Legal Question in Business Law in California
is it infringement if an eBay seller is using our name to sell his products?
My family has owned a well known
mom-n-pop martial arts stores in CA
for nearly 30 years. The business name
is named after my late father. Among
our products is a liniment where we buy
the pre-made ingredients then blend/
bottle ourselves.
The other day I saw an eBay auction for
a similar liniment, but using my dad's
name & reputation to sell the product,
(e.g. ''Keith Duggan's Famous
Liniment''). The description says the
''formula'' comes from my dad.
Obviously it's a complete lie but we
cannot confirm. I emailed the seller w/o
saying who I was; he said the formula
was written on a piece of paper from my
dad, but didn't say how he got it. He's
also selling it on their website.
My mom has taken ownership since my
dad passed, & has not filed a fictitious
bus. stmt. yet. Do we have any
recourse? Do/Can we register his name
as a trademark? Can/Should we take
legal action against them?
The liniment is a common product but I
feel it's legally wrong for him to make
money using my dad's name &
reputation to sell his product w/o our
knowledge or permission. Please advise.
5 Answers from Attorneys
Re: is it infringement if an eBay seller is using our name to sell his products?
They may NOT use his likeness that belongs to him, his estate, or to who he willed it to.
Re: is it infringement if an eBay seller is using our name to sell his products?
You definitely may have legal recourse here, even if (as it appears) your father never trademarked his name or product. A business with a going concern has a common law right, at the least, to protect the name under which its products are being sold.
Feel free to contact me if you would like to discuss this further.
Re: is it infringement if an eBay seller is using our name to sell his products?
You have several courses of action, some of which may pay off in court, some of which will not. The problem is that your dad may have in fact wrote down the recipe for someone, and then you may be stuck without recourse.
Regardless, there are some california rights of publicity and privacy that this person may be violating. You should really talk with an attorney regarding these claims.
You are welcome to call my office at your convenience.
Regards and good luck,
JDH
619 298 1969
Re: is it infringement if an eBay seller is using our name to sell his products?
1. Yes, you do have recourse. This is called "misappropriation of name and likeness" -2. Yes, you can trademark your fathers name as additional protection from future (or past) misappropriation.
3. It may or may not be woth pursuing a lawsuit. That is a business decision you will have to make. You should start with sending a cease and desist letter.
Re: is it infringement if an eBay seller is using our name to sell his products?
It is trademark infringement, which you should vigorously resist. Feel free to contact me to discuss 'cease & desist' notices that should be sent, and lawsuit causes of action that should be considered if you don't want them profiting at your expense.
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