How JustAnswer Works:

  • Ask an Expert
    Experts are full of valuable knowledge and are ready to help with any question. Credentials confirmed by a Fortune 500 verification firm.
  • Get a Professional Answer
    Via email, text message, or notification as you wait on our site.
    Ask follow up questions if you need to.
  • 100% Satisfaction Guarantee
    Rate the answer you receive.

Ask Attorney Wayne Your Own Question

Attorney Wayne
Attorney Wayne, Lawyer
Category: Intellectual Property Law
Satisfied Customers: 1506
Experience:  Practicing Law Since 2000
Type Your Intellectual Property Law Question Here...
Attorney Wayne is online now
A new question is answered every 9 seconds

Johnson and Pham asking for $20,000.00

Customer Question

I recieved a certified letter from Johnson and Pham demanding $20,000.00 for items I sold on ebay. I called them to explain my case and to tell them that I was not aware that the people that sold me the items was selling me counterfeit items. I furnished the name and all contact info I had regarding this company as well as showing them how I found this company. I Google searched for cell phone cases wholesale and a website came up on top of the list, alibaba.com, I followed link and it took me to a page that showed all the cases they carried with prices, nothing looked out of place and all items openly showed the companies logos of all products being sold.
The law firm told me that they were well aware of this company and that they are known to sell fake and couterfeit items.... well thats good for them becasue I had never heard of them and did not know that there were websites selling like this. I didnt go to some dark alley or china town looking to score fakes... I purchased from what I thought was a real company.
The lawfirm demanded that I send them any remaining inventory and that I provide them with a full list of anyone I sold to.
Should I do this and do I have to, can I get in more trouble for doing this?
I stopped selling the moment I received the letter from them.

Submitted: 1 year ago.
Category: Intellectual Property Law
Expert:  Attorney Wayne replied 1 year ago.
PLEASE DO NOT use the rating system until satisfied. Instead, please click REPLY TO EXPERT to continue our conversation.

Thanks for contacting us. I am so sorry to hear of this. Sadly, this kind of thing happens to many small-time sellers. Sometimes the wholesale goods they obtain are counterfeit -- sometimes not. But because a manufacturer has to police the market to ensure that counterfeits don't either sully its name or harm its profits, these letters often go out to anyone who is selling the product that the manufacturer does not have advance knowledge of.

It is important in settling a matter like this to have written agreements with the manufacturer to settle the case so there can be no further legal action over these items. Happily, in many counterfeit cases, they go after the small seller in order to get to the distributor and fabricator of the counterfeit goods. But not always.

No one, except your own lawyer, can make a reasonable judgment as to the wisdom of doing what the manufacturer asks -- as only your own lawyer can evaluate the facts, circumstances and documentation wholly confidentially, protected by attorney-client privilege (obviously that can't be done on a publicly accessible legal information web site).

That lawyer could also take action against the website selling the counterfeits. If the goods were misrepresented, there could be a case in which the wholesale seller would be forced to pay for any losses. But again, this is an evaluation that should be made by one's own lawyer under attorney-client privilege.

Ultimately, small time sellers getting caught up in a thing like this don't have much legal protection if the goods are indeed counterfeit. While lack of knowledge may be a defense to criminal charges, when it comes to lawsuits involving trademark infringement, even unintentional infringement can lead to a civil judgment that can be expensive.

While it is true that manufacturers want to stop the big fish and may be willing to leverage information and goods in exchange for settling without further cost to the small time seller, the only way to ensure that is a negotiated agreement. And in such an instance, when a big company has lawyers pressing the matter, there is much room for mistake unless one is represented by a lawyer, too. So again, I stress that even if it costs a few hundred dollars, get a lawyer involved early on, just for peace of mind that the negotiation with the manufacturer is being handled professionally and one's own interests are being properly looked after.

Absent a lawyer, it is possible, but probably much harder, to get a release from any liability agreement, which would be goal in turning over anything to the company.

I wish you speedy resolution in this matter.
Attorney Wayne, Lawyer
Satisfied Customers: 1506
Experience: Practicing Law Since 2000
Attorney Wayne and other Intellectual Property Law Specialists are ready to help you
Customer: replied 1 year ago.

Another expert advised to send them a certified letter that I have ceased selling these products and destroyed any products I have and also state that I would be a Fact Witness against the Alibaba.com which is where I got the products from. What do you suggest

Expert:  Attorney Wayne replied 1 year ago.
Evasion will not eliminate the possibility of a lawsuit that could be costly. If someone has already sold something counterfeit, then the only way to prevent bigger trouble is to have an agreement in place with the company that gives it something it wants in return for an agreement to limit or waive its right to sue. This is subject to negotiation.

Hypotheticals are fine -- but until the other side has agreed to anything, everything is conjecture. My point was not how to dispose of the merchandise but to come to an agreement. If destroying remaining stock will be satisfactory to the other side, that's fine. But it won't prevent lawsuits over what has been already sold. So the only information I can provide is to negotiate a settlement so as to limit liability for what has already been sold.

It may be possible to negotiate a complete waiver of liability; that depends on what the other side wants or is willing to accept. The more flexibility in a negotiation the better. Remember, if one gets a lawyer (as recommended), negotiations aimed at a settlement do not create any evidence the other side can use offensively later because he or she is less likely to make procedural mistakes that the other side's lawyers can take advantage of.

So absent a window into the other "expert's" thinking and fact base, I can't really say whether the advice was good or not.

In sum, this has to be negotiated with a written agreement -- that both sides find acceptable. Usually, in a negotiation, the more one can put on the table, the better one's position is. People usually don't take nothing away from the negotiating table while giving up something in exchange for nothing.

Again, I wish you resolution in this matter.

JustAnswer in the News:

 
 
 
Ask-a-doc Web sites: If you've got a quick question, you can try to get an answer from sites that say they have various specialists on hand to give quick answers... Justanswer.com.
JustAnswer.com...has seen a spike since October in legal questions from readers about layoffs, unemployment and severance.
Web sites like justanswer.com/legal
...leave nothing to chance.
Traffic on JustAnswer rose 14 percent...and had nearly 400,000 page views in 30 days...inquiries related to stress, high blood pressure, drinking and heart pain jumped 33 percent.
Tory Johnson, GMA Workplace Contributor, discusses work-from-home jobs, such as JustAnswer in which verified Experts answer people’s questions.
I will tell you that...the things you have to go through to be an Expert are quite rigorous.
 
 
 

What Customers are Saying:

 
 
 
  • Mr. Kaplun clearly had an exceptional understanding of the issue and was able to explain it concisely. I would recommend JustAnswer to anyone. Great service that lives up to its promises! Gary B. Edmond, OK
< Last | Next >
  • Mr. Kaplun clearly had an exceptional understanding of the issue and was able to explain it concisely. I would recommend JustAnswer to anyone. Great service that lives up to its promises! Gary B. Edmond, OK
  • My Expert was fast and seemed to have the answer to my taser question at the tips of her fingers. Communication was excellent. I left feeling confident in her answer. Eric Redwood City, CA
  • I am very pleased with JustAnswer as a place to go for divorce or criminal law knowledge and insight. Michael Wichita, KS
  • PaulMJD helped me with questions I had regarding an urgent legal matter. His answers were excellent. Three H. Houston, TX
  • Anne was extremely helpful. Her information put me in the right direction for action that kept me legal, possible saving me a ton of money in the future. Thank you again, Anne!! Elaine Atlanta, GA
  • It worked great. I had the facts and I presented them to my ex-landlord and she folded and returned my deposit. The 50 bucks I spent with you solved my problem. Tony Apopka, FL
  • Wonderful service, prompt, efficient, and accurate. Couldn't have asked for more. I cannot thank you enough for your help. Mary C. Freshfield, Liverpool, UK
 
 
 

Meet The Experts:

 
 
 
  • Alex Reese

    Lawyer

    Satisfied Customers:

    2588
    Experienced in intellectual property law
< Last | Next >
  • http://ww2.justanswer.com/uploads/sosolid007/2010-08-05_070536_Suitpic.jpg Alex Reese's Avatar

    Alex Reese

    Lawyer

    Satisfied Customers:

    2588
    Experienced in intellectual property law
  • http://ww2.justanswer.com/uploads/scottymacesq/2009-6-10_221523_small.jpg Robert McEwen, Esq.'s Avatar

    Robert McEwen, Esq.

    Lawyer

    Satisfied Customers:

    387
    Licensed Texas General Practice Attorney
  • http://ww2.justanswer.com/uploads/tswartz123/2010-02-08_225658_Tommy.jpg Thomas Swartz's Avatar

    Thomas Swartz

    Lawyer

    Satisfied Customers:

    374
    Twenty one years experience as a lawyer in New York and New Jersey. Former Appellate Law Clerk.
  • http://ww2.justanswer.com/uploads/dkaplun/2009-05-17_173121_headshot_1_2.jpg Dimitry K., Esq.'s Avatar

    Dimitry K., Esq.

    Attorney

    Satisfied Customers:

    371
    I assist my clients with IP questions that arise in their daily course of doing business.
  • http://ww2.justanswer.com/uploads/personwilt/2010-1-10_164828_person1.jpg Wilton A. Person's Avatar

    Wilton A. Person

    Lawyer

    Satisfied Customers:

    339
    MBA, Experienced and Knowledgeable in Intellectual Property Law
  • http://ww2.justanswer.com/uploads/BA/bart0358/2012-1-23_232424_1056.64x64.JPG BartEsq's Avatar

    BartEsq

    Researcher

    Satisfied Customers:

    192
    Juris Doctor
  • http://ww2.justanswer.com/uploads/IP/ipesq/2012-1-9_164431_RetouchPortraitHighResCopy.64x64.jpg ipesq's Avatar

    ipesq

    Lawyer

    Satisfied Customers:

    134
    Specializing in patent prosecution, trademark and copyright registration/enforcement.
 
 
 

Related Intellectual Property Law Questions