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BizIPEsq.
BizIPEsq., Attorney
Category: Intellectual Property Law
Satisfied Customers: 996
Experience:  I am a tech attorney and I represent clients with technology, internet and intellectual property matters
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Ive received an email from Rosetta Stone saying that I have

Customer Question

I've received an email from Rosetta Stone saying that I have to response to this email within 5 days or they will reserve the right to take legal action against me.
I sold 4 copies of Rosetta stone Spainish, which obtained from a friend of mine who told me that he got them from a Chinese software liquidator. He asked my help to sell them on ebay.
What should I do to protect me from going to lawsuit with RS.
Should I ignore the email? Since I've already stop selling any RS on my ebay account,
RE: Cease and Desist/Illegal Distribution of Counterfeit Rosetta Stone Software
April 29, 2013

My Address
XXXXXX
XXXXXXX, NY XXXXX

646-XXX-XXXX

(My email Address)

RE: Cease and Desist/Illegal Distribution of Counterfeit Rosetta Stone Software

Dear XXXXX,
(collectively, “you”):

Rosetta Stone Ltd (“Rosetta Stone”) is the owner of the well known trade mark and trade name ROSETTA STONE.

Rosetta Stone takes seriously any infringement of its trademarks, copyrights and other intellectual property rights, and has been conducting a broad investigation, in conjunction with various federal and state law enforcement agencies, into the illegal counterfeiting, sale and distribution of Rosetta Stone software. Through reports from consumers and/or various other sources, Rosetta Stone has been made aware that you may have offered for sale, sold and/or distributed counterfeit or otherwise unauthorized software that purports to be Rosetta Stone software through various Internet outlets, including but not limited to www.eBay.com.

If you believe that you have been linked to this counterfeiting investigation in error, or if you would like to provide any mitigating or clarifying information regarding your activities and your source for the product you marketed and/or sold, you must contact us no later than 5 days from receipt of this notice. Please be aware that unless we hear from you in the next 5 days, Rosetta Stone will seek all appropriate legal and equitable relief arising out of your violation of United States law.

In addition, it is imperative that you immediately cease and desist all infringing activity with regard to Rosetta Stone’s software and related materials, and provide written confirmation. Your failure to comply immediately with the foregoing and provide written verification will be added to the case-file.

Rosetta Stone’s software is protected under a wide range of state and federal statutes. You should be aware that the distribution of counterfeit software violates federal copyright and trademark laws, including unfair competition and the Lanham Act, as well as certain state and local laws. Even an unintentional distribution of counterfeit software in violation of the federal copyright and trademarks laws could subject you to civil liability. Federal law authorizes damages of up to $150,000 for each willful copyright infringement and up to $1,000,000 for willful trademark infringement, in addition to 5 years of imprisonment, or 10 years for repeat offenders.

In addition, your activity is likely to cause consumers to believe that you are authorized by or associated with Rosetta Stone.

Please be advised that Rosetta Stone hereby reserves all of its rights to seek all appropriate legal and equitable relief arising out of the aforementioned violations of law. You have a duty to maintain all relevant documents, including electronic files. As such, you must not only refrain from affirmatively destroying documents and files, but must also turn off or otherwise prevent any automatic or systematic deletion of electronic files, inasmuch as those files may relate to your selling of purported Rosetta Stone software and related materials.

We urge you, or your attorney, to contact XXXXX XXXXX in the Legal Department of Rosetta Stone at (XXX) XXX-XXXX no later than 5 days from the receipt of this letter to confirm that you have discontinued the distribution of counterfeit and/or unauthorized software and to discuss this situation. Alternatively, you can go to the Rosetta Stone website (www.rosettastone.com), call the toll free number listed on the top (1-XXX-XXX-XXXX), and ask for XXXXX XXXXX in the Legal Department.

Sincerely,

Rosetta Stone Enforcement

Legal Department

RosettaStone.com
Submitted: 1 year ago.
Category: Intellectual Property Law
Expert:  Dimitry K., Esq. replied 1 year ago.

Thank you for your question. Please permit me to assist you with your concerns.

The answer I will provide you is likely not going to be favorable, so kindly do not blame the proverbial messenger. I strive to provide you with the best information even if not always welcoming so that you can make the best decision for yourself going forward.

Rosetta Stone is notorious for aggressively and fairly quickly defending their copyright. They do not allow unlicensed software to be sold anywhere, so they frighten away ebay listings, craigslist postings, and anything else they can find. The issue for you is that you were attempting to sell a counterfeit item, which makes this copyright infringement and that also means that they can indeed sue you for damages, attorney fees, and pursue charges. Having said that, it almost never gets to that point--if you contact them and try to negotiate, they may possibly agree to a payment from you from anywhere of $500 to $3,000 for attempting to infringe on their copyright. If you choose not to negotiate, they will sue you and they will very likely prevail, so possibly negotiating with them as the letter states may be the cheapest solution all around.

Hope that helps.

Customer: replied 1 year ago.

How should I start to negotiate with them thru email??


Any template that you can suggest for me to start off the negotiation?


And how to fight for the lowest payment to have it settle outside of the court?


Thank you

Customer: replied 1 year ago.

How much likely that they will file a lawsuit against me if I didn't reply to that email?


I've seen people experienced that same situation as mine, and they chose not to reply. At the end, the issue was just put aside, and no consequence followed.


I'm worried about it

Expert:  Dimitry K., Esq. replied 1 year ago.
Thank you for your follow-up. Please allow me to respond to each concern.

The letter has the name and number of the attorneys office. Consider reaching out to them first, directly, and not in writing. While that is taking place you can consider sending an email stating thst the product was not yours or otherwise contesting their claims. I agree that there is no guarantee thst they will pursue you, but this company especially tends to be fairly vigorous over protecting their rights. To fight for lowest claim, never admit liability and wait for their offer, then counter and show lack of income on your part. If it costs them more to sue you than they will obtain in return, they likely won't bother.

Hope that helps.
Customer: replied 1 year ago.

May I just ignore it, and move on?


 

Expert:  Dimitry K., Esq. replied 1 year ago.
Thank you for your follow-up.

Please understand that I am not your attorney and I cannot advise or suggest a specific course of action. Just please be aware that if you do choose to ignore it, they may potentially act on their threats. There is no guarantee that they will choose to let this go or forget about. So ignoring this message is purely at your own risk. They do have a reputation of vigorously defending their intellectual property rights.


Good luck and hope that helps.
Expert:  Dimitry K., Esq. replied 1 year ago.
I see that you rated my answer as 'poor'. What specifically did I fail to address, or are you unhappy over being potentially sued, something that I personally have no control over? Please advise.
Customer: replied 1 year ago.
Relist: Incomplete answer.
Expert:  BizIPEsq. replied 1 year ago.
Let me answer your questions

Many times ignoring such demand letters works (obviously there are no guarantees). You see even though the law says that potentially they are entitled to collect $150,000 in damages, they have to prove that your infringement was willful. You had indicated that you truly believed that a software liquidator sold you the software, so it is entirely possible that they would have a difficult time proving that your actions were willful. If your actions were not willful then the damages amount decreases significantly down even their actual damages from your sale which is typically the profit you made from selling the 4 copies.

Furthermore, consider the cost of filing a law suit. It is expensive to file one and there is no guarantee that they will win. And even if they do win, if you don't have money or property then they in effect wasted their time. Such collection attorneys typically work on volume and on contingency and they cannot sue everyone. Their goal is to scare you and then settle with you. Of course this is not to say that they will never sue you, but consider the fact that you only sold 4 copies. The amount of copies you sold and the damages you caused them do come in as a factor, especially if they cannot prove that you did it willfully. What do you think, will they spend thousands upon thousands of dollars to potentially recover a few hundred dollars and potentially from someone who doesn't even have it?

Finally, the fact that they sent you an email and not a letter by mail indicates that they do not have your full information. This indicates that they did not seek a subpoena rather likely requested such information directly from ebay. If however you ever receive a letter or a John Doe notice from ebay saying that your info has been subpoenaed and certainly if you receive a summons and complaint then you would know that RS escalated the actions against you.

Until then you can call up the attorney and tell them that you are poor, that you don't have anything that maybe you can cobble together $100-$300 and pay them your profits from the sales or you can wait and see if they escalate the information request against you. It's a gamble but now that you know some of the strategies behind you can make it a calculated gamble

I trust this answered your questions

Please rate my answer. Without your rating I do not get compensated for my work.

Good luck!

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