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I got an email with demand letter attached from Johnson & Pham, LLP as below. How should I do? Need to respond?
Attached you will find a demand letter with corresponding enclosures which relate to your sale of counterfeit and/or unauthorized sale of Becker Professional Education® Products. Please read these documents thoroughly as action is required on your part.
Becker Educational Development Corp. is aggressively combating rampant piracy of its Becker Professional Education® line of products. You are hereby put ON NOTICE and should immediately CEASE AND DESIST from the sale of Becker Professional Education® Software Products.
Ani S. Garibyan, Esq.
JOHNSON & PHAM, LLP
6355 Topanga Canyon Boulevard, Suite 326
Woodland Hills, California 91367
Tel: ***-***-**** Fax: ***-***-**** *****@********.*** www.johnsonpham.com
Re: Sale of Counterfeit and/or Unauthorized Sale of Becker Professional Education® Products
This firm is counsel to the Software & Information Industry Association (SIIA)1, the principal trade group for the leading software and content publishing companies in the United States, with respect to intellectual property matters. We write on behalf of SIIA member – Becker Educational Development Corp. (hereinafter “Becker”), which is the source of and owner of exclusive distribution rights in and to the Becker Professional Education® line of products, review materials, and services, including but not limited to, Becker Professional Education® 2011 CPA Exam Review. Becker owns all intellectual property rights in and related to the Becker Professional Education®-branded products, review materials and services.
As you are likely aware, Becker expends substantial time, effort and costs in the development, marketing and sales of its Becker Professional Education®-branded software products, and has built up substantial consumer recognition and goodwill in the Becker marks and works. Especially in light of this investment and the resulting goodwill and reputation acquired, Becker considers its intellectual property to be of utmost importance, and cannot and will not allow infringement of its trademarks or copyrights and any other violations of its rights whether under federal or state law or under its license agreements.
We have recently learned that you are engaged in the unlawful offering for sale, sale, distribution and/or otherwise making available of Becker Professional Education®-branded products in violation of the federal Lanham Act (15 U.S.C. §§1114 and 1125), the federal Copyright Act (17 U.S.C. § 106, et seq.) and/or in breach of Becker’s license agreement. Both the Copyright and Lanham Acts afford aggrieved rights owners substantial remedies, including actual or statutory damages, which can range up to or exceeding three times the amount of the owner’s actual damages, as well as costs and attorney’s fees. In addition, the illegal copying, marketing, sale and/or distribution of Becker Professional Education®-branded products or unauthorized sales thereof in disregard of Becker’s license agreement, violates various other federal and state law, including California statutory and common law unfair competition, which remedies can include an accounting and punitive damages, as well as damages for breaching Becker’s license agreement forbidding any resale of Becker products.
We have been authorized to tender the following demand to you on behalf of SIIA and Becker based upon the aforementioned violations:
1) You must immediately cease and desist all unauthorized copying, manufacturing,importing, advertising, marketing, offering for sale, selling and/or distributing activity with respect to any Becker products, including but not limited to Becker Professional Education®-branded products.
2) You must forfeit to this firm all counterfeit or unauthorized copies in your possession,custody or control utilizing any intellectual property owned by Becker, including but not limited to all Becker Professional Education®-branded software products, and delete or otherwise destroy all digital copies which you may have.
3) You must represent and warrant, in the format and manner set forth in the enclosed affidavit, that at no point in the future will you make any unauthorized use of Becker’s intellectual property, including any and all copying, manufacturing, importing, advertising, marketing, offering for sale, selling and/or distributing activity with respect to Becker Professional Education®-branded products.
4) You must pay Nine Hundred Forty-Nine Dollars Eighty-Seven Cents ($949.87) by certified check made payable to Johnson & Pham, LLP - Client Trust Account, to compensate Becker for its investigative and legal costs, as well as the damages sustained by Becker as a result of your infringement and/or unauthorized use of its intellectual property rights.
This is just a cease and desist letter putting you on notice that they believe you are using their materials. If you are using them, then you need to stop. If you are not, then disregard the letter.If you are using them, then stop and wait to see if they sue you. Usually one would not sue for $950 because they are going to pay their attorney that amount to draft a complaint and sue you.Are you using their materials?JACUSTOMER-lcufiz3r- :I already stopped several months ago. Do I need to respond them?BizAttorney :No, you don't need to respond to them unless they serve you with a Summons and a Complaint.JACUSTOMER-lcufiz3r- :What do you mean "serve you with a Summons and a Complaint."? If they do, they will send me official letter or something by certified mail.BizAttorney :No, when they sue you in court, they will personally send someone to hand you a Summons and Complaint.JACUSTOMER-lcufiz3r- :How much possibility they will sue me if I did not respond and pay?BizAttorney :Fairly low, but it is always a possibility. Especially if you have stopped infringing.JACUSTOMER-lcufiz3r- :If they sue me, how much should I pay? maximum $950?BizAttorney :That is up to you, but you can always pay it for a release of any and all claims against you.JACUSTOMER-lcufiz3r- :I mean if they sue me, how much would the court demand me to pay?BizAttorney :It depends, they can go as little as $750 per copyright infringement (each time infringed).JACUSTOMER-lcufiz3r- :OK. Normally how long it would be from now if they decide to sue?BizAttorney :They actually have a couple of years from the date of the last infringing activity. So they have some time.JACUSTOMER-lcufiz3r- :But that time if I moved out to other address, they will not know my new address, this mean they can not hand me a Summons and a Complaint and they can not sue?BizAttorney :Yes, that means it will be harder. There are still ways to find you though.JACUSTOMER-lcufiz3r- :OK, for my case, mostly I can just disregard the letter and the possibiliy that they sue me would be very low as I already stopped several months ago, right?BizAttorney :Correct, judges look at that and rule accordingly. They like to penalize the people who with blatant disregard infringe and don't stop.JACUSTOMER-lcufiz3r- :Thank you so much. Really appreciated. Last question. Even I stopped several months ago, why did they send me this email several month after? They just want to threaten me?BizAttorney :Yes, they are trying to get easy money out of you. It is a common tactic.JACUSTOMER-lcufiz3r- :OK, got you. Thank you.BizAttorney :You are welcome! Have a great night.
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