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Roger
Roger, Lawyer
Category: Intellectual Property Law
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Experience:  BV Rated by Martindale-Hubbell; SuperLawyer rating by West
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If I received a undertaking for infringement of Intellectual

Resolved Question:

If I received a undertaking for infringement of Intellectual Property Rights what should I do? It says they interested party will forgo its right to seek treble damages. But does that mean they will seek other damages related to sales of the product under section 15 USC 1117(a)?
Submitted: 1 year ago.
Category: Intellectual Property Law
Expert:  Roger replied 1 year ago.
Hi - my name is XXXXX XXXXX I'm an Intellectual Property litigation attorney. Thanks for your question. I'll be glad to assist you.

Treble damages (triple damages) are available under federal copyright laws if there's proof of INTENTIONAL infringement, etc. These damages aren't a given, so the claimant offering to give this up isn't really giving up anything he/she/it is guaranteed.

If you believe that the claim is legitimate, then you may want to consider trying to settle with them for a nominal amount. One thing to keep in mind is that copyright litigation is VERY EXPENSIVE, and most claimants do not want to sue because of this issue (also, it's usually required that the copyright be registered with the US Copyright Office). Thus, it's not cheap to pursue.

Thus, if you can make a reasonable offer, you can likely settle with the claimant.

Also, if you're not convinced of the infringement, you may want to consult an attorney before responding.

I hope this answers your questions, but if you need something further, please let me know and I'll be glad to respond.
Customer: replied 1 year ago.

I have a follow question.


 


But what if I was unaware that the prodcut that I was selling was infringing of IP rights. I was purchasing this product at a low price overseas and it was advertised as 100% Genunie from wholesaler. I was also a misled by wholesaler.


 


If I sign the undertaking will it admit guilt?


 


How would they calculate damages and or penalites.


 


Thanks.


 


 

Expert:  Roger replied 1 year ago.
If you were unaware of the issue, that should relieve you of any treble damage claim, but it doesn't relieve you of being liable - - not knowing doesn't relieve you of liability.

That said if you were scammed, then you would have a right to sue the person/entity that sold the items to you. But, that doesn't get you out of the issue with the current claimant.

If you settle, it will not be an admission of guilt. Instead, it would just be a settlement - - the settlement agreement should contain language that says you're not admitting guilt, and that you're just compromising the claim.

Damages are hard to calculate because there's no specific formula. Usually, the claimant would have to show how much you profited from the items and then recover that amount. But, if you're going to try and settle, it would likely be for something less than that. But, you would just have to negotiate that with the claimant.
Customer: replied 1 year ago.

If i negoatie through a laywer would that be better or shoud i attempt to speak to them myself? Also would you be able to provide additional service out side of the website?


 


Thanks

Expert:  Roger replied 1 year ago.
You may want to take a shot on your own, and if it doesn't go we'll, you can always seek out the assistance of an attorney.

We can't take on clients through the site, but I can direct you to visit www.martindale.com and search for an attorney in your area.

Please let me know if I can help further. Thanks.
Roger, Lawyer
Satisfied Customers: 26431
Experience: BV Rated by Martindale-Hubbell; SuperLawyer rating by West
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