment To The United States

Aside from the double-posting: you may wish to read the guidelines: the only not-so-recent photo company that used to drive tourists crazy was Pentax and Honeywell Pentax. One (Pentax) was the international brand and the other (Honeywell Pentax) was the sole import name for the U.S. market.

Next time, don't post a photo of the lens. And let the prospective buyer e-mail you for a description.

Am I missing something? You tried to list a used item on Ebay and this Bob Salomon is claiming Trademark infringement? Are all listings on Ebay supposed to state "4x5 camera for sale $1200. E-mail for pics" from now on. I think that the used gear section here might start to see alot more traffic if that is the case There are 2 sides to all stories. I'd be courious to hear Mr. Salomons reasons for his actions.

This casts both HP and Ebay in a bad light. And I absolutely will take this sort of thing into consideration when I look to purchase any new products that HP might make. Why should I buy from a company that acts in this way? And people act amazed that the US public has such a low opinion of large "institutions" such as govt and big business.

What else does HP Marketing sell? That way we'll know what not to buy anymore because the resale value is zero.

Note that HP Marketing isn't the only one who is up to these antics. From Mamiya America website (under Gray Market and Trade Mark Warning):

Mamiya America Corporation has registered the MAMIYA Trademark with the U.S. Patent and Trademark Office (PTO), and has recorded this mark with the United States Customs Service for import protection in accordance with 19 C.F.R. Part 133.

Under Section 526 (a) of the Tariff Act of 1930, the importation of any foreign-origin merchandise bearing the MAMIYA trademark, without the written consent of Mamiya America Corporation, is unlawful and prohibited. Unauthorized importations are subject to seizure and forfeiture by the United States Customs Service.

Mamiya America Corporation has directed Customs to enforce this trademark aggressively, and to prohibit the importations of "gray-market" merchandise. Mamiya America Corporation will also pursue all of its available remedies for injunctive relief and damages against any persons who import, distribute, sell or otherwise deal in gray market merchandise bearing the Mamiya trademark.

Luckily, I'm in Canada so this isn't an issue for me. I'm not sure what recourse Americans have over this or what the larger issue behind all of this is but it seems a bit heavy handed, if you ask me.

They are distributers for quite a bit of photo gear. You can do a search for "HP Marketing" if you really want to find their webpage (I have no intention of publishing the url to give them free hits).

In addition to Heliopan, they distribute (in the USA) Kaiser, Giottos (not their ballheads), Rodenstock, Linhof, Braun, Wista, Gepe, etc. Quite a list. I don't know if they are exclusive distributers for these lines (they are the only authorized importer of Heliopan).

Michael

Note that as far as I know "HP Marketing" has nothing at all to do with HP (Hewlett Packard), the makers of digital cameras, printers, scanners etc., so don't boycott HP!

Sounds like they are WAY overstepping the mark. Companies who are desperate enough to be worried about such things are either doing something very wrong with their own marketing or realize that the writing is on the wall and that a global market will force them to bring their prices down to a realistic level. Mamiya seems to be a good example and all their antics do is drive many of their US customers to buy from the UK.

It is one thing to enforce trade remedies against unlawful importers. It is another to pick on innocent people merely selling their used items to others. If that's the way they want to be, fine. I'm in the market for filters right now. The brand I will avoid is easy to figure out. Letting the distributer, or better yet, the manufacturer know of the result of these tactics will be useful. Isn't the empowerment of the internet great?

Bob Atkins makes a good point about HP Marketing and HP/Compaq. Remember to keep that in mind.

I'll be a few letters to the various companies that HP distributes would bring some pressure on Bob Salomon's head. Would you want your products distrubuted by an ass like this?

HP Marketing has been around for many years, I presume Hewlett-Packard must be aware of it and that it isn't violating any trademarks or some action would have been taken by now. It always makes me think of the "real" HP though.

If they'd called it "Disney Marketing" I'm sure they'd have had a few more problems though...

"For a start, I wish I could have seen the ebay auction listing - one of the most common reasons listings are removed is copyright infringement, of photographs or text."

Hi John,

It is your burden to demonstrate to Mr. Salomon that the item was made in the US. This you asserted --but-- did not provide any information to evince that fact. Therefore it would seem to me that Mr. Salomon acted reasonably and within his rights as the trademark holder. This I state as an opinion.

In addition to finding the attacks on Mr. Salomon distasteful, I also am of the --opinion-- that some, such as those of Michael Bender, are libelous and do not belong on this forum.

I am not affiliated with Mr. Salomon in any way and do not know of him beyond the info posted here.

John, I suggest you find some indication that the item was made in the USA, and re-post your e-bay auction with one of the pictures clearly showing this. Also, quote the relevant section of the Tariff Act and state that your sale of used American made equipment falls within the allowance not covered by the Act. Again, my opinion.

If you are incapable of providing this info then please leave Mr. Salomon to pursue the protection of his intellectual property. Again, an opinion on my part.

what they were/are really doing is restricting American citizens from buying used (or new) Heliopan filters from ANYONE other than HP Marketing dealers.

Why don't you just mail them a friend in the US, and have them list them and sell them on e-bay. There are currently 11 heliopan itmes for sale there. If you don't know anyone, I'll do it just to get back at the arrogant sob.

It is interesting that protecting ones trademark gets such an attack; Would you care if another Ebayer was selling your photos? Or your "used photos"? What is Ebay didnt care; and all ones copyrighted photos were sold bootleg; and there was no mechanism to halt sales; that violate others trademarks and copyrights? If many sales are allowed; and not contested; the trademark or copyright might get hit with a zillion cheap knockoffs.

Trademark protection is a really big deal. Many times Ebay Sellers remove the companies logos; to avoid lawsuits. Factory/Box store returns are often flushed out on Ebay; after "repair"; with their logos removed.

It seems that "Heliopans" is what set the alarm off..........many other used items once sold/ marketed by HP Products; are sold on Ebay; with no problems...........

It was not my intention to start a flame war about Bob Salomon or to question the ethics of American policy on grey market imports. American has the biggest market in the world. I know of many photographers living outside of the United States that purchase camera equipment from the US because companies like B&H and Ritz Cameras offers such attractive prices. But companies such as HP Marketing and MAC would like everybody to believe that it is illegal to import ALL products that bear their trademarked names. This is simply not the case with products that were purchased from authorized dealers in the United States, they are legitimate US domestic products and their re-importation is perfectly legal. Not being able to sell my Heliopan hood to the US is not a big deal for me, but I posted this message for the photographer living outside the US who purchased, for example, $10,000 worth of ProFoto equipment from B&H, but is now unable to sell his now-used ProFoto gear to a US buyer because MAC is telling him that it’s illegal, which is total bull. I think one of the reasons companies like HP Marketing and MAC get away with this is because most people don’t know about this exception, which is why I posted here.

I’m also not sure why people in this thread are bringing up issues about copyright violations on Ebay. As William Hennessey points out “In contrast to the patent right and copyright in the United States, under which the right owner may exclude all others from selling or distributing articles covered by the right, the "trademark right" is merely the right to prevent others from confusing one's customers in the marketplace, and not an exclusive right to sell.”

This described below, is a trick, so it won’t solve the legal problems, but can help Canadian eBay-ers to sell used equipment in the US without being bothered by scams like BS. And it is easy to do: change your eBay personal information by typing USA instead of Canada and leave the rest unchanged (code, city, province, etc..., if you want to give them – I don’t, and I send them by email at the auction’s end, still I’m a buyer only). Also, as a buyer I didn’t needed to change my registration from Canada to the US, but found out about this trick from a Canadian seller. And he registered in the US for another reason: most of the US buyers are doing searches with “located in the US” instead of “available to the US”, so, a Canadian seller will be less visible to US buyers, unless he registers in the US – so he said to me. Now, I think that this trick could also help to avoid problems and scams like these ones. Just a suggestion.

Next, time just refer to it as "a well known german made filter who's name begins with 'H' and end in 'n' and also contains the letters 'e-l-i-o-p-a' but who's name I'm not legally allowed to use due to enforcement of trademark restrictions by the US importer of this product".

We'll all know what you mean, nudge, nudge, wink, wink.

I presume that that whoever is searching ebay for the word "Heliopan" won't find the ad either.

That or grind the name "Heliopan" off whatever you are selling...

Bobs advice works; and avoids the first "cull" of their witch hunt; but will reduce your exposure when folks search for the forbidden word.

Halting imports to the USA is not new. In the 1960's many eastern bloc photo lenses had a different name; to avoid the seizure. Some actually had different concentric trim rings; which covered the "forbidden" trademark.

Ebay is just a big bulletin board; they are going to side with he owner of the trademark; instead of one lone seller.

We once sold an item on Ebay; and had to stop. We are a dealer for the item; and were selling it at the same price as others with websites. Ebay killed the buy it know auctions; because our vendor told them to. We are only a middle grade dealer; and are only allowed to sell the items in the local; sub-state zip code area; ie within only about 100 miles. The vendors that buy more products are a higher grade; and are allowed to sell anywhere; even on the internet; but not Ebay. Now our customers across the street buy the vendors items on the internet; and not from us; and avoid the state tax; and get a super price. Now our goofy vendor wonders why we buy product from a better vendor; and have abandoned them. We sold all our old vendors junk we had on Ebay ; to a law professor in Florida; who got a great deal....; but didnt care about the legality of it............'s

The fact that John cannot show the item was US made--because it isn't--only enforces Mr. Salomon's position. So don't import this item into the US without Mr. Salomon's permission.

Aa for not referring to the trademark in the sale, it is my opinion that this is just an attempt to circumvent the law, which clearly states the issue is--importation-- not 'description'.

Remove the trademark from the item and you'll have no problem, in my opinion.

Also, check on the extent afforded by the trademark, to see if the trademark is being used in the context in which it was granted.

"It is interesting that protecting ones trademark gets such an attack"

I have no problem at all with a company legitimately protecting their trademark. Nor do I agree with the personal attacks on Mr. Salomon regardless of what I may think of his business practices.

If I, as a Canadian, was importing new Heliopans from Germany and then offering them for sale to US buyers on eBay, HP Marketing would certainly be within their right to stop the imports to protect their trademark as the exclusive authorized distributor of NEW Heliopan products in the USA. I would be a dealer trying to sell my products in a market where I do not have distribution rights.

But that is not what we have in my case or John's (and I presume others). It is a case of a large corporation blocking a private sale between two individuals of USED photo equipment. I simply wanted to sell a couple of filters, originally purchased in the USA, that I no longer needed. Apparently HP Marketing sees this as a threat that would undermine their Heliopan monopoly and artificially high pricing. It's not a big deal to me as I could find a way to sell them elsewhere if it really mattered.

Consider this. A person living in NYC can walk in to B&H, purchase 50 NEW Heliopan filters, put them up for auction on eBay and offer to ship worldwide, and neither HP Marketing or eBay will care. I buy two filters from B&H, import them to Canada (without problems, no duty, FREE trade in goods), use them for a couple of years, put them up for auction on eBay.ca, offer to ship to the USA and get shut down. That's certainly fair, isn't it? Why would I ever want to buy another Heliopan if this was the kind of treatment I would receive from their distributor if I ever decided to sell them? I have no intention of supporting this kind of business practice, and will buy products in the future from companies that compete fairly in the marketplace.

Here is a little reality check for us:

As was said, Mamiya protects its trademark just as ferociuosly as HP does theirs, so in reality, no foreigner should be allowed to enter the US with a Mamiya camera in his luggage, on his/her shoulder. Am I interpreting the "law" correctly? Has anyone seen a tourist group anywhere where one person sports such an illegal "import" into the USA? Can this poor tourist be arrested for having counterfit goods? Just wondering about when my relatives come visit and have a Heliopan filter on their lenses ... Are they jail bound? Confiscation subjects?

John: Assuming what the USPTO states is correct, you could sue HP Marketing for anti-trust violations. The Gray Market area is legitimate - all that needs to be listed is the fact it is a "gray market item." One cannot pretend a gray-market item, which has no warranties or different warranties (most of the time) is a made for U.S. sale item. That would be misrepresenting the item. But with the right disclaimer it is perfectly legal. That is why you see so many gray-market goods in the photomagazines and on some of this site's sponser's sites. - In your case, as the USPTO allegedly stated, your item is not even "Gray Market". Usually when a company sues for trademark/copyright ... infringment - the Answer includes a counter-claim for "anti-trust" violations. A recent Supreme Court ruling puts this all in question.

What HP Marketing has done appears incorrect (based on the facts you have given) - as to Ebay, I am sure buried in some disclaimer/waiver you signed you agreed to their rules. Sending an email to Ebay, is a waste, they know they are the only dance and town.

Bob Salomon is hired by different groups to police the various group's intellectual property rights - he is doing his job, but I fear he has overstepped the bounds based on what you have stated.

MJA

You may like to have an opinion from someone outside the US. I'm italian, suppose I'm coming to US on a trip and I have a Heliopan filter on my camera. Do you think it would be wise to declare the filter at the US customs before entering your country? I am not planning to sell it to any US citizen, but who knows... Perhaps it would be wiser to leave the Heliopan filter at home, buy a new one in the US, then sell it before leaving? Or (as an alternative) I may leave my Heliopan filter at home and rent one in the US; does Heliopan's distributor offer such a service? I agree with Mr. Freeman: the private sale of USED photo equipment between two individuals (although it takes place on eBay) has nothing to do with trademark. In addition to that, it takes very little to check the feedbacks on eBay and see whether the seller is running a businesss with Heliopan filters, or he's simply selling one piece of used equipment, in which case (I believe) both eBay's and HP's attitude were wrong.

Emanuele,

You don't need to worry about bringing your filter with you on your trip. Import laws such as this are only for goods that will be left in the USA. You are allowed to bring your filter to the USA and take it back home with you. Although according to the trademark laws, you wouldn't be allowed to sell the filter in the USA.

Regards, Chad

Guys: Although an older article - I think it explains things rather well.

http://www.supnik.com/parallel.htm

this guy's website http://www.supnik.com/ - has other good reading which should clarify your situation nicely.

MJA

It's odd that a company like Canon doesn't really care about this issue. In fact, far from attemting to stop import of "parallel" goods, they even offer free warranty service on them!

Needless to say this tends to result in MUCH stronger customer loyalty than companies who attempt not only to prevent individuals from selling their goods into the US but also refuse to service them even if you offer to pay the full cost of service!

you can follow some resonse by Bob Salomon here:

http://www.largeformatphotography.info/lfforum/thread.php?topic=496683

"If you think about it, he is probably thinking he is better off without the business from the people who have expressed such a low opinion of him."

I seriously doubt that is what he is thinking, alienating your customers is ALWAYS bad for business..

I myself have easily spent over $10,000 in the past 24 months on photo and photo-related equipment. And I will likely spend that much again in the next 2-3 years. While I can't speak for everyone, between the pros and serious amateurs many people that I know of on photo.net seem to spend an equal, if not greater, amount on photo gear.

And you are trying to tell me that HP marketing is better off without people like the photo.net members? I'm fairly sure that you are wrong. But we could always call Heliopan, Linhof, Giotto, or Rodenstock (all companies that are distributed by HP Marketing) and ask them what they think.

DAvid, that is you, but perhaps Bob S does not feel the same.

Josh, tell me of those $10,000 how much of it went to products HP marketing distribuites and did you pay full retail price or did you buy them through a gray market importer?

Now let me pose a question to you two. Suppose you spend half a million dollars obtaining a trademark. The you find that "Camera world, the shop for all things photographic" starts importing the item for which you have a trademark. You take them to court and they produce the e bay sell, so then the court rules that since you allowed that sale, you have effectively waived your trademark rights and have no further recourse. How would you feel?

Could this happen? maybe yes, maybe not. But are you willing to bet on the courts taking your side and being reasonable. Are you willing to bet your half million dollars that the court would say, "ah well, this one just one guy selling on e bay, so we will overlook it in this one instance"......I would not.

As we all know, what seems perfectly reasonable and a "no brainer" to us, the courts have a way to screw it and make your life miserable. While I understand the feelings his action has generated, and I agree with you on the most part, we dont kow the whole story, or the special circumstances that might have forced him to do this.

In the end the opinions expressed here are not the issue in my case, it is the way they have been expressed and the encuragement by the moderators by failing to moderater the somewhat less then reasonable responses.

I just want to thank everyone for this thread, as someone who is very very new to the photography world, I found the information informative and beneficial.

Salomon has already contacted me twice trying to sell me something; I can guarantee you it'll never happen now.

This thread has now been heavily edited to remove "ad-hominum" attacks by forum members on each other and on Mr. Solomon.

Members are welcome to discuss issues and engage in debate, but they are not welcome to refer to each other as "scum" or varients on that theme.

Moderators do not have the time or inclination to examine every post in every thread in detail. When threads are edited it is done using a chain saw, not a scalpel, so the results are often untidy. Rather than change or edit parts of anyone's posts, they are simply removed, sometimes rejecting the good with the bad.

Good job Bob. regards, dave.

If every marketer/distributer acted like HP Marketing then eBay couldn't exist. Except for home-made items. Even if HP Marketing was within their "legal rights", the bad will created doesn't make it worth it. They need to think these things through before beating up on a little guy.

Suing a site giving them free advertising would be bad business. :-)

As for Hewlett Packard perhaps reminding HP Marketing that "HP" is previously taken, there is actually a division of Hewlett Packard called "HP Marketing Communications," though it is not trademarked (nor is HP Marketing).

Trademark holders spend large sums of money importing, distributing and advertising branded products. They believe that "grey market" imports damage their business (which, in the short term, they do), and so they use the law to aggresively protect their legitimate business interests. Sometimes they are too aggresive and overstep the mark, as appears to be the case here. But there is little that we individuals can do about this. So my suggestion is not to dwell on it and move on - take some great photos and explain to your friends why you prefer to use brand X rather than Heliopans.

At least we can be content that overly aggresive actions like this will drive down the second hand value of these goods. And over time this will factor into the market value of new goods - after all, who wants to buy something that will depreciate in value quickly when there are equivalent products that keep their value (remember that one of the reasons that Hasselblads are expensive is that their second hand value is also high). This in turn will force companies to change their business practices.

So next time when you buy a camera product, check out the resale price. And if this is markedly different from other equivalent products then factor this into your buying decision.

Edward said: "As for HP Marketing, if this is the kind of business practice they are doing, then thank you for the info & I will shy away from their products. WHat's the use of buying a certain camera item & later finding out I won't be able to sell it? They can count me as one less customer because of their stupidity."

Hi Edward,

I just checked e-Bay and there are 20 active auctions selling Heliopan(R) products. I see no evidence that HP Marketing in any way is preventing resale of items. It seems you can be rest assured that this is not an issue for you on re-sale.

On the other hand, if you choose to IMPORT such items for sale into the US, you would appear to be violated Federal Law, as John Chen has pointed out.

Surely you don't wish to ask Mr. Salomon or HP Marketing to aid and abet in that behavior?

I must say that the more vicious the attacks, the more I become interested in Heliopan(R) products for my next lens and filter/hood purchases. Seems like a quality product sold through a legitimate business operation. I like that. Integrity counts.

Many thanks.

Nathan: I commend your instincts to abide by the law BUT, Grey Market products are perfectly legal in the US. If not, sellers of such products like B&H and Badger Graphics would have long ago been hauled into court by those firms using TRADEMARK TRANSPLANTS as monopolistic umbrellas. Whoever sold you on the idea that in the US, grey market products are illegal did a good job on you, but if I were you I would not buy a used car from them. After all this, I would not even buy a new anything from the same. What is happening is that TRADEMARK TRANSPLANTS are used by some firms as umbrellas to hide the hands picking your pockets. For photographers, the solution is simple, buy elsewhere.

As an example, firms like Canon do not use such shady tactics and will even service Canon equipment in the US regardless of the secondary origin of the product. IT IS NO COINCIDENCE THEN than products imported by Canon into the USA bear a lower price ratio vs. Grey than those distributed by trademark transplanters. It would be in the interest of photographers to create a directory of firms that like Canon use trademark law fairly and equitably to make photographers aware of which products are SAFE BUYS and which are not. In essence, products distributed by TRADEMARK TRANSPLANTERS are not always yours to own and dispose as you see fit, even if you initially paid more to own them. Wake up Nathan. This is the real world!

Julio; some grey market photo items are restricted from entry into the USA. This is not a shady practice; but actually the law on who allows importing of that brand name. This goes back many many decades. Like copyright ownership; there is an actual reason for these laws. Many post WW2 cameras and lense from the Eastern Soviet Blocs had names "tessar" "Zeiss"; that were claimed by both sides. Many times when imported to the USA; the names were changed or removed.

If the law is not enforced; the ownership gets ignored. I suppose those who dont mind skirting the law dont mind if their favorite photos are used; without permission or payment. What the heck its only one photo they didnt pay you for!

Julio said: "Wake up Nathan. This is the real world!"

My dear Julio,

Many thanks for your concern, but kindly be aware that I am most wide awake, cogent and keenly alert. Many thanks for thinking of me and my welfare though. I trust all is well with you also. Best wishes.

Kelly: The example you use of the "Tessar" is a perfectly valid example of trademark infrigement but one that is totally inapropriate to illustrate the validity of Trademark Transplants such as the one at issue here. The article involved in this case was made by Heliopan, had the Heliopan brand name and was made by the rightful and primary owner of the trademark, the firm that made it, Heliopan of Germany and no other. The seller of the filter did not pick a made in China filter and re-branded it. He sold a filter made by Heliopan with the same markings and identity as sold throughout the world.

Trademarks have as main purpose identifying the maker of the product and the product itself, thus preventing others from claiming to be the makers of the product and thereby preventing prejudice to the manufacturer and the public. The maker of the Heliopan filter would not have been hurt in the transaction involving the sale of this product, had the sale not been prevented by one with greater zeal than faireness or brains. Neither would the buyer have been hurt, nor for that matter the distributor of the product. Some have advocated that the injured seller or anyone else for that matter that is being hurt by trademark transplants should take the issue to court. Indeed? How about HP marketing taking the seller of the one filter to court? What do you think the judge would say a distributor claiming damages for the re-sale of one filter previously imported to from the USA being re-sold in the USA?

The legality of trademark transplanting as barriers to trade is at best questionable. Furthermore, the seller of this filter had bought it in the USA from B&H. Are you not surprised that B&H, the world's largest retailer of photographic equipment sells grey market products legally in the USA? Are you telling me they do it illegally?

One possibly good outcome from all this is to focus attention on the practice of trademark transplants as flags of convenience, tools of monopoly and tickets to the gravy train. If at issue is the question of entitlement to service within a given country, it would be easy to include that proviso in the product labelling in which case, purchasers of grey products would know exactly what they pay for. As I already stated, other manufacturers like Canon provide service in the USA to grey market products. They earn and deserve loyalty from their costumers. If they can do it, so can others although I can't recall the last time I had a filter serviced!

As a foreign person that buy from B&H and sometimes sells used items on Ebay, I will take care to NEVER buy any product represented by HP marketing.

We must spread this information.

I will put a link and a translation of this post on my local forums.

This is a bad usage of the law.

Julio; B&H sells "grey market" items that are legally allowed to be sold in the USA. Not all makers want new/almost items to come across the borders; thru USA customs; and sold; and violating trademark and laws.. If John had owned Helipan only for a day; then he sounds like a dealer skirting USA trade laws. If John has owned the Helipan for a year; and it appeared used; then he appears not to be a dealer; but a person selling an used item that is unneeded anymore.

I once bought a radio in Japan; that was not allowed to be sold or imported into the USA. XXXX in Japan removed the nameplate; and scratched up the front bezel; and had me sign that the item could not be sold for 18 months. I was evaluating the thing for XXXX; and they didnt want me ruining what ever their marketing system was; or profiting from the sale. The radio still looks like hell today; and would not fetch much money.

It seems that many feel angst against HP marketing; for protecting their right to a trademark they control for new items passing into USA borders.

It it is ok for a few almost-new filters/hoods to slip in; and thus disrupt the market; then I guess it is ok if people "just make a few illegal copies" of a photographers work; since it "just is a few copies"........We hear this every day from customers; in which they say "they own the photo"; since "they bought it"; and how the ownership laws are old and wrong.....

Maybe you should use the lens hood. I have never ever sold one in 4 decades. Why buy one; and they try to sell it on Ebay? If the Hood was all beat up and well used; the auction would not have been pulled. Ebay is going to side with the group that owns the right to import the new looking item into the USA; and not a single seller; who might get his goods confiscated by customs at the border.

It is your burden to demonstrate to Mr. Salomon that the item was made in the US. The fact that John cannot show the item was US made--because it isn't--only enforces Mr. Salomon's position. So don't import this item into the US without Mr. Salomon's permission.

Nathan, if you don't have a clue as to the situation, you may want to refrain from commenting.

Nobody said anything about whether it was or wasn't made in the United States. The situation is spelled out in the original post: "A product of foreign manufacture originally purchased from a trademark holder in the United States, which then has been used outside the US, is not a parallel import but an authorized domestic product. So the reimportation into the US of such a product should not violate US law."

And who says it's Michael's burden to demonstrate anything? Are you an attorney? It seems to me that if you want to restrain somebody else's trade, the burden is on you. It also seems to me it's a case of HP marketing taking advantage of eBay's cowardice to shut down a sale that they in fact have no evidence is illegal. In other words, money and greed rule.

I certainly won't deal with Mr. Salomon and HP marketing. and Heliopans are overpriced anyway.

This isn't limited to photo gear.

Used Kubota tractors from Japan are also not allowed as imports (where you can buy them a LOT cheaper than from your friendly local Kubota tractor salesman, BTW).

See this page

http://www.kubota.com/gray.cfm

for more info.

Jon

Hi Mark,

Its very kind of you to express concern as to whether it is appropriate for me to comment. I am much obliged.

However, I see nothing in your admonishment that bears support that my opinion on this matter isn't fact-based and valid.

Is there any reason to believe that Mr. Salomon's request, and E-Bay's action, were not under the guidance of counsel? Surely, you would agree, that E-Bay , for example, wouldn't wish to expose itself to a charge of arbitrary and capricious removal of an offer to sell?

It looks to me, in my opinion, that Mr. Salomon did the right thing, as did E-Bay. It would also seem that John has not presented evidence that he had requested permission from Mr. Salomon's firm to sell his iten into the US. nor has he done so since.

Wouldn't that be a step in the 'right' direction, as some might argue?

Kindly correct me if I am wrong. With Best wishes.

"It looks to me, in my opinion, that Mr. Salomon did the right thing, as did E-Bay. It would also seem that John has not presented evidence that he had requested permission from Mr. Salomon's firm to sell his iten into the US. nor has he done so since. Wouldn't that be a step in the 'right' direction, as some might argue?"

"It looks to me, in my opinion," your opinion - precisely. It has been demosntrated clearly and repeatedly in the course of this discussion that John did not and does not need the permission of HP Marketing to re-import this item into the US on a personal basis (in order to make a private sale or for any other reason). There is absolutley no reason he should have had to ask their permission in the first place and there is no reason he would have to do so now.

Hi Crispin,

It is axiomatic that E-Bay did the right thing.

You will note that we have no evidence for civil complaints filed against E-Bay in this regard, which certainly would have been within John's purview; indeed anyone else IF E-Bay was not enforcing the law.

The right thing is the legal thing. If you disagree with that,then, my goodness, act to change the law. With fond wishes.

I have followed this thread out of curiosity and to possibly dispell some myths - I left a site in my last post which specifically and clearly articultes the law on this matter. Rather than take positions which are not correct and post them, those who have questions should check out the site and find out what is right and wrong (or hire an attorney).

One cannot violate trademark law by owning an item made by one with authority to place the trademark on the item. They placed the trademark on it. Granted it may be a "gray" market good, but if an item is called "Heliopan" by the trademark owner, it violates nothing regardless of where it was made and sold. It is a "Heliopan". Now, if one trys to pass of a gray market good as a non-gray market good that is a violation. To protect their intellectual property interests, companies have started to bring copyright into the equation - my reading of the last Supreme Court opinion on this matter, and I stress my opinion, this trick was shot down by the court.

It is illegal to restrict the sale of goods, unless they are controlled for other reasons (drugs, weapons ...). If Bob Salomon wants to send me an email, I will happily discuss the legality and illegality of gray market goods with him and show him legal authority, based on the facts in John's first post, of how is conduct boarders on the improper.

Read portions of the site I posted earlier, in my mind it clearly outlines the law, cites cases, and statutes. I don't know the owner of the site, but he appears to know what he is talking about and be an outstanding lawyer.

MJA

Nathan: You don't seem to recognize that there is free trade between the U.S. and Canada. And that, as I read the above discussion, the re-importation of goods of legal original importation into the US, is permitted under the trademark law. AND you never answered the question about whether you were/are an attorney. Nice attempt at sidestep, but you really should answer the question.

What is patently clear is that Mr. Salomon and HP Marketing are overstepping business ethics and quite possibly the law. As these are USED goods, they are in NO WAY subject to loss in any manner.

Ebay can shut down one's auction for many reasons; they are a private bulletin board. Ebay long ago was wide open; now they ban email addresses in ones auctions; alot of cool html is now blocked; fees have gone up. They always will side with the trademark owner; instead of one dinky seller. Ebay is a board that has rules; just like Photo.net has rules.

My fellow victims of rampant capitalism..... As a poor and bewildered foreigner who just had an auction for a single, well used Heliopan filter (49mm Light Green - anyone?) bumped off Ebay by that paragon of protectionism, Mr Salomon, I'd like to enquire, if it's not too much trouble y'all why on earth you allow this nonsense to continue. Nathan C. - I'm not about to initiate legal procedings over a single little item - that would be ridiculous - but I am still giggling fondly over the assertion that 'it's axiomatic that Ebay did the right thing' and that 'the right thing is the legal thing.' The manufacturer has no rights or jurisdiction after 'first use' - why on earth would the manufacturer's agent? I told Salomon that I sympathise with the agent's position over cheap imports of new product but to exert that right over used goods would conflict with bookloads of common law principles, surely. Not only that, I reside elsewhere and my Ebay auctions exist in international cyberspace, just as does my Paypal account (which I fondly imagine to be circling intangibly in the ether over Florida). Ebay can of course set up any list of rules it wishes but may not apply rules in a discriminatory fashion. They see the world in a Calicentric way and assume that what is fair there is fair anywhere and in all circumstances. Of course, all concerned will act in any way that they wish and offer flimsy legal opinions to justify it until successfully challenged in court. They rely on the fact that their sellers are neither wealthy nor deranged enough to take that step or are just too far away. But, Mr Cohen, that does not make it right - morally, ethically or possibly legally.

Here's a new (!) Heliopan filter, seller ships worldwide. Will such a filter be stopped by US customs?

(link)

I've read this thread with much interest, because I'm also a victim of Bob Salomon's eBay intervention, plus I happen to have practiced trademark law for forty years, and have written papers on parallel importation, including one delivered in Japan. In my case, I tried to sell on eBay a Heliopan filter which had been purchased from Ken Hansen in New York, an HP account. Salomon intervened with eBay merely because the goods were coming from Canada, and offered to the U.S. Obviously he has no valid complaint about goods originally lawfully purchased in the U.S., but relies on the fact that his victims are people whose economic interest does not justify legal intervention. eBay, as has been observed, could care less. Heliopan was, of course, orginally a german brand, and to a lot of people like me, it is still associated with a German source, not HP. A few years ago, HP bought the trademark from the german company, and now claim that they have the exclusive right to use it in the U.S. My guess is that they persuaded the german company that they, HP, were losing business due to parallel importation, i.e. HP was setting prices so high that it was attractive to people to import genuine goods from Europe. If the situation had been that HP had built up a considerable goodwill on their own by reason of extensive advertising, etc., one could see some justification in their position, but that hasn't been my experience. I must say that I really don't understand how Mr. Cohen can be a defender of Mr. Salomon, whose conduct is bizarre, to put it mildly. What we're talking about is corporate bullying of people whose conduct is completely lawful. At the PhotoPlus show this week, I intend to find out who's running HP, and will write to him to let him how that I and others like most of you, feel that Salomon is creating far more badwill for HP than his tactics could possibly benefit HP.

You guys are just a bunch a whining sobs. How much investment in money did you put into setting up HP Marketing? How much money did you invest in purchasing the patent rights? How much money did you invest in your advertising, marketing and product support programs? How many people do you employee through your investments? Do you pay medical insurance and provide other benefits for these employees? Do you pay patent royalties to the inventor of the product who spent many years investing time and money into this product? Will you provide product service and warrenty if I purchase the product from you on Ebay? If so, how much money did you invest into your warrently program? If you did have a warrenty program (or invested money in any other of these programs), you would be wanting a lot more money for your product.

The answers to these questions is No! Because all of you are just a bunch of whining photo/net geeks. You people are probably the same people who think NAPSTER was ethical and not illegal. I dont know Bob S. and I am not into photography. I only found this forum because I was looking up information on this topic related to other products. But the fact of the matter is that HP Marketing has invested a lot of money and time to create a viable business that will generate employment and taxes. What you want to do is cheat them out of what it rightfully thiers. The ones with bad ethics are all of you.

As some of you, I am sure, are professional photographers, you invest a lot of time and money into your profession. Your product is that perfect shot that will earn you money to make a living and cover your investment in schooling, training, equipment, plus your salary and livelihood. Do you think it would be fair for me to take your photo, us it for my own purposes, make lots of money using it, and not pay you anything for it? The issue of HP services is the same.

None you you have the balls to risk your money to make money. You just want to take, take, take, but none of you are willing to pay. You guys just go to work everday from 9-5, get your pay check, and play with your gay littel cameras on the weekend. I am sure if you were in Bob S.'s shoes , you would have a differnt view on life.

I am not a lawyer so I may just be blowing wind here. I always thought that the copyrighted trade marks was a way to protect a manufacturer from having any product reproduced illegally. Not one produced by them in a foreign country. I also believed you could sell a used item at anytime. It's what I believe anyway. Last thought, does't Heliopan have to prove that the hood was not manufactured them? To me it is what part of the Constitution says, "You are innocent till proven guilty." I would say it is up to Heliopan to prove the hood was not manfactured by them anywhere, not the other way around.