Introduction: The SmartPool name and logo, as well as our product names, have gained goodwill and widespread recognition throughout the industry due to our cutting edge innovative products, consistent use and our extraordinary marketing efforts. SmartPool works diligently to protect its brand, copyrighted photography and Intellectual Property to ensure we maintain both tangible and perceived value in the marketplace.
SmartPool actively supports the advertising and promotion of its products by its domestic retailers through materials provided by SmartPool. Our goal is to ensure that our brand remains strong and our image is not devalued via the use of unauthorized or outdated materials. We have built a strong reputation and following of satisfied customers in the industry and among consumers. To this end, SmartPool has determined that it will not support advertising or promotional materials, cooperative advertising or other materials that have the effect of diminishing or detracting from our brand equity as well as the perceived value of SmartPool products. Effective October 1, 2010, SmartPool has established an Advertising Policy (the “Policy”) on specified SmartPool products. The Policy applies to U.S.A. and Canadian retailers.
The SmartPool Advertising Policy establishes standards for advertising specified SmartPool products. Advertisements for specified SmartPool products must comply with this Policy in order for the retailer to be eligible to earn rewards under any SmartPool Rewards Programs for sales of SmartPool products reasonably attributable to the advertisements.
This Policy is neither a contract nor an offer to form a contract. This Policy describes the terms under which SmartPool may, in its sole discretion, choose to provide rewards to a Retailer under a promotional, rebate, or discount program, namely the SmartRetailer™ program, in respect of sales of SmartPool products which are reasonably attributable to advertising by the Retailer.
SmartPool reserves the right to add, modify or delete any of the rules, conditions, benefits, or rewards pertaining to any promotional, rebate, or discount program at its sole discretion without notice. SmartPool and its affiliates are not responsible for requests or correspondence relating to any promotional, rebate, or discount program statements, which are lost or delayed in the mail, in the email delivery process or otherwise in transit. SmartPool has the right to refuse to accept a Retailer’s participation in any promotional, rebate, or discount program or the SmartRetailer Program for any reason and at any time. SmartPool reserves the right to terminate Retailer’s participation in any promotional, rebate, or discount program, with or without cause, at any time, upon giving ten (10) calendar days written notice.
A list of Specified Products and the requirements relating to advertising such products will be communicated to Retailers on a periodic basis. Each Retailer is responsible for ensuring its advertising complies with this Policy.
Authority: SmartPool alone is responsible for enforcing this Policy and will do so unilaterally. If an advertisement for a Specified Product does not comply with this Policy, then the Retailer will not earn any Rewards via any SmartPool Program for any sales of Specified Products reasonably attributable to the violation of the Policy. SmartPool's designated Advertising Policy Administrator (see below) is the only person authorized by SmartPool to communicate Advertising Policy updates, changes, or decisions. No other SmartPool representative or agent is authorized to confirm compliance with, discuss, or amend this Policy. SmartPool will not communicate with any Retailer regarding another Retailer's advertising practices. Please note that SmartPool does not entertain complaints from its Retailers regarding another Retailer's advertising practices. SmartPool has the right to change the Policy, and add or delete Specified Products at any time.
Consequences: If any Retailer chooses not to comply with this Policy, SmartPool reserves the right at its sole discretion to not grant any rewards under any promotional, rebate, or SmartRetailer Program for any sales of Specified Products which are reasonably attributable to the violation. If the Retailer has already received Reward dollars because SmartPool was not aware of the Policy violation, SmartPool may unilaterally deduct up to an equivalent amount of future Promotional Rewards once it becomes aware of the violation. In the event of more than one violation within a one-year period, a management representative of Retailer shall meet with a management representative of SmartPool to review the Policy violations.
Covered Advertising: The types of advertising covered by this Policy are:
Participants: Participation is open to any Retailer that desires to participate in any 2011 promotional, rebates, or discount program subject to SmartPool's acceptance. The Retailer must communicate its interest in participating in the SmartRetailer Program to a SmartPool Company Sales Representative.
All Specified Product Advertising must reflect positively on the SmartPool brand and on the brands of all Specified Products. In addition, all Specified Product Advertising must be consistent with SmartPool's branding guidelines as communicated by SmartPool from time to time.
Specified Product Advertising must not violate SmartPool's intellectual property rights, including SmartPool's trademark and its ownership of copyrighted material. Retailers are permitted to make use of stock pictures, graphics and video footage provided by SmartPool but only if such material in the form provided, without any material modification (unless SmartPool has authorized the modification).
If Specified Product Advertising describes the features of a Specified Product or any warranty associated with the product, such description must be accurate and based on information provided by SmartPool.
Each Retailer is free to independently set its actual resale price for any SmartPool product; however, if it is a Specified Product that has a MAP price, it cannot be advertised below the MAP price.
Bundling and Value-Added Offers: All bundles must be advertised at or above the cumulative MAP price of the Specified Products. If a Specified Product is bundled with a non-SmartPool product, the advertised bundle price must be at or above the MAP price of the Specified Product plus the price of the non-SmartPool product if sold separately. If a Specified Product is bundled with a gift card or similar item with a specific dollar value, the advertised bundle price must be at or above the MAP price of the Specified Product plus the value of the other item. The advertisement cannot state or imply that the Specified Product is free or discounted in any way. Bundling should not be used to “camouflage” discount advertising of Specified Products.
Discounts and Savings “Call-Outs”: Advertisements for Specified Products may be advertised with a percentage or specific dollar amount discount. If such discounts result in a net price lower than the MAP price of a Specified Product, then such advertisement will be a Policy violation.
Internet Site Pricing: Pricing listed on an Internet site is considered “advertised price” and must adhere to MAP pricing until the product is placed in the “virtual shopping cart.” Once the product enters the shopping cart, it is considered part of the check-out procedure and is not a MAP violation provided no other part of the internet site suggested or implied that a lower price would or may be available at check-out.
Price Mark-Outs: Retailers are permitted to advertise Specified Products with price “mark-outs” or “mark-throughs,” provided the price reflected on the advertisement is at or above MAP.
As an eBay VeRO Program member, SmartPool actively reviews items for sale on eBay to ensure that items are not misrepresented or sold below MAP. SmartPool rigorously protects its trademarks and copyrights and polices eBay on a daily basis.
SmartPool makes every attempt to remove all unauthorized uses of its intellectual property from eBay through its participation in the eBay VeRO Program. SmartPool reviews auction listings to determine whether its Intellectual Property is being misused, such as improper use of trademarks or copyrights and products being sold below MAP pricing. Due to the number of listings for SmartPool products on eBay, SmartPool is not always able to identify and remove every unauthorized listing.
Sellers on eBay must be responsible for their own conduct and must ensure that they are not violating SmartPool’s intellectual property rights. To this end, it is a Policy violation to use copyrighted photographs of SmartPool products to promote the sale of the item you are listing, even if you "found" those images on the Internet, unless SmartPool permission has been received. (Publication on the Internet by the copyright owner does not release the images into the public domain for use by all without liability). Anyone who produces, copies, distributes or displays SmartPool's copyrighted materials, including photographic images and accompanying item descriptions appearing on the SmartPool website and/or advertisements without SmartPool's permission may be liable for copyright infringement. In addition, the use of the SmartPool name or trademark in connection with goods not made by or under the authority of SmartPool is strictly prohibited.
SmartPool Advertising Policy Administrator PO Box 111 Lake Hiawatha, NJ 07034
Q: Why has my auction been removed?
A: SmartPool is committed to the strict enforcement of its trademarks and other intellectual property rights. We have requested the removal of your auction because SmartPool has a good faith belief that the merchandise you were offering for sale otherwise infringes SmartPool’s trademarks and/or other intellectual property rights.
Q: How did SmartPool determine that my auction offered for sale goods were otherwise infringing?
A: Due to the nature of eBay, this determination was based upon the photographs, title of the auction and the description of the goods that you provided.
Q: Why was I allowed to post my auction if it is illegal?
A: EBay maintains that it cannot conduct a comprehensive pre-screening process to account for such violations. Therefore, the ability to post such auctions of infringing merchandise DOES NOT mean that the sale of such merchandise is legal.
Q: Why was my auction removed while many other auctions offering “SMARTPOOL” items for sale remain up & why are you picking on me?
A: SmartPool cancels eBay auction on a daily basis and your auction was merely one of many cancelled during a routine search. However, due to the volume of items offered and the way eBay works, it is impossible to cancel every infringing SmartPool auction.
Q: I believe that the item SmartPool reported is not in not in violation of IP rights. How can I get my auction reinstated?
A: If you believe that your auction was incorrectly reported to eBay, please send an email to: map@jaygon.com with the following:
Q: Why was I not informed directly by SmartPool before I was reported to eBay?
A: Due to the nature of eBay and volume of auctions it is impractical for SmartPool to contact each seller regarding their auction. SmartPool uses the VeRO program as the most efficient method of reaching its primary objective on eBay which is to decrease the volume of infringing products offered.
Q: Can I use the word “SMARTPOOL” in an auction heading even if I am not selling a SMARTPOOL item? Can I use the name of a SmartPool product in the heading even if I am not selling the SmartPool product?
A: No. Courts have held that this confusing practice of enticing buyers, referred to as “initial interest confusion” is a form of trademark infringement, even though consumers may ultimately realize the goods offered for sale in an auction do not originate from SmartPool. This practice is an attempt to exploit the goodwill associated with the SMARTPOOL and/or product name and will not be tolerated. SmartPool maintains a registered Trade Mark in its name and in its product names, including its use for retail services, which prohibits the use of those trademarks in relation to goods that do not originate from SmartPool. It is both misleading and infringing to use the “SMARTPOOL” Trade Mark or any SmartPool product name in an auction title or description because such use may attract buyers who are searching for authentic SmartPool products.
Q: Can I post an auction that expressly states that the Item is “NOT GENUINE SMARTPOOL” or refer to it as “SMARTPOOL-STYLE”, “SMARTPOOL INSPIRED” or any similar phrase?
A: No. A disclaimer regarding the lack of authenticity of the goods, such as “fake”, “faux”, “SMARTPOOL-Style”, “SMARTPOOL-like”, etc., is illegal under laws which prohibit the sale of counterfeit/infringing merchandise. These products are a violation of SmartPool’s trade mark rights and SmartPool will enforce these rights with the same force as those which claim to be authentic. It is also a violation of eBay’s listing policies.
Q: Why is SmartPool concerned with my sale of a single piece of unauthorized SmartPool product?
A: SmartPool takes all matters of infringement seriously regardless of the quantity of items listed for sale. We cannot grant exceptions to anyone simply because the infringement concerns only one or two items.
Q: Why was my auction removed when I have not made any reference to “SMARTPOOL” in my title or description?
A: In this case, you have most likely offered for sale an item that displays an identical or confusingly similar version of the SMARTPOOL Trade mark or you are otherwise in violation of SmartPool’s Advertising policy.
Q: If I promise not to infringe upon SmartPool products again, will you have eBay reinstate my account?
A: We have no control or influence over Ebay’s policies and cannot assist eBay users who have had their user accounts suspended or cancelled. The reinstatement of accounts is entirely at eBay’s discretion. You should contact eBay directly should you have any queries relating to eBay’s VERO policy.
Q: Would advertising that states “Call for price” or “Too low to print” or promises to beat any advertised price be a violation of the Policy?
A: Yes, it is a violation of the MAP section of the Policy.
Q: What if an employee or media supplier makes a mistake that results in a violation?
A: It is the Retailer’s responsibility to monitor its own advertising. SmartPool will not differentiate between intentional and accidental violations when enforcing the Policy.
Q: Can I submit my ads in advance to be approved for Policy compliance?
A: Although SmartPool representatives may review ads for a variety of reasons, SmartPool does not approve ads for Policy compliance. SmartPool’s approval of your ad does not mean that it complies with our Advertising Policy. Each Retailer is solely responsible for an ad’s compliance with this Policy.
Q: Does the Advertising Policy apply to advertisements for used or refurbished products?
A: Yes, except that MAP pricing does not apply as long as the product is clearly and prominently identified in the advertisement as used or refurbished.