Very Important: See update at the end of this post

It all started last week when one of the biggest fixed price job portals, a serious alternative to Fiverr, contacted Agriya and mentioned that their account had been frozen without any warning by PayPal. Naturally we were concerned because this person was our client and we often referred potential customers to their site to showcase our ability.

Further investigations revealed that the account was shut down at the request of Fiverr International Ltd who argued that the site was infringing upon their Intellectual Property.

A few days later and more clients contacted Agriya stating that their PayPal accounts had also been frozen, and FiverrWay wrote a long article about some of the other sites that have been affected.

So far, no concrete reason has been given for why the accounts were shut down, further more, there is no explanation on how Fiverr International Ltd even have the power to request that other company’s PayPal accounts be closed. If Intellectual Property Rights have been infringed then the correct procedure is to file a DMCA notice and give the defendant the option to file a counter claim.

Agriya find it deeply disturbing that PayPal have acted against many other companies without consultation – something which they have a history of doing in the past. It also defies belief that the Fiverr International Ltd and PayPal haven’t notified the site owners about the complaint.

Why Have Fiverr International Ltd Complained To PayPal?

Although we don’t know the exact reason why Fiverr International Ltd have complained directly to PayPal instead of to the site owner, there could always be a chance that they have some influence within the company to get these accounts frozen (Agriya definitely isn’t saying this is the case but it makes a cool conspiracy theory!). We don’t know of any other cases where a person has a legitimate PayPal account accepting payments for legitimate goods and services and then being shut down due to a complaint by a competitor. However, the grounds for the complaint remain a mystery and we only have speculation to go on, which includes:

  1. Fiverr have someone working in or have a strong influence in PayPal
  2. Someone at Fiverr felt that the design and code had been stolen (which it definitely hasn’t!)
  3. Fiverr took exception to the competitor sites using their brand name as leverage (ie. Best Fiverr Alternative)
  4. Fiverr didn’t like that competitors were copying their layout
  5. Fiverr didn’t like that competitors were copying their terminology
  6. Competitor sites were copying the text and instructions from the Fiverr website

With the exception of the first option, all the other options could have been conducted via DMCA notifications.

Does Fiverr Own Any Trademarks?

It was mentioned on one blog that the accounts could have been closed due to trademark infringements. Now clearly Agriya are not experts in Trademark Law, but there does appear to be three problems to this opinion though:

  1. Trademark and copyright infringements should be dealt with directly with the person or company who is infringing. PayPal have no legal power to decide whether or not a company is infringing upon the trademarks or copyright of another company
  2. Fiverr International Ltd don’t actually have any trademarks at the moment (it should be noted that Fiverr International Ltd do have copyright to all the text, graphics and scripts on their site)
  3. Fiverr International Ltd currently do not own any patents for their site or software

On the Fiverr.com website, Fiverr International Ltd state that:

FIVERR, $5 GIG, GIGS, I Will … For, The Things People Do For $5, DamnQuickPay, Fiverr graphics, logos, scripts, terms of use, instructions, designs and other service names are the trademarks and copyright of Fiverr International Limited

This immediately set off alarm bells because surely no one can trademark the phrase “I will … For”, it’s a hugely popular saying within the Internet community to say things like “I will code For food” and variations thereof. To find out for sure we went to the US Patent and Trademarks Office and used their search engine to look for Fiverr International Ltd’s trademarks.

To search for US trademarks you can go to http://tess2.uspto.gov/

What we found was that Fiverr International Ltd have APPLIED for various trademarks on 3rd November 2010, however the applications are all under review, it appears (again, we’re not legal eagles here, just looking at the terminology) they have NOT been granted any trademarks yet, even for the name Fiverr.

According to USPTO the Fiverr trademark is still waiting to be reviewed

According to USPTO the Fiverr trademark is still waiting to be reviewed

Going back to our reservations about trademarking the phrase “I Will … For”, Fiverr International Ltd have applied for a trademark, but it doesn’t appear to be for that exact phrase, if you look at what they are trying to trademark it includes the words AND an empty box AND the addition of $5, the full trademark they have applied for is shown in the image below:

Fiverr look to trademark a phrase and image

Fiverr look to trademark a phrase and image

Can Fiverr Trademark Terms Like Gigs and $5 GIG?

Technically you can apply to trademark any word or phrase, however if it already exists in the database then it will be rejected, further if you want to trademark a generic phrase for an industry then it may be rejected.

However, if the USPTO accepts Fiverr International Ltd’s trademark applications the phrases still have to go through a 30 day opposition period. According to the Houston Internet Law website, all trademarks that have passed the review are published online in the Official Gazette of the Patent and Trademark office.

It’s simply a case of monitoring the process of Fiverr International Ltd’s application and if it’s approved then watching out in the online publications to see when it is announced so that an opposition can be raised. With so many people affected by Fiverr International Ltd and PayPal’s actions we think there might be quite a few people who oppose some of the trademarks!

The Solution To The Problem

Since we don’t know what the exact reason for PayPal taking it upon themselves to be the judge, jury and executioner we only have some general suggestions on how to fix this:

  1. Switch to a new e-Currency, Agriya is working to integrate AlertPay and Moneybookers in to our FP Platform – existing customers please contact us for pricing
  2. Remove any reference to Fiverr on your site
  3. Ensure that your site doesn’t copy any text from fiverr.com
  4. Consider changing the design to something more unique
  5. Come up with some ideas that are totally unique

What Action Are Agriya Taking?

First things first, Agriya hasn’t copied any code or graphics from Fiverr.com, we have built our software in Cake PHP and designed the layout from scratch. Agriya is taking care to ensure that no text has been copied from the fiverr.com website in our FP Platform software and that the word ‘fiverr’ isn’t mentioned anywhere. Furthermore we are looking in to alternative wording and phrases like ‘gig’ – perhaps the Fixed Price Jobs industry can help us out to develop some completely new terminology!

Also, we are looking for many alternative payment systems and are in the process of integrating AlertPay and Moneybookers as standard for new clients. If you are an existing client please contact us for pricing on integrating a new payment system in to your site.

Final Thoughts

Your input on this disturbing chain of events is appreciated, why do you think PayPal can act in such an appalling manner without giving any opportunity to appeal? Why have Fiverr International Ltd gone directly to PayPal to complain about Intellectual Property Rights infringement instead of through the regular channels – and why have they been able to force PayPal to shut down competitor accounts?

Invitation To Fiverr

Although we don’t expect to hear from you, we would like to invite authorized representatives from Fiverr to come here and clearly state the problem you have with your competitors including specific Intellectual Property Rights which you feel have been infringed. By not being transparent about your actions or not providing any reasons then it only builds resentment against your company.

Invitation to PayPal

Again, we don’t expect to hear anything from you, but being crystal clear about exactly why Fiverr International Ltd has the ability to get competitor PayPal accounts shut down.

23rd November Update

We’ve got reports that both GigBux and UpHype are back up and running with their PayPal accounts. We’re just trying to get some more information from the admins to post it here on how they got PayPal off their back. Also, some other Agriya clients, Dealerr and Cinkue haven’t reported any problems to date.

24th November Update

We’ve had some very strong indications that the reason Fiverr International Ltd have made the complaints is because reference is made to the trademarks that they have submitted. From the site owners we have talked to that have managed to get their accounts back you need to prove to PayPal that you haven’t infringed upon any intellectual property or trademarks – use references to the USPTO website that show Fiverr International Ltd have not been granted any trademarks yet.

Furthermore, there is no way Fiverr can claim trademarks over the word Gigs when craigslist.org have been using the phrase for many years now (see the bottom right hand corner of their site).

Another client of Agriya also mentioned that they owned several trademarks and doing the admin for it is a nightmare because they have to check the Official Gazette of the Patent and Trademark office very frequently to make sure no trademarks are being considered that are similar to the ones he owns. He believes that even if the USPTO get a few objections then the trademark will not be given – particularly for the word ‘Gigs’ and ‘I will for’, however the word ‘Fiverr’ could be given as it is a unique business name, but it could be objected to on the grounds that it is similar to ‘fiver’ which is slang for $5 or €5 or £5.

5th January 2011 Update

It now appears that PayPal have understood that Fiverr have got no basis for their copyright infringement claims and from the reports we have received virtually everyone now has their PayPal accounts reinstated.

Happy news all round!