I get called by the media every few weeks for an interview regarding a current story.   On this particular day, I got a call from Beth Whitehouse, a reporter with Newsday in Long Island, NY.  She got a letter from a reader saying “Without my knowledge, my 8-year-old daughter signed up for eBay and bid $700 for Hannah Montana paraphernalia. Worse yet, she won her bids! I e-mailed the seller explaining the situation, and he was furious. Am I legally responsible for this payment?“

In most cases, if nothing has been shipped; no harm, no foul —the seller can relist the goods, and generally, the parent is not responsible for a contract entered into by an 8-year-old.

But can a child younger than 18 be held to a legally binding contract? Can parents be held responsible for their children’s actions in such cases?  My answer is a qualified “no.”  If, indeed, the daughter, as an 8-year-old, read the conditions when she opened an eBay account, including the ones that say users must be at least 18 years old and that bidding enters them into a legally binding contract, and was given an eBay ID, that agreement could be voidable because she does not have the “capacity” to contract (she is a minor).  However, if the 8-year-old signed on to the parent’s eBay account, with the parent’s permission (or perhaps they gave the daughter the user name and password), then the parent might be held accountable because the bidding was done under the parent’s name.

Sellers of children’s items should beware of such potential pitfalls.  If you sell items that are attractive to children, there is a risk that you are going to get a kid bidding on the item.

Every few weeks, I get called by the media for an interview regarding a current news story.   On this particular day, I got a call from Catherine Holahan, a reporter with BusinessWeek.  Back in  2007, Jayant and Rajat Agarwalla created Scrabulous, the online Scrabble knockoff that became a smash on Facebook.  When Hasbro, which owns the North American rights to Scrabble, filed suit for intellectual property infringement, the brothers removed the game from Facebook after the social network received a takedown notice from Hasbro’s lawyers alleging that Scrabulous violated its copyright and, therefore, Facebook’s terms of service. The brothers then reinvented their game as Wordscraper.  But a board game is not only protected under trademark laws for its brand name of the game, but is also protected under copyright law with respect  to the expression of the game.

Would changing the name from Scrabulous to Wordscraper be enough to satisfy Hasbro? The change of the name could help them on the trademark side. The new name would have to be so that it is not confusingly similar to “Scrabble.”  The question would be, under copyright law, is the expression of the new game so substantially similar that it would still constitute copyright infringement?  I explained to the reporter that ideas are as free as the wind. Courts don’t enforce the protection of an idea, they will however, enforce the way the idea is carried out or expressed. For example, the creators of Superman can’t protect the idea of a super strong person who saves people from criminals. They can, however, enforce their rights if someone created a hero who wears a blue suit with a red cape and flies around saving people when not working at a major metropolitan newspaper. Generally, courts are looking at whether a plaintiff can prove substantial similarity and access to the copyrighted expression.  Read the full article, Scrabulous Now Wordscraper, Hasbro Still Suing, by Catherine Holahan, BusinessWeek.