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Attorney Wayne
Attorney Wayne, Lawyer
Category: Intellectual Property Law
Satisfied Customers: 1506
Experience:  Practicing Law Since 2000
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Johnson and Pham asking for $20,000.00

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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,, 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.

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 5 other Intellectual Property Law Specialists are ready to help you
Customer: replied 3 years 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 which is where I got the products from. What do you suggest

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.

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