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TexLaw
TexLaw, Attorney
Category: Business Law
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Experience:  Internationational Commercial Attorney
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Hi lawyer. Let me tell you my situation. About 2 months ago,

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Hi lawyer. Let me tell you my situation. About 2 months ago, I listed selling jerseys on eBay, later my listing got pulled off because a law firm called Gibney Anthony & Flaherty in New York claimed that I sold fake jerseys which violated Adidas trademark. I got jerseys from suppliers in China, I have no ideas that they were fake, now I still don't know if they're fake or not. Today, I received a letter from this law firm (the letter was delivered to my PO Box, didn't require signature). The letter is below:

Dear Mr. Thai:

It has recently come to our attention that you are illegally offering for sale and selling merchandise bearing counterfeits of the adidas and/or Reebok and/or our other client's Trademarks(the"IllegalMerchandise")on eBay.com.
Such action is likely to cause confusion and constitutes trademark counterfeiting, infringement and dilution of our clients' intellectual property rights. Your conduct violates federalandstatetrademarklaws.Asaresult,youmay beheldliablefortrademarkcounterfeiting andinfringement. Thepenaltiesforsuchconductaresevereandmayincludeinjunctiverelief, actual damages, statutory damages of up to $2,000,000 for each trademark that has been counterfeited,costsand attorneys'fees(See 15 U.S.C.§ 1117 etseq.).

Therefore,we demand that you immediately cease and desistfrom any and alloffering forsale,sale,distribution,importation,manufacture,advertisement,promotionanddisplayofthe IllegalMerchandise. We alsodemandthatyoudothefollowing:
1. SurrenderallIllegalMerchandiseinyourpossession,custodyorcontrol. 2. ProvidetheidentityofthesourceoftheIllegalMerchandise.
Do notdestroynordiscardtheIllegalMerchandise.We stronglyurgeyounottocontact thesupplieroftheIllegalMerchandiseortotakeanyotheractionwhichwouldinterferewithour client's ability to eliminate Illegal Merchandise from the marketplace and will hold you responsibleforyourcomplicityinanysuchactionstothemaximum extentprovidedbylaw.
Please complete the information below and return italong with the merchandise to: Gibney,Anthony&Flaherty,LLP,665FifthAvenue,New York,NY 10022,Attn:IP Department.
You hereby warrantand representthat:
1. AlltheIllegalMerchandisehasbeenwithdrawnfromeBa,~andallothervenuesandyou have surrendered all Illegal Merchandise in your possession or control to the undersigned counselforadidas.
2. YoureBaysellerIDis:
3. You willneveragainadvertise,manufacture,offerforsale,sellorotherwisedistributethe Merchandise that infringes upon adidas and/or Reebok's and/or our other client's rights in anyvenue,including,butnotlimitedto,eBa,~.
4. Yousold piecesofIllegalMerchandiseandyourprofitsfromthesesales were$
5. Youaresurrendering piecesofIllegalMerchandise.
6. Yoursuppliers)fortheIllegalMerchandiseandits(their)contactinformationis:
GIBNEY ANTHONY & ~~.AHERTYr~p
IN WITNESS WHEREOF,youagreetotheforegoing. Date:
PrintName:
Signature:
Please be advised that this is not an exhaustive list of adidas' rights or remedies. Based on the information you provide and your compliance with the aforementioned demands, adidas reserves the right to seek damages in connection with your infringing activity. Your failure to respondortocomply withthesedemands beforeJune 14,2013,may resultinourclientstaking legal action to enforce their rights,all of which are hereby expressly reserved.

I'm very worried right now. I have researched on the internet and found out that a lot of people were in the same boat with me. Most of people just ignored because they believed it was just a scare static. SOme ignored and it went away eventually. I really have no idea. Would this be possible that they suit me in court? I mean they don't have any evidence, all they have is the pictures and description on eBay. What should I do? Thank you!
Submitted: 1 year ago.
Category: Business Law
Expert:  TexLaw replied 1 year ago.
Hi,

Thank you for your question and I'm glad you've reached out for help.

You should be concerned about this, as it is a legitimate legal challenge.

How long have you been selling the jerseys and how much in sales revenues have you generated?

Have you taken down the ads on ebay?
Customer: replied 1 year ago.

I started in May, just more than a month ago. The revenues was about $4,000, but profit about less than $900. Yes, I have taken down everything from eBay


 

Customer: replied 1 year ago.

I mean the letter is weird because there wasn't any signature of the person who wrote this letter. It was just a small square box with a few lines which I believe to be printed, not written down by pen.

Expert:  TexLaw replied 1 year ago.
All right. The letter is likely legitimate, as that law firm does this exact kind of legal work.

With this small amount of revenue, your liability is very very limited. Further, if you were unaware that you had counterfeits, then this takes out the "knowledge" element of the charge against you, and makes it so that the damages that could be asserted against you are only for the seizure of your counterfeit goods and any profits you have made.

Since you have only sold $4,000 worth and have made very little profit, this would not be a case they would pursue against you. So the question really is whether you want to voluntarily surrender the counterfeit sport jerseys to them in exchange for a release, or whether you just want to ignore it.

Have you been an ebay merchant for very long?

How much product do you actually have?
Customer: replied 1 year ago.

I just started selling on eBay in May, trying to make a few bucks since I'm a student. Right now I only have about 10 items left. I think if I ignore it they will send another letter, just as they did to other people. If they ask for send them some money, should I do what they ask?

Customer: replied 1 year ago.

And if you send them all the jerseys and sign the form they sent me, will it mean that I admit I sold illegal merchandise?

Expert:  TexLaw replied 1 year ago.
At the level you are talking about, I would ignore this. They will be able to review what you've done online and see that you are not a big target. I would simply stop selling.

Whatever you do, do not send anything back to them admitting that you have counterfeit goods or that you have made any money from it whatsoever. That would be throwing yourself to their mercy, and they are not going to show you mercy if you hand them a case.

If you keep your head down in this case, they will most likely (98% probability) leave you alone, as it is simply to expensive for them to actually pursue you.

Please let me know if you have any further questions. Please also kindly consider rating my answer positively so that I am compensated by the website for my work on your question. Rating positively does not cause an additional charge and does not prevent us from further discussing your questions.

Best Regards,
ZDN
Customer: replied 1 year ago.

Just one last concern, if I ignore, and they will suit me, what is the chance that I win the case? Will I pay them $2,000,000 like they said? Or even I will have to end up in prison?

Expert:  TexLaw replied 1 year ago.
If they sue you, you will lose the case, but you will only be liable for your profits of $900, and possibly their attorney's fees.

However, if it comes down to it, and they actually sue you, you would then contact them and tell them that you did not know they were fakes, only made $900 and destroyed the fakes after you got their letter. They would at that point most likely drop the lawsuit.

Filing a lawsuit over $900 is just not something they are likely to do though.

They are after the big players, not you. Since you have not been doing it for very long, and have immediately ceased your action, I would bet that they will not pursue this much further. You may get a few more letters, but I do not think they will sue you.
TexLaw, Attorney
Category: Business Law
Satisfied Customers: 4265
Experience: Internationational Commercial Attorney
TexLaw and 6 other Business Law Specialists are ready to help you
Customer: replied 1 year ago.

All right, I feel a lot better after viewing your answers. Thanks! I hope everything will be ok for me. Lessen learned, really! I will rate you excellent service! Thanks!

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