Ask a lawyer on the topic of Copyright law

Use of foreign image material

March 29, 2011 | 35,00 EUR | answered by Steffan Schwerin

Hello!

In January 2001, I listed two identical auctions on EBAY. To do this, I used a picture of the item I was selling from the internet search engine "GOOGLE." The first auction ended on 30.01, the second on 06.02.
Shortly after the end of the two auctions, I was informed by EBAY that I had used a foreign photo and the first auction was deleted by EBAY.
On 11.02, I received a letter from a law firm stating that the owner of the rights to use this image material is claiming damages in the amount of 300 euros, plus legal fees of 100 euros. At the same time, I was instructed to give a declaration to cease and desist. It was also pointed out that in the event of a repeat violation, a contractual penalty of 2,500 euros would be imposed.
I acknowledged my mistake and sent the amount of 400 euros and the cease and desist declaration on 18.02. I also had to mention the origin of the image material (online search engine Google) and the extent to which it was used (well-known Ebay auction).
On 24.03, I received the next letter, accusing me of the second Ebay auction (ending on 06.02), in which I allegedly violated my cease and desist declaration from 18.02 and was now required to pay the contractual penalty of 2,500 euros.
A letter from me stating that this auction took place BEFORE my cease and desist declaration and that I have not committed any further offenses since then was rejected in another letter. This is because this auction (despite ending on 06.02) seems to still be visible online (through the known Ebay auction number). Additionally, I was accused of withholding information about the second identical auction. An attempt to make the second, long-ended auction invisible on EBAY, or to delete it, has so far been unsuccessful, as it is already finished and completed.

Now my question: Did I actually violate the cease and desist declaration and do I have to pay the contractual penalty - or what options do I have left?

Thank you for a clarifying answer.

Best regards

Steffan Schwerin

Dear Questioner,

I will answer the questions you have asked taking into consideration the facts presented and your input as follows:

You have not violated the cease and desist declaration (CED).

In the CED, you agreed to refrain from using such images in the future.

However, the auction took place in the past. Therefore, the CED has not been breached.

As a result, the contractual penalty has not been forfeited.

You are not required to pay the amount of 2500 euros.

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Best regards,

Steffan Schwerin
Lawyer

Law Office of Steffan Schwerin
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