Intellectual Property Law

Intellectual Property Law Questions? Ask a Lawyer

Ask a Lawyer,
Get an Answer ASAP!

Intellectual Property Law
This answer was rated:

I was contacted by Johnson and Pham Regarding Selling Otterbox

Case, they say that I...
I was contacted by Johnson and Pham Regarding Selling Otterbox Case, they say that I have sold over 700 Cases from Otterbox, they originally wanted $20K and are now down to $11K on a payment plan, I have purchased cases from many places and I know at least one of the places sells authentic cases for sure.

Additionally I have contacted Ebay and they have informed me that the only way for the exact number and records to be released is if the law firm has the records subpoenaed. When I asked the Law firm where their records are coming from they used a site called Terapeak (which is a marketing website that can be used to set prices competitively and indicates the number of individual items sold for selling purposes) they asked who my suppliers were, I have three and one I have verified is official, the other two are not getting back to me.

Should I pay them the 11k ....do they have anything real going for them..
Show More
Show Less
Ask Your Own Intellectual Property Law Question
Answered in 1 hour by:
8/18/2013
montysimmons
montysimmons, Patent Prosecutor
Category: Intellectual Property Law
Satisfied Customers: 328
Experience: Electrical Engineer, South Carolina Attorney, Member of US Patent Bar
Verified

Please note this is public website and the associated communications will be public.


If you sold counterfeit Otterbox Cases and they can prove it then, yes, you have a problem.


Thus, the questions become:
(1) did you sell counterfeit Otterboxe Cases (OBC),

(2) can they prove it, and

(3) do they have a workable remedy.



(1) Did you sell counterfeit OBCs?
You need to do whatever is necessary to verify the OBCs you have sold are authentic. If you can, they cannot have valid evidence you sold counterfeit OBCs.


(2) Can They Prove you sold Counterfeit OBCs?
If you cannot verify the sources of all the OBCs you have sold and that such OBCs are authentic, then it is possible they have evidence proving you sold counterfeit OBCs.

Under this scenario, I would want to see all such evidence before negotiating a settlement/payment.

If you cannot afford an attorney, and are going to negotiate yourself, then make all communication in written form (letters, e-mails, etc.) and put a statement at the top of all such communications (all pages) that states something like this:

“This is an attempt to compromise a claim or an offer in compromise and subject to federal rule of evidence 408.”

http://www.law.cornell.edu/rules/fre/rule_408



(3) Do they have a workable remedy

If you cannot prove the source of all the OBCs you have sold, and they present evidence that they claim proves you sold counterfeit OBCs, you are in a difficult position. The question becomes then, do they have a workable remedy.


BOTXXXXX XXXXXNE


Unless one simply falls into their office with a fist full of 100 bills, they are going to have to prove their case in court. Expensive to do. If damages are too small the case become nonviable very quickly. Even where the damages are huge, if the Defendant has no assets or hard to reach assets the case becomes risky.



Further, some Defendants are “collection proof”. No one is judgment proof, but they can be collection proof. A collection proof Defendant does not have enough assets to cover the damages. If a Defendant lets it be known they have no income or assets the other side will be much more willing to settle for a lower amount and for payments.

The fact that they dropped from $20k to $11k is a good sign. I bet you can make them drop to Zero if you push your innocence and demand to see their evidence of your guilt and further let it be known you have little or no assets (assuming true).
Ask Your Own Intellectual Property Law Question
Customer reply replied 4 years ago

I dont really have any Assets only 9k in the bank, the 11k was an option that I sent to them for consideration and the accepted it.


 


To be honest I have way more debt than I do cash.


 


Additionally, I know that there is cost associated for them to get the records from ebay, They are filing in California (this is what their letter and offer says), the time I was selling and all their mailings to me was sent to Kentucky, and I have recently relocated to another state. Im sure this could add to their costs, but I dont know if its enough to get them to drop the settlement amount.


 


I have disclosed to them three locations with one being verified by the company as legitimate. The other two, have appeared to disappear, the proof they are offering for the sell of counterfeit cases is an "investigation" where they purchased one of my cases from the site and test it and found it to be counterfeit.


 


I would believe they might have a case however, it seems that even if they sued there really isint much they could take, should I keep trying to get them lower or take the 11k and make the payments. Should I make an offer of a lower payment to them...The cost for me to hire a lawyer would eat away any money they might be able to get in a settlement, and thats my biggest concern.

"I dont really have any Assets only 9k in the bank, the 11k was an option that I sent to them for consideration and the accepted it."

 

If 9k and lots of debt is truly all you have then it looks like you are collection proof.

 

Also consider the following:

 

How are they going to prove that ALL of your cases were counterfeit when they only purchased 1 or even 5 and you had 3 suppliers? You could have sold 1000 cases from 3 different suppliers and perhaps only 10 were "counterfeit".

 

They just happen to purchase 1 that was arguably "counterfeit" according to them; however, such does not prove all the cases you sold were counterfeit, especially where you had three suppliers.

 

 

So they have a proof problem.

 

 

Consider the following hypothetical path:

 

Tell them you are considering bankruptcy and have an appointment with a bankruptcy attorney (by the way, not such a bad idea as smart people plan for bankruptcy many months before filing) but wish to pay your debts if possible.

 

Which means you cannot pay them the 9k amount especially since they have a proof problem and you are confident the vast majority (if not all) of the OBCs you sold were authentic.

 

 

That you have no evidence that you ever sold a counterfeit OBC and that you have seen neither their report nor their evidence and they are asking you to simply take their work for it (that you sold counterfeit goods).

 

 

That you must therefor decline to settle this suit and defend your rights until your money runs out. (will be very quickly - they know this).

 

 

Or, in the alternative, you can offer them $100 to cover the cost for that 1 OBC they claim is counterfeit just to make the issue go away, for a full release to any further related legal claims.

 

 

Now you need to realize they might follow through with a suit but I submit the risk is low, but not zero.

 

 

Lawyers are profit driven and do not like working for free. If you have no assets, in the end, the best they will do is get a judgment that can be discharged in bankruptcy or simply goes away after 10 years. Why would they spend $50,000 just so you will have a judgment on your credit report for 10 years?

 

 

There is no profit in it for them.

montysimmons
montysimmons, Patent Prosecutor
Category: Intellectual Property Law
Satisfied Customers: 328
Experience: Electrical Engineer, South Carolina Attorney, Member of US Patent Bar
Verified
montysimmons and 87 other Intellectual Property Law Specialists are ready to help you
Ask your own question now
Ask montysimmons Your Own Question
montysimmons
montysimmons
montysimmons, Patent Prosecutor
Category: Intellectual Property Law
Satisfied Customers: 328
328 Satisfied Customers
Experience: Electrical Engineer, South Carolina Attorney, Member of US Patent Bar

montysimmons is online now

A new question is answered every 9 seconds

How JustAnswer works:

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

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

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.

EricRedwood City, CA

I am very pleased with JustAnswer as a place to go for divorce or criminal law knowledge and insight.

MichaelWichita, 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!!

ElaineAtlanta, 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.

TonyApopka, 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

< Previous | Next >

Meet the Experts:

Alex Reese

Alex Reese

Lawyer

3,106 satisfied customers

Experienced in intellectual property law

Robert McEwen, Esq.

Robert McEwen, Esq.

Lawyer

859 satisfied customers

Licensed Texas General Practice Attorney

Dimitry K., Esq.

Dimitry K., Esq.

Attorney

561 satisfied customers

I assist my clients with IP questions that arise in their daily course of doing business.

Thomas Swartz

Thomas Swartz

Lawyer

461 satisfied customers

Twenty one years experience as a lawyer in New York and New Jersey. Former Appellate Law Clerk.

Ely

Ely

Counselor at Law

455 satisfied customers

Licensed attorney in private practice.

Wilton A. Person

Wilton A. Person

Lawyer

352 satisfied customers

MBA, Experienced and Knowledgeable in Intellectual Property Law

BartEsq

BartEsq

Researcher

192 satisfied customers

Juris Doctor

< Previous | Next >

Related Intellectual Property Law Questions
I have an educational business and I want to opyright my
I have an educational business and I want to opyright my educational material. Can I copyright it under the business name or does it have to be my name? … read more
Lori
Lori
Juris Doctor
318 satisfied customers
I want to know about a clause in a contract I have with a
I want to know about a clause in a contract I have with a publisher. … read more
Robert McEwen, Esq.
Robert McEwen, Esq.
Lawyer
Doctoral Degree
859 satisfied customers
What are the limitations on reprinting material for
What are the limitations on reprinting material for educational purposes from a book that is permanently out of print? … read more
Robert McEwen, Esq.
Robert McEwen, Esq.
Lawyer
Doctoral Degree
859 satisfied customers
This falls more under general internet law, but I could not
Hi! This falls more under general internet law, but I could not see any such category. At any rate, I have a question about the practice of web scraping and taking screenshots. Some sites, usually peo… read more
Ely
Ely
Counselor at Law
Juris Doctor
455 satisfied customers
If I have an idea for a type of social media platform or
If I have an idea for a type of social media platform or online marketplace that I'd like to create, and I hire someone to write the code, is there any way I can prevent that person from copyrighting … read more
Lori
Lori
Juris Doctor
318 satisfied customers
How do I register/apply for U.S. Domestic and International
How do I register/apply for U.S. Domestic and International copyrights and movie rights for my sci-fi book?… read more
Lori
Lori
Juris Doctor
318 satisfied customers
I am interested in opening a restaurant called JackStraw
I am interested in opening a restaurant called JackStraw Kitchen in WA, there is a TM of Jack Straws in FL offering restaurant services, would I infringe? … read more
Roy Hadavi
Roy Hadavi
Attorney
Juris Doctorate
1,015 satisfied customers
I am an artist that entered a contract with a company. I was
I am an artist that entered a contract with a company . I was using the soundwave tattoo technology and was a trained artist to provide services to clients . A client purchased and brought a design fr… read more
INFOLAWYER
INFOLAWYER
Partner
Doctoral Degree
56,334 satisfied customers
I have a contract in which I have irrevocable rights to use
I have a contract in which I have irrevocable rights to use the 20% of an IP that an ex-teammate created, in conjunction with my 80%, such that I can continue the project myself as the complete and un… read more
Lori
Lori
Juris Doctor
318 satisfied customers
I have a sports apparel company that makes merchandise of
I have a sports apparel company that makes merchandise of defunct teams. I would like to make merchandise of some ABA basketball teams, however the NBA has trademarks registered on USPTO for all of th… read more
PaulmoJD
PaulmoJD
Attorney At Law
Doctoral Degree
106 satisfied customers
I am developing a robotics invention that we need a small
I am developing a robotics invention that we need a small graphics processor. My engineer wants to use a Raspberry Pi, but I'm concerned that is marketed by some British company or was originated by t… read more
PaulmoJD
PaulmoJD
Attorney At Law
Doctoral Degree
106 satisfied customers
Im so glad that I found you! Ok- so here is my question. I
Hello! Im so glad that I found you! Ok- so here is my question. I have been using the brand Core Embodiment since 2013. I have proof in old flyers, a video I made in 2014 that is on youtube, my biz ca… read more
Robert McEwen, Esq.
Robert McEwen, Esq.
Lawyer
Doctoral Degree
859 satisfied customers
I have created an app that uses the Fitbit API. The name of
I have created an app that uses the Fitbit API. The name of my website, incorporates the word "fitbit" in the name of the website. Fitbit distributes the API for others to utilize toward the creation … read more
PaulmoJD
PaulmoJD
Attorney At Law
Doctoral Degree
106 satisfied customers
I have another question about publishing. I have a german
Good morning, I have another question about publishing. I have a german songwriter who is excited to come on board my project and has granted me permission to feature his song on my website, and let m… read more
PaulmoJD
PaulmoJD
Attorney At Law
Doctoral Degree
106 satisfied customers
I would like to know if someone can rescind on a license
I would like to know if someone can rescind on a license contract dealing with Intellectual Property. The other party is trying to back out of this contract that granted me "irrevocable rights to use"… read more
INFOLAWYER
INFOLAWYER
Partner
Doctoral Degree
56,334 satisfied customers
What are the rules when it comes to a band covering another
What are the rules when it comes to a band covering another songwriter's song live. If a band wants to gig with a roster of other artist's music and make money off of the gigs, are performance royalti… read more
PaulmoJD
PaulmoJD
Attorney At Law
Doctoral Degree
106 satisfied customers
I just started working as a sole proprietor (consulting &
I just started working as a sole proprietor (consulting & facilitation) and need someone to review and help me adapt the contract my client proposed … read more
Lori
Lori
Juris Doctor
318 satisfied customers
I downloaded a comp image to use for a mock up design for a
Hi there. I downloaded a comp image to use for a mock up design for a client. And put it on my online portfolio. Now I got an email stating I did copyright infringment even though the image has a wate… read more
Lori
Lori
Juris Doctor
318 satisfied customers

DISCLAIMER: Answers from Experts on JustAnswer are not substitutes for the advice of an attorney. JustAnswer is a public forum and questions and responses are not private or confidential or protected by the attorney-client privilege. The Expert above is not your attorney, and the response above is not legal advice. You should not read this response to propose specific action or address specific circumstances, but only to give you a sense of general principles of law that might affect the situation you describe. Application of these general principles to particular circumstances must be done by a lawyer who has spoken with you in confidence, learned all relevant information, and explored various options. Before acting on these general principles, you should hire a lawyer licensed to practice law in the jurisdiction to which your question pertains.

The responses above are from individual Experts, not JustAnswer. The site and services are provided “as is”. To view the verified credential of an Expert, click on the “Verified” symbol in the Expert’s profile. This site is not for emergency questions which should be directed immediately by telephone or in-person to qualified professionals. Please carefully read the Terms of Service (last updated February 8, 2012).

DISCLAIMER: Answers from Experts on JustAnswer are not substitutes for the advice of an attorney. JustAnswer is a public forum and questions and responses are not private or confidential or protected by the attorney-client privilege. The Expert above is not your attorney, and the response above is not legal advice. You should not read this response to propose specific action or address specific circumstances, but only to give you a sense of general principles of law that might affect the situation you describe. Application of these general principles to particular circumstances must be done by a lawyer who has spoken with you in confidence, learned all relevant information, and explored various options. Before acting on these general principles, you should hire a lawyer licensed to practice law in the jurisdiction to which your question pertains.

The responses above are from individual Experts, not JustAnswer. The site and services are provided “as is”. To view the verified credential of an Expert, click on the “Verified” symbol in the Expert’s profile. This site is not for emergency questions which should be directed immediately by telephone or in-person to qualified professionals. Please carefully read the Terms of Service (last updated February 8, 2012).

Show MoreShow Less

Ask Your Question

x