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BH
BH, Lawyer
Category: Intellectual Property Law
Satisfied Customers: 313
Experience:  IP and Entertainment Attorney
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Recently sold otterbox case on ebay and now clement & ho is

Customer Question

recently sold otterbox case on ebay and now clement & ho is sending me letter asking me to reply in 5 days. please help
Submitted: 2 years ago.
Category: Intellectual Property Law
Expert:  BH replied 2 years ago.
What is the letter claiming? Is it that the item was counterfeit?
Customer: replied 2 years ago.
yes. they said the item is counterfeit. they also claim they have purchased the item from my girlfriends ebay account and checked it to be fake. the letter state to " cease and desist " to both me and my girlfriend. its my paypal and her ebay account. there are no money amount nor anything metion. just talk to them before may 10
Expert:  BH replied 2 years ago.
You can either respond or choose not to respond, in which case they may follow up with another letter possibly demanding a settlement amount or they could move forward with filing a legal action. The question is, are the cases in fact counterfeit? If not, and if you can prove that they are real then you can respond with that fact and your evidence of authenticity. If you do not know if they are authentic you can respond to them stating that to the best of your knowledge and belief the cases are authentic and ask them to give you supporting evidence as to their claim that they are in fact counterfeit. If they have supporting evidence that would allow them to easily win a case, you might want to attempt a settlement. Remember that it is very expensive to litigate something like this and the only way that they can force you to pay them is if they prove their case in court. If the amount that they are likely to get in damages from the court and/or you (i.e., if you do not have income or assets to be able to pay the judgment) is less than the amount that they would pay in attorney's fees to go forward with the case, then it would be unlikely that they would proceed. Alternatively, you can try to negotiate a settlement with them but I suggest that you hire an attorney to do so. If you decide to try to settle with them yourself, make sure that you add the following sentence to your communications with them: “This is an attempt to compromise a claim or an offer in compromise and subject to federal rule of evidence 408.”
Customer: replied 2 years ago.
the issue is i had purchased lot of things in flee markets. and local sales. and resale thing on ebay. my personal had 900+ feedback 100% and my girlfriend just started with 50+ feedbacks. so i told her i would help and bring her points up by selling it on her account. little to i know ebay suspended both our account because same ip same address. it could be same person selling fakes " ebays words" after the day ebay shut us down. we got the idea this is fake case. and we though we are done with it. untill clement & ho send us a letter.we dont know what to do. we sold about 60 case and made 400$ in profits. these are our real information. if we deside to hide and ignore it what will happen. this address currently listed under paypal and ebay are apartment. we can do is move out. i'm in nowhere to settle with money as i have no money.
Customer: replied 2 years ago.
my personal ebay account had 900+ feedback with 100% rating.
Expert:  BH replied 2 years ago.
If you sold 60 cases and they only bought one then they only have proof that one case is counterfeit (assuming that it is). You can respond as I suggested stating that to your knowledge and belief the cases were all authentic and demanding proof. If they respond with proof on the one case, you can then again respond stating that evidence is only for one case and offer them a settlement of $100 (or whatever amount they sell one case for at retail). You can tell them that you are considering filing for bankruptcy and are consulting with a bankruptcy attorney. That way they will know that you have little to no money to settle. Eventually they will probably settle for a small amount or drop it all together. You can choose to ignore it and they may continue to send letters. It is unlikely, but not entirely impossible, that they would file a lawsuit given that you have no assets and could just file for bankruptcy.
Expert:  BH replied 2 years ago.
As a side note, this law firm sends these letters frequently to those in your position and tries to obtain settlements. Your best bet is to play it tough, demand evidence and if need be, eventually settle for a negligible amount (ensuring that they release you from all claims).
Customer: replied 2 years ago.
i am still shaken that this law firm is commin after us, i have no idea how i would start a letter to them. how and what should i put in the letter? i have never been or ask legal advise before. could you give me a few examples.
Expert:  BH replied 2 years ago.
Unfortunately this service is for information purposes only and there is no attorney-client relationship created. I cannot draft the letter for you but I did provide you some suggestions above. You can keep the letter short and to the point. You can simply state that "to the best of your knowledge and belief the items that you sold were authentic" and ask them to "please provide you with evidence to substantiate their claim." If you are still unsure, you can hire an attorney or try to find a pro bono attorney through a local legal aid society or law school.
Expert:  BH replied 2 years ago.
Please let me know if you need any additional information. If you are satisfied with my answer please rate it so that I may be credited for my time.
Customer: replied 2 years ago.
This reason is that. They claim in letter they have purchased the item from my ebay store and checked out to be counterfeit. They have evidence on me. I have no money but a few hundred in my bank account. I may choose to ignore as I have no choice . What is recommend I do? I have no assets
Expert:  BH replied 2 years ago.
My recommendation remains the same as I have already stated above. They only have evidence as to the one case, not as to all of the cases. You can choose to ignore it but they will likely just continue to send letters. You can wait and choose to respond to a future letter or not to respond at all. If you tell them that you are considering filing for bankruptcy they will know that you do not have any assets and that it is not worth it to pursue you in a legal action.
Please note that many people have encountered this same problem, even from this same company and the information that I have provided is consistent with others. Please see the links below.
http://www.justanswer.com/intellectual-property-law/7mdoo-minor-17-i-bought-few-otterbox-cases-mall.html
http://www.justanswer.com/intellectual-property-law/7y0hl-contacted-johnson-pham-regarding-selling-otterbox.html
http://www.justanswer.com/intellectual-property-law/7zmae-otter-box-possible-sue-counterfeit-need-assistance.html

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