Nanda's Alarm Clock Not Only Runs Away From You, It Runs Away From eBay Too

from the wake-up-nanda dept

Wed, Oct 21st 2009 9:44am — Dennis Yang

It looks like more tangible product companies are trying to pretend they can restrict what you do with legally purchased products post-sale (perhaps they're jealous of content companies). Case in point: my brother received the Nanda Clocky as a gift awhile back -- it's a pretty novel alarm clock, when it goes off, its wheels turn on, and it jumps off your dresser, forcing you to climb out of bed to turn it off. Since he already had an alarm clock that worked for him, he decided to sell it on eBay. A few days before his auction was supposed to close, he got a notice that his listing was removed for a "Trademark Violation - Unauthorized Item." Yes, for a legitimately owned product. The email stated:

"Nanda Home Inc. is the owner of the intellectual property rights pertaining to these listings. By listing the 'Clocky' product you are in serious violation of the company's rights. Additionally, Nanda Home does not permit the re-sale of any of their brand product on eBay. There are no authorized Nanda Home re-sellers on eBay. If you continue to list our items, further legal action may be taken."

Clearly, Nanda has a gross misunderstanding of the right of people to re-sell their own property. While it's true that it is against the law to sell counterfeit copies of a product, re-selling your own goods and representing them as "real" is completely within the bounds of the law, and eBay policy. To make matters worse, the condescending tone of the email also suggests that:

"You may need to take a tutorial. The next time you sell, you may be asked to take the tutorial, if it's required. Once you've completed the tutorial successfully, please review your account status for any other possible concerns. If there are no other issues, you should be able to sell again."

Or, perhaps Nanda and eBay should take a tutorial on the right of first sale. In the aforementioned tutorial, eBay clearly understands the right to re-sell (in fact, a huge part of its business relies upon this fact). Yet, to make matters worse under eBay policy it's still a laborious process to get the item relisted -- even with the bogus takedown notice. As a seller of an incorrectly taken down Clocky listing, you have to contact Nanda and have them specifically authorize your product to be re-listed. Yes, even though it's Nanda who issued the incorrect takedown in the first place. So much for frictionless commerce.

The even bigger problem is in the process in which such listing takedowns are handled. Under the guise of rooting out counterfeit products, Nanda is able to unfairly reduce the number of its own secondhand goods in the marketplace. Other manufacturers have tried to do this in the past for everything from shampoo to radar detectors. And, much like the DMCA process, this "guilty until proven innocent" approach ultimately hurts the consumer, who now has unfairly reduced access to many products that were to be sold completely legally.

That said, my brother followed the eBay process to get his Clocky relisted. They sent him an email apologizing for their error and authorizing him to relist, which he did. Guess what? In an effort to punctuate how ridiculous this policy is, one day later, he got an email, "Trademark Violation - Unauthorized Item."

Anyone want to buy a Clocky?

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Filed Under: alarm clock, auctions, clocky, first sale, trademark
Companies: ebay, nanda

59 Comments

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Bubba, 21 Oct 2009 @ 9:51am

re
Problem solved with one word - Craigslist.
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Designerfx (profile), 21 Oct 2009 @ 9:55am

Re: re
yup. paying for ebay is not only a waste, but craigslist can probably let you skip the having to mail it part too.
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Anonymous Coward, 21 Oct 2009 @ 9:56am

Re: re
indeed, who the hell uses ebay anymore?
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davebarnes (profile), 21 Oct 2009 @ 9:58am

damn, 6 minutes too late
my thoughts exactly
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ChurchHatesTucker (profile), 21 Oct 2009 @ 10:14am

This is the problem
Trademarks have been the stalking horse of IP for the last twenty-odd years. As always it's not whether you're right or wrong, it's whether you can afford the court case that will result.
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R. Miles (profile), 21 Oct 2009 @ 10:27am

Your brother does need a tutorial, Mike.
Not for the laws of reselling, but a tutorial on selling practices which don't include eBay.

I'm glad issues like this plague eBay, as more and more people are finally realizing how crap this "service" is to any consumer. Eventually, this site will fail. It's just a matter of time.

Tell your brother to use Craigslist. It's 100% free and very successful. I've watched this service explode with users who have finally had enough of eBays "terms of services".

But as a favor, don't push your brother's items on us. No, I don't want a clocky. I'm one who positioned the clock far away enough as to warrant a removal from my bed to walk over and shut it off. Cost: $0.

Heh.
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maclizard (profile), 21 Oct 2009 @ 10:32am

Opening Bid
$0.99
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:Lobo Santo (profile), 21 Oct 2009 @ 10:37am

Re: Opening Bid
$2.00

also, from whence is it shipping?
(Or better yet; how about a link to the NEWLY minted craigslist entry for it?)
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Steve R. (profile), 21 Oct 2009 @ 10:48am

The Legal Shotgun
This post reiterates that those who claim to somehow "own" content (whether the claim is legitimate or not) will simply whip out their shotgun of legalize verbiage to intimidate the public into compliance.
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Derek, 21 Oct 2009 @ 10:57am

Ebay? I think I remember hearing of that back around 2000. As I recall, Ebay showed a lot of potential for a while but then choked itself into a persistent vegetative state.
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Dark Helmet (profile), 21 Oct 2009 @ 11:00am

Re:
I thought they were just an eCommunication company. Don't they have something to do with Skype?
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bubba, 21 Oct 2009 @ 11:04am

so what can you sell on ebay?
if ebay follows their own rules, it would appear that nothing could be sold on it that was not actually created by the person selling it. but there already is a site for this, its etsy.com.
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usp, 21 Oct 2009 @ 11:11am

This is common practice by ebay, and the businesses that have these IP accounts with ebay. All the businesses have to do is find a listing that they do not like, and then send an email to ebay, and voila, the listing is gone.
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mike42 (profile), 21 Oct 2009 @ 11:13am

FTC
Wouldn't this be an APPROPRIATE thing for the FTC to regulate and fine, rather than bloggers?
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Anonymous1, 21 Oct 2009 @ 11:18am

I never have used ebay to sell a product, now I never will. So much for the "freedom" the internet gives. About 10 years ago I (and probably millions of other people) saw the writing on the wall. Over time even though the Internet came from tax paper funding for a majority (see: ARPA), I saw the coming waves of the corporations. These corporations, I thought then, would one day completely take over the once "free exchange" of ideas, open-source vaules, of the internet, and turn it into one big online buisness.
This is exhibit 1 billion of this happening (a rough estimate to be sure). The Internet, like all good ideas, has been largely co-opted by corporate profit taking, and copyright abuse. FUN times.....
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Anonymous Coward, 21 Oct 2009 @ 11:21am

Re: FTC
from your comment it sounds like you are saying the FTC should regulate and fine instead of bloggers regulating and fining...
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P, 21 Oct 2009 @ 11:29am

Plenty of clockys (clockies?) available
Just searched eBay:
"23 results found for clocky"
Wonder how many got takedown notices?
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Aaron, 21 Oct 2009 @ 11:39am

Is eBay really the villain here?
I find it amusing that the vast majority of comments here have been bashing eBay. Why aren't people more upset that Nanda is sending out improper trademark infringement letters? Trying to limit who can resell their legitimately purchased products seems pretty dastardly to me. I would love to see a communication from them to see what their company line is.
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chris (profile), 21 Oct 2009 @ 11:53am

Re:
I never have used ebay to sell a product, now I never will. So much for the "freedom" the internet gives. About 10 years ago I (and probably millions of other people) saw the writing on the wall. Over time even though the Internet came from tax paper funding for a majority (see: ARPA), I saw the coming waves of the corporations. These corporations, I thought then, would one day completely take over the once "free exchange" of ideas, open-source vaules, of the internet, and turn it into one big online buisness.
This is exhibit 1 billion of this happening (a rough estimate to be sure). The Internet, like all good ideas, has been largely co-opted by corporate profit taking, and copyright abuse. FUN times.....

from my cabin in the woods, i stab at thee!
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AC, 21 Oct 2009 @ 11:56am

wait a sec...
one day later, he got an email, "Trademark Violation - Unauthorized Item."

After sending a challenge to ebay on the takedown notice and getting the item re-listed, doesn't some burden of proof then fall on Clocky people before they can reissue a take down for the same item?
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Anonymous1, 21 Oct 2009 @ 12:00pm

@Chris: "from my cabin in the woods, i stab at thee!"

They don't sell crazy here. You want the store down the block...

If that was some sort of reference that's supposed to be descernable, it wasn't.
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Simon Cast, 21 Oct 2009 @ 12:02pm

Report to watchdog
I came across a similar issue with terms of service of an online merchant. Specifically, you were allowed to re-sell something you brought from them. I reported them to the UK Consumer watchdog and the result was the company changed it terms of service.

Would reporting both Nanda and eBay to the US equivalent (Better Business Bureau or the FTC?) help? It is a violation of consumer rights.
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BdgBill (profile), 21 Oct 2009 @ 12:03pm

Re: Re: re
"but craigslist can probably let you skip the having to mail it part too"

I would rather mail something sold on eBay than risk a face to face meeting with one of the twitchy freaks that use Craigslist.
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Xanius, 21 Oct 2009 @ 12:12pm

Similar problem
My friend had a similar problem with selling some speakers he got for free on newegg when he bought some other speakers. He wanted matching housings so he bought new ones that matched and ebay pulled his listing with the same message.

The only thing I can think of is either the company whined about the pictures used or they are just abusing the DMCA.

I suggested he take pictures himself with his user ID in the picture so the company can't claim copyright on anything.
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hegemon13, 21 Oct 2009 @ 12:17pm

Re: Re: Re: re
"I would rather mail something sold on eBay than risk a face to face meeting with one of the twitchy freaks that use Craigslist."

Wow, paranoid much? Twitchy freaks? Really?

How about this: meet in a public place and don't share personal info. Problem solved.
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R. Miles (profile), 21 Oct 2009 @ 12:18pm

Re: Is eBay really the villain here?
Why aren't people more upset that Nanda is sending out improper trademark infringement letters?
Simply because eBay should be the first defense for its customers and block such bullshit from ever hitting their inbox.

Nanda may be tactless in its quest, but it's even *more* tactless for eBay to circumvent its own ToS in order to comply with Nanda's idiocy.

Thus, it's why many are hell bent on blaming eBay, rather than the all-too-common idiocy of Nanda.
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Anonymous Coward, 21 Oct 2009 @ 12:22pm

eBay has been worthless for years. Who cares?
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Anonymous Coward, 21 Oct 2009 @ 12:33pm

Re: Re: Re: re
Man, I must be a twitchy freak... I mean, I bought my PS3 from a guy on Craigslist. He was in IT too, and his wife was pregnant, so we had a nice conversation about life after making the sale.

If you're so scared of experiencing life... why do you even leave your house?
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DS, 21 Oct 2009 @ 12:42pm

Re: re
Problem solved, don't ever buy one.

Ever.
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Sean, 21 Oct 2009 @ 12:46pm

Listing fees
Hope eBay refunded listing fees.
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Alex Hagen, 21 Oct 2009 @ 12:51pm

Re:
Anonymous1 said
>@Chris: "from my cabin in the woods, i stab at thee!"
>If that was some sort of reference that's supposed to be descernable, it wasn't."

That's just because you are an uneducated idiot. Everyone else got it.
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Anonymous Coward, 21 Oct 2009 @ 1:01pm

I see the comments here all the time about how the internet has gone corporate, and that is no lie. I first connected to the internet in 1993 and have been on a roll ever since. I have watched the change roll over the whole landscape. So the point of this comment is, instead of everyone just complaining about the problems, why are we not doing anything about it? Just in the United States a good 30% have connections to the internet, out of those maybe 25% have the knowledge to know what is actually going on and if even 1% of those users would do something, voice their opinion, call their congressman, 1,000,000 voices could be heard. But that will not happen, people can not cooperate long enough to pull something like that off. This actually does not need to be done just for the Internet, there are so many areas of our society where we are getting totally stomped on by large corporations and the government. What is it going to take to get the people to move as a single entity to get these problems taken care of?
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matt, 21 Oct 2009 @ 1:02pm

eBay
agreed. eBay needs to defend its customers (while they still have a few!).

I advocate strongly for Craigslist. Unfortunately I would NEVER buy a "print pass" event ticket from some "twitchy freak" on CL.

Which reminds me. I sold the print passes on Ebay recently, right? The guy pays immediately with Paypal. Then I try to x-fer the funds, and I get a note

***eBay now puts a 21 day hold on ALL incoming funds*** They hold it until the BUYER leaves positive feedback. I called them up and said give me my money, NOW. And they did.
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Anonymous Coward, 21 Oct 2009 @ 1:27pm

Re: wait a sec...
Silly person, the laws don't apply to the lobbyists who wrote them.
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Anonymous1, 21 Oct 2009 @ 2:05pm

@Alex Hagen: Care to tell me who the hell you are dimwit?
STFU. I have more education in my feces than you have in your whole sorry-excuse for a brain. Now you were saying?
Also STFU for answering for someone elese, sarcasm, idiocy, or else all being put aside.
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dkh, 21 Oct 2009 @ 2:15pm

Funny. I just searched eBay and found 25 listings. Why are they not being threatened? WHY? Because most are eBays POWER SELLERS.
eBay does not even know their own rules.
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Doug B (profile), 21 Oct 2009 @ 2:19pm

Why not sell it on amazon?
If craigslist doesn't suit you, there's a whole host of sellers selling these pieces of garbage (new and used) on Amazon.
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DocMenach (profile), 21 Oct 2009 @ 2:30pm

Re: intersting math
Just in the United States a good 30% have connections to the internet, out of those maybe 25% have the knowledge to know what is actually going on and if even 1% of those users would do something, voice their opinion, call their congressman, 1,000,000 voices could be heard.

By that math the U.S. has 1.3 billion people. I had no idea that we more than quadrupled our population overnight.
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DocMenach (profile), 21 Oct 2009 @ 2:36pm

Re: wait a sec...
After sending a challenge to ebay on the takedown notice and getting the item re-listed, doesn't some burden of proof then fall on Clocky people before they can reissue a take down for the same item?

That is exactly where the problem lies. While the burden of proof should be placed on Nanda to prove that there is some actual infringement, eBay's policy is that the burden of proof is on the person who posted the item to prove that they are not infringing. They then compound the bad policy by allowing the same listing to then be challenged again by the trademark holder, putting the burden of proof again on the person who posted the listing.
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Anonymous Coward, 21 Oct 2009 @ 4:09pm

Re: cabin in the woods reference
anon coward meant the unibomber. ted kazinski basically he hated technology
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Anonymous1, 21 Oct 2009 @ 4:19pm

First, he's a profiled member. His name was Chris. I didn't have a problem with Chris, I assumed he was joking, or making commentary somehow, and I get it. That's actually pretty funny. I don't hate technology (big hint: this post), I just never found it worth my time to use ebay. Considering I bought my current vehicle off of craig's list, I know that there are alternatives to ebay. I just hate what greed does to good things. Thanks AC. The problem I had was with the person calling themselves Alex Hagen. Probably a troll, but even if trying to be funny, it wasn't.
Caught me on the wrong day......
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NayBayer, 21 Oct 2009 @ 5:54pm

Re: Is eBay really the villain here?
@Aaron,

Because while Nanda is certainly guilty of a lack of intelligence, tha fact that Ebay condones and supports this sort of action is truly egregious. Nanda can bend over so we can shove the clock up their a%^, but Ebay should absolutely know better than to give this action any leg to stand on.
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jenningsthecat (profile), 21 Oct 2009 @ 6:37pm

Re: Is eBay really the villain here?
Who do you blame, the whining bratty kid who stamps his foot and demands to have his way, or the adult who caves in to the emotional blackmail? Yes, Nanda should get a clue and grow up, but they have only their own interest to look after. eBay's primary responsibility is to its customers, and they're shirking that responsibility. eBay needs to grow a pair and tell Nanda, and other such blustering bullies, to get stuffed.
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Anonymous Coward, 21 Oct 2009 @ 8:21pm

Re: Re: Is eBay really the villain here?
the problem in this country is that a lawsuit could easily cost E-Bay a LOT. A WHOLE LOT. Even if E-Bay wins, the laws in this nation often favor the little brat over the parents.
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Anonymous Coward, 21 Oct 2009 @ 8:22pm

Re: Re: Re: Is eBay really the villain here?
Ie: even if E-Bay wins, litigation costs are still high.
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Chillienet, 21 Oct 2009 @ 11:14pm

Re:
You educate your feces? You sick F*#k!!
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REB, 22 Oct 2009 @ 4:27am

Re: re
Craigslist is great if you are in a large city but it's not very good anywhere else. eBay has lots of problems and it screws both the buyer and the seller but there is nowhere else that you can get a worldwide audience. While no one in your particular area may want what your selling all you need is someone on planet earth that wants it. I wish Craigslist would really compete with eBay and go globa.
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Chris, 22 Oct 2009 @ 8:36am

Re: Re: Re: re
If you're really paranoid just have them meet you at a local police station. Nobody's going to mess with you there.
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Anonymous1, 22 Oct 2009 @ 8:42am

You educate your feces? You sick F*#k!!

Actually they're self taught....

Craigslist is great if you are in a large city but it's not very good anywhere else..

Based on what?

there is nowhere else that you can get a worldwide audience..

Craig's list is content to serve the needs of people in the USA. They don't need to, nor want to compete with ebay.

If you see that as a way to "take on" ebay, they're pretty busy ruining their own buisness.
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btr1701 (profile), 22 Oct 2009 @ 9:00am

Re:
> If that was some sort of reference that's supposed
> to be descernable, it wasn't.

Sure it was. Easily identifiable. Star Trek II: The Wrath of Khan. It was even parodied just this week on an episode of the sitcom "Big Bang Theory".
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Anonymous1, 22 Oct 2009 @ 9:40am

@btr1701: Oh yeah. I remember when Khan when back to the woods on his home planet...silly me. Also, we all know that a TV sitcom with pop culture references about socially-ill adjusted individuals is the height of modern education...

/SARCASM
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Anonymous Coward, 22 Oct 2009 @ 11:35am

Re: so what can you sell on ebay?
if ebay follows their own rules, it would appear that nothing could be sold on it that was not actually created by the person selling it. but there already is a site for this, its etsy.com.

While etsy.com is indeed for handmade things, do they require that an item sold there is "actually created by the person selling it"?
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Anonymous Coward, 22 Oct 2009 @ 11:56am

Re: Re: re
"Problem solved, don't ever buy one.

Ever."

That's my plan.

/adds Nanda to the list of companies to never ever buy stuff from
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Christopher, 22 Oct 2009 @ 6:56pm

If this had happened to me
I would have sued the PANTS off the company in question and eBay...... the right of first-sale is NEVER TO BE INFRINGED, period and done with. The only time that it comes into play is if someone is selling something that is clearly marked not for resale.... and even then, the doctrine of first sale still applies, as judges have been saying lately.
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Anonymous Coward, 23 Oct 2009 @ 2:04pm

Re: Re: intersting math
By that math the U.S. has 1.3 billion people. I had no idea that we more than quadrupled our population overnight.

Check your math.
1,000,000/1%/%30 = 333,333,333 people.
That's not far off.
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DocMenach (profile), 26 Oct 2009 @ 1:04pm

Re: Re: Re: intersting math
Well, you missed the part where he said of the 30% that have internet connections, 25% know what is going on. That 25% part wuadruples the number again. Here is his exact statement again:
"Just in the United States a good 30% have connections to the internet, out of those maybe 25% have the knowledge to know what is actually going on and if even 1% of those users would do something, voice their opinion, call their congressman, 1,000,000 voices could be heard."

So that's 1,000,000/1%/25%/30%= 1,333,333,333. My math was spot on.
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nandahome (profile), 30 Nov 2009 @ 1:39pm

From the Creators of Clocky
We promptly contacted Dennis Yang after reading his article on our company. Our apologies for the confusion caused by the original message we sent to Ebay resellers. This message was intended for those resellers that are selling counterfeit Clockies, violating our copyright, patent and trademark rights. We were in no way trying to obstruct legal re-selling of our product. We understand that there are legitimate Clocky's on Ebay purchased through lawful means and we have edited our message to avoid any confusion in the future. If you have any questions, feel free to connect with us at service@nandahome.com
- Nanda Home Team.
[ link to this | view in thread ]
Strangel, 7 Dec 2009 @ 2:34pm

Re: From the Creators of Clocky
Good on you!

THAT is the way to handle a loudly (and publicly) voiced complaint. With class and seminars.
[ link to this | view in thread ]
ebay selling tips, 17 Feb 2010 @ 8:40am

eBay
How stupid!
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