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Delta-Lawyer, Patent Prosecutor
Category: Intellectual Property Law
Satisfied Customers: 3546
Experience:  Patent Bar Certified
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I have been contacted by an attorney on behalf of Otter

Customer Question

I have been contacted by an attorney on behalf of Otter Products with regards ***** ***** or so OtterBox sales via ebay over the past few months. They are claiming the items are counterfeit (I had absolutely no idea), and want to discuss settlement before 'filing suit in federal court'. Would like to know my options here: what is the best strategy, how much money can they actually demand, etc. Any help is much appreciated!
Submitted: 1 year ago.
Category: Intellectual Property Law
Customer: replied 1 year ago.
I added the PDF letter, not sure if this adds any value.
Expert:  Delta-Lawyer replied 1 year ago.

I hope this message finds you well, present circumstances excluded. I am a licensed intellectual property attorney with over a decade of criminal law experience. It is a pleasure to assist you today.

Unfortunately, even though you did not realize that they are counterfeit, you may end up owing some amount of money to the company. That said, you need to get from them more information before you even think about paying any amount of money to them.

You need to ask them when you speak with them:

- How do they know they are counterfeit;

- Have they actually gone after the counterfeiting entity;

- Would they be willing to waive any and all legal rights they may or may not have towards you if you work with them as a witness in a suit against the actual counterfeiting entity;

- Ask them how they got any numbers relative to what they believe you actually sold;

- Ask them why they did not intervene.

You can and should contact them in writing via certified mail and tell them you are willing to speak with them about this issue. In the letter, you need to state that you at no time knew or had reason to believe the items were counterfeit that you were selling. Tell them you will cease and desist from any future sales of them items. Tell them you are willing to work with them to prosecute the actual producer of counterfeit items, to the extent possible.

By sending this notice certified, you place them on legal notice of your position. If you are sued, this will be a valuable piece of evidence for you.

As to what you may have to pay back, I would not pay them more than the total of what you made in gross on the ebay sales. They are not obligated to receive any more than that amount. You can then turn around and sue your supplier for knowingly selling you counterfeit items. This is called seeking indemnification.

Let me know if you have any other questions or comments.

Please also rate my answer positively (three or more stars) as well.

Best wishes going forward!

Expert:  Delta-Lawyer replied 1 year ago.

Just checking on you to see if you had any additional questions or comments. I want you to be as comfortable as possible as you move forward. Thanks

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