Is an &#39;MP3/MP4 Player&#39; that cannot play .mp4 files, &quot;misdescribed&quot; under the Sales of Goods Act 1979? We recently purchased an mp3 player from argos (908/2218), which is labelled as "Philips SA4VBE08KN/12 GoGear VIBE 8GB MP3/MP4 Player". This item is excluded from their 30-day return policy. We'd like to return it, because it doesn't support the .mp4 file format. Given that it's described as an MP4 player, can we argue that it's been misdescribed? If the shop staff don't agree, what's our recourse? Is it worth pursuing in small claims court?
It says it's an "MP4 player" but it doesn't play MP4s. This seems rather straightforward to me---assuming it really doesn't play any kind of MP4 at all. I would agree you could go back to the shop armed with the appropriate wording from the SoG Act and state your case to the manager. If the front desk staff are unhelpful don't argue with them but rather ask to speak to the duty manager. No doubt the staff will talk about their thirty day return policy, but you are not interested in this; since you are relying on your statutory rights. If that is not successful, write directly to the head office. Keep your letter short, neutral and with no emotion whatsoever. Describe the facts, include proof of purchase, and request your money back. Argos is a large shop, they will pay you off ("as a gesture of good will") rather than fight a pointless claim in the SCC. However taking an action to the SCC is not necessarily free so you might yourselves not feel it worth it.
In the Netherlands, this qualifies as a deceptive trade practice (misleidende handelspraktijk) and is therefore directly illegal. It's likely also an unfair trade practice, (oneerlijke handelspraktijk) as the claim appears intended for end consumers. This means that the seller cannot count on the consumer knowing anythong about stuffase. It is a dutch implementation of EU directive 2005/29/EG, so similar laws apply in other EU countries. But the illegal per se part might vary.
You are asking the wrong question. It should be: When you have downloaded the content and metadata, what are you allowed to do with it and what is forbidden? Somebody owns the copyright to the text and images in the thumbnail. This could be the operator of the third party website, or that site has licensed the content from yet another party. You haven't licensed it from anybody. So you can watch the content in accordance with the TOS, and your computer can evaluate the metadata to do it, but you cannot display it on your own site. Details will differ between jurisdictions, of course. You might also be held responsible for illegal content in the thumb you generate. Follow-up: There seems to be some question of what 'thumbnail' and 'card' mean in this context. This answer assumes a somewhat scaled-down representation of the content of the entire page, not just a collection of actual metadata like content length and expiry.
The first thing that has to be done (in court, or via lawyer-to-lawyer communication) is that The Company has to prove that they own the copyright. If they accomplish that, you can defend yourself by providing proof of a license to download and redistribute. From what I can tell, you cannot directly prove that, since the rights-holder did not give you the license. The issue is that a third party cannot impose a license on a work simply by putting it out there with a file that claims to be a license from the artist. So this brings in the Free Music Archive: they presumably have some evidence that the rights holder did indeed grant the alleged license, and may be able to provide proof. Your argument may be credible, in the sense that you had a good-faith belief that the item was so licensed, and the website would provide a basis for concluding that that belief is reasonable. If the work was licensed, then the some rights holder would know that, but not necessarily the current one. Assume the artist made a recording, transferred the rights to Company A, who later sold the rights to Company B who is now coming after you. Artist may have licensed it when it was his, and forgot to tell A. A may have licensed it when they sold the license to B. Artist may have improperly licensed it after he sold the work to A (under the "I wrote it, I have the right to do whatever I want" non-legal theory). A might have improperly licensed the work after selling the right to B (maybe by mistakenly including it in a package deal, i.e. via bookkeeping error, rather than ignorance of the law). Or, they may simply have forgotten. If this is a DMCA takedown notice, the notice-giver could just be abusing the system. But we don't know how you were contacted, so I'll leave DMCA out of this for now.
It may be illegal under product labelling regulations that apply to that kind of product (or under a general deceptive trade practices act), but even then, only if you are interpreting the numbers, whose meaning is not clearly spelled out, correctly. But, to be actionable as fraud it must, among other things, be a misrepresentation as to a material fact (which if the goods, such as cordless drills, are not perishable it probably isn't) and the recipient of the misrepresentation must have justifiably relied upon the misrepresentation (which is necessary not true in the case of a representation that it was made in December 2018 on a product sold no later than July of 2018). It is also not entirely clear that this is a "made on" date. It could refer, for example, to the the twelfth batch or lot or shipment of products made in 2018, and not to the month of December, or it could refer to a product made in 2018 at factory number 12. @NateEldredge in the comments also makes the plausible observation that it could be a week number which is a common system in manufacturing which would put it in a more reasonable March 2018 time frame. You probably shouldn't do anything, because you haven't been harmed by this cryptic string of numbers embossed on the product, and even if you were, your damages would not be worth the time or money involved to pursue it as anything other than part of a class action lawsuit.
Both. The user made an infringing copy with the upload, the developer did with the download. Further the ToS between the app owner and the user will not protect them from being sued by the owner of the copyright. They don't have any ToS with them.
For your example of items with Marvel characters on them for sale by people and companies not licensed by Marvel, Redbubble clearly states that We ask, rather we beg, that you remember this when you are posting work on Redbubble. If you make sure that all the works you upload consist of your very own, original ideas and are not infringing on the intellectual property or publicity rights of another... (from https://help.redbubble.com/hc/en-us/articles/201579195 ) and further, Redbubble has full contact information for the submission of Notice and Takedown Reports by each real trademark owner. There are many individuals who upload products which use unlicensed artwork in violation of trademarks, and Redbubble acknowledges this and gives recourse to the license holder to inform them so they can remove the items. It's not a perfect system, but Redbubble it seems makes every effort to help police their market. ( Teepublic has a very clear policy statement, too: https://www.teepublic.com/copyright-policy ) Many companies - such as Marvel - employ agents to regularly check such websites and issue takedown demands to the sites; the sites in turn remove the products, and in some instances, ban the individual from using the site again. In the case of Amazon, there can be two types of products sold that use trademarked artwork and characters: items sold by legitimate businesses that have license agreements with the trademark owners and who have the products sold by Amazon itself; and items sold on the Amazon marketplace by individuals who open Amazon Marketplace accounts themselves and don't have licenses. Amazon will be sure to check the products they sell; they will have a takedown notices system for their marketplace vendors. eBay is somewhat the same way; there is a mix of individuals and businesses on eBay, but eBay doesn't operate an umbrella sell/ship by eBay, like Amazon. It's kind of a whack-a-mole situation on the Interwebs. How much time/money does a company spend to chase down trademark infringement? Is it worth going to court for persistent violators? (These are, for the most part, civil cases, not criminal). Violators can always open a new account on sites such as Redbubble and eBay under a different name. And it starts all over again.
Since you bought these online the Consumer Contract Regulations are going to be in effect here (if the price of the goods was over £42 anyway), (legislation) Where your cutting the tags off and wearing them outside for an hour comes into play is that would probably be considered &quot;excessive handling&quot; and they might be able to make a deduction from the amount of the refund. Your business can make a deduction from the value of the goods if you consider the customer has handled the goods excessively. You can’t deduct monies from the refund simply because the goods have been removed from the packaging or because the goods have been tried on or checked. In essence, distance selling purchasers are entitled to handle goods in the same way that they would in a normal retail store. That therefore includes touching the item or trying it on. Since no retail store is going to let you cut the tags from a pair of shoes and walk outside for an hour in them I'd say that test is probably met here. How much can they deduct? As the CCR puts it (emphasis mine): (9) If (in the case of a sales contract) the value of the goods is diminished by any amount as a result of handling of the goods by the consumer beyond what is necessary to establish the nature, characteristics and functioning of the goods, the trader may recover that amount from the consumer, up to the contract price. Which is likely where the &quot;saleable condition&quot; aspect is coming from - if they aren't in a condition where the retailer can sell them on they've essentially lost their full value. If the retailer makes returned goods available for sale on the site at reduced prices (like the &quot;Amazon warehouse&quot; deals) then a deduction of the difference in sale price between that and full retail is more likely.