Online auction site BidBay.com said Thursday that it has filed a motion to dismiss the trademark infringement lawsuit recently filed against it by Internet auction giant eBay (Nasdaq: EBAY)
In papers filed in U.S. District Court in San Jose, California on Tuesday, Tujunga, California-based BidBay contended that the case should be dismissed for filing in the wrong courthouse, and that if the case proceeds, it should be handled in the more appropriate venue of the federal district court in Los Angeles.
In the complaint it filed against BidBay on July 30th, eBay alleged that BidBay is infringing on theeBay trademark with its use of “Bay” in its name and with the overall look-and-feel of the BidBay Web site, including its similar multi-hued color scheme.
BidBay attorney Barry Sabahat told the E-Commerce Times that although the motion to dismiss “is not likely to dispose of the case entirely,” he believes that BidBay’s chances of succeeding with its argument that the case was filed in the wrong court are “great.”
Said Sabahat: “We are simply trying to compete and are doing so in no manner that is likely to confuse users of eBay and BidBay.”
Look Here
Forrester analyst James Crawford said that in his opinion, BidBay will not likely be forced to change its name, but he does not think BidBay is likely to get out from under most of the infringement charges pertaining to its Web site’s look-and-feel.
“eBay may end up having to sue in another venue,” Crawford told the E-Commerce Times. “But BidBay will not skate on a technicality.”
eBay declined to comment on BidBay’s motion.
Splitting Hairs?
Sabahat said that eBay’s accusations pertain more to aspects of functionality rather than to look-and-feel — which, he argues, makes all the difference.
“You cannot trademark functionality,” said Sabahat.
BidBay founder and chief executive officer George Tannous told the E-Commerce Times that eBay has cited his company’s use of category names found on eBay.
“How can we be expected to come up with another name for ‘automotive’?” Tannous asked.
No Contest
Crawford cited eBay’s dominant position in the online auction space and suggested that BidBay is not a worthy competitor, in terms of market share or growth potential.
“eBay has earned [its dominant position] by legitimately offering superior customer service to sellers, thereby attracting an overwhelming majority of sellers,” said Crawford. “Buyers will go where the products are.”
BidBay says that it has nearly 5 million users and that more than $153 million in bids have been placed in the past year. By comparison, eBay has more than 29.7 million users who generated over $5 billion in transactions last year.
Two’s Company
Sabahat insisted that there is more than enough room in the online auction space for two winners, and that there is enough business for multiple players.
Said Tannous: “I began BidBay as an alternative to an eBay site that was more concerned with monopolizing the market than providing a customer-friendly product. BidBay’s success and this subsequent lawsuit prove that I was right.”
Tannous also said that he is optimistic about the future and mentioned the forthcoming introduction of BidBay Search, a search function for the entire World Wide Web, similar to GoTo.com.
Far From Over
Forrester’s Crawford expects the legal battle to drag on indefinitely, which in itself may be the silver lining for BidBay.
“The best thing BidBay has going for it is all the free publicity this case will bring them,” said Crawford. “It’s the best thing that could ever happen to it.”
In an almost Hollywood twist, Tannous originally purchased the BidBay name on eBay for $1,000 from seller Alvin Black. 
Loading ...
I saw the ad on T.V. and there was no question in my mind this was ebay, I was AM azed to see it was not. I think it is a total infringement on ebay, no question about it.
Couldn’t have said it better myself.
I, too, believe strongly in brand protection. The AM ount of resources invested in creating and implementing a successful brand such as eBay may be transparent only to the team creating that brand. The rewards – revenues, brand recognition, being a household name – are a result of this investment.
eBay’s success is NOT tantamount to a monopoly, as BidBay claims. Just go to any major search engine, enter “online auctions”, and see how many sites you get. I got over 23 million.
BidBay made their first mistake in hijacking eBay’s brand. As for that “free publicity” they’re getting from the lawsuit being “the best thing that’s happened to the site” – it’s anything but positive. Since when is negative publicity the best thing for a company???
BidBay should be shut down for such blatantly unethical marketing practices.
eBay is running scared Microsoft tactics. There are plenty of suckers out there who will be more than happy to use online auctions on both eBay and their competitors.
All I know is that Fred and Lamont could have turned the Sanford and Son business into pure gold by selling the junk they collected on Scambay and its cousins.
Of course Ebay will win, irrespective of the “trade dress” issue, i.e., similar “look and feel” of the BidBay site to Ebay. Any intellectual property attorney can explain why, and it’s based on strong and existing trademark law. The only kind of attorney who could possibly see it any other way would be one who is not versed in trademark law and is seeking publicity and continued fees for legal services, regardless of the likely outcome for their client.
I registered a domain at CheapestRegistry.com and my site will discuss all the things that suck about ebay.
Trademark infringement? Bullshit. ebay is just using their money to bully the competition.
ARE YOU KIDDING ME!?!?!? These bidbay fools should get their butts handed to them. What kind of fools would infringe in such a way? They not only infringe on the name, but also on the logo design, as well as look and feel. I’m sick and tired of followers that lack creativity who try to cloud prominent companies’ brands with their own crap. All this does is hurt the consumer with brand confusion. If I were new to the whole online auction thing and I saw bidbay.com, I could easily mistake it for the brand that I’ve seen on TV, in print, and heard about through other media angles, also known as ebay. The whole damn thing is a mimic of ebay and it’s atrocious. I’m a big believer in brand protection, and these guys are WAY OUT OF LINE!
Maybe ebay can drain their cash reserves with heavy legal bills…in fact, I recommend ebay put more legal resources on the deal so bidbay has nothing left and they get forced out of business. It’s disgusting.
If you want to build your own company in the auction space, be my guest, but don’t for a second think it’s all right to steal another company’s brand that they spent years building up. It’s poor business, and it’s illegal.