21 replies to this topic

[mint7482]

Can you get sued for listing a brand name item? A lawyer is saying that he will take legal action in 21 days because I listed a brand name hair care product up for sale. I never sold any of their products on my website, but I put their product up for sale for two months. I took their product off my website two days after the letter but the lawyer is still harassing me. At first I thought it was a con artist, but I check and its a major US law firm. Can they sue without giving any warning? I have my own LLC, will they come after me or my company? I can't afford a lawyer. How do you get free legal aid? Thanks for your ideas and help.

Edited by mint7482, 02 August 2007, 05:34.

[toyicebear]

mint7482, on Aug 2 2007, 05:31 AM, said:

Can you get sued for listing a brand name item? A lawyer is saying that he will take legal action in 21 days because I listed a brand name hair care product up for sale. I never sold any of their products on my website, but I put their product up for sale for two months. I took their product off my website two days after the letter but the lawyer is still harassing me. At first I thought it was a con artist, but I check and its a major US law firm. Can they sue without giving any warning? I have my own LLC, will they come after me or my company? I can't afford a lawyer. How do you get free legal aid? Thanks for your ideas and help.

If you were misrepresenting their brand name or atempting to sell a "fake" or "copy" version of their products, then they might continue come after you and your company.

[crash3903]

mint7482, on Aug 2 2007, 06:31 AM, said:

Can you get sued for listing a brand name item? A lawyer is saying that he will take legal action in 21 days because I listed a brand name hair care product up for sale. I never sold any of their products on my website, but I put their product up for sale for two months. I took their product off my website two days after the letter but the lawyer is still harassing me. At first I thought it was a con artist, but I check and its a major US law firm. Can they sue without giving any warning? I have my own LLC, will they come after me or my company? I can't afford a lawyer. How do you get free legal aid? Thanks for your ideas and help.

The first question I am asking is where did you get their product from to sell?

Answer this and we can go from there

[mint7482]

crash3903, on Aug 2 2007, 03:12 AM, said:

The first question I am asking is where did you get their product from to sell?

Answer this and we can go from there

Thanks for your reply. Its not a fake or copy, its the real thing. I got it from a store nearby.

[mint7482]

toyicebear, on Aug 2 2007, 03:06 AM, said:

If you were misrepresenting their brand name or atempting to sell a "fake" or "copy" version of their products, then they might continue come after you and your company.

Thank you for your reply. I would never misrepresent a brand name or sell fake copied products to my customers. After all, its the customers who help me payoff all my college loans. The strange thing is that I never sold any of their products on the website; I just put them up for sale (for 2 months only). Does that lawyer have the legal right to harass me? Does paypal have the legal right to give my home address to a lawyer? The only way that the lawyer could have gotten my home address is by paypal.

[redbone]

I wouldn't worry too much about it. If they're going to pursue legal action for something as petty as this, and you haven't even made any sales on said item - well, it would be like beating a dead horse.

Since you're an LLC, i'm sure they can get your address thru the state.

I would wait and see what happens and see if you ever get served (which I seriously doubt).

[mint7482]

redbone, on Aug 2 2007, 02:24 PM, said:

I wouldn't worry too much about it. If they're going to pursue legal action for something as petty as this, and you haven't even made any sales on said item - well, it would be like beating a dead horse.

Since you're an LLC, i'm sure they can get your address thru the state.

I would wait and see what happens and see if you ever get served (which I seriously doubt).

Thank you for the reply. I am loosing a lot of sleep over this problem. I checked on the law firm, its ranked in the top 500 law firms in the US. Of all the problems going on in the world, why would a major US law firm attack my small Oscommerce webstore? If I do get served, I wouldn't even be able to afford a plane ticket to California. Best regards.

[crash3903]

mint7482, on Aug 2 2007, 04:24 PM, said:

Thanks for your reply. Its not a fake or copy, its the real thing. I got it from a store nearby.

The others are correct - those lawyers should be saying to you something like this "You are not allowed to sell our product - do it again and we will take action against you"

Granted if you are not a reseller of their product then it is a risk to resell items you bought from a store, but I would argue (Depending on how you advertised it) that there is no difference selling unwanted items on ebay to selling them on your store.

You may also have a case with paypal for releasing your info - I doubt they have wiythout a court order though - Where is your domain registered? If you have registered it at your home address then that is where they have found your address from

What would I do? Write back saying "I am not selling your product at the moment but I would like to - Please advise the best route to becoming an authorised reseller of their product"

If they are genuinely looking for compensation then they have to prove that there has been a loss of profit/business through your activities. If you are buying the product then surely they are getting the sales revenue so where is the loss of profit

Forget it...I would ring the office where the lawyer apparently sits and ask to speak with him/her directly - He/She has to speak with you, they can't say no - After all this may be a spoof letter head - anyone can make one like they can a phishing site. I have spent my life in and out of criminal and civil court (Not as defendant ) so this would not worry me in the slightest. If they are goping to take action against you they will ask for a settlement out of court - Defend it as they are wasting theirs, yours and most importantly the courts time for a few cents/pennies (They will have to prove the loss of business/profit)

Good luck

Edited by crash3903, 03 August 2007, 08:32.

[mint7482]

Thank you Mark and the others for helping me with this problem. There are so many wonderful people on this forum. All help is sincerely appreciated. Its a real law firm. I contacted the California Bar several times to make sure, and I used the telephone number that I got from the California Bar. I called the lawyer twice but its just an answering machine and there was no reply. If you have time, please look over the letter and let me know if I did anything wrong. Once again, thanks for your help. Here is parts of the letter that was sent to me:

It has come to XXXX attention that you have been offering for sale numerous products that bear the XXXX trademark on the Internet (I only offered one type of their many products). While XXXX respects the first sale doctrine, we are informed and believe that the products you are offering for sale on the Internet do not implicate the first sale doctrine. As such, either the XXXX products you are selling are counterfeit (I have proof that the products I put up on the internet are not counterfeit); or are being sold in violation of an express provision of a distribution agreement with XXXX (there was no distribution agreement printed on the box so I had no way of knowing that they didn't want there stuff on the internet...after they complained I took their stuff off my website). In either case you may be liable under state contract law, federal trademark law or international law for these improper online sales (their item never sold on my website and I have paypal records as proof that their item never sold). Furthermore, you may be liable for attorney fees and punitive damages depending on the nature of your use. This liability can exceed $100,000.

Edited by mint7482, 04 August 2007, 02:54.

[crash3903]

mint7482, on Aug 4 2007, 03:51 AM, said:

In either case you may be liable under state contract law, federal trademark law or international law for these improper online sales (their item never sold on my website and I have paypal records as proof that their item never sold). Furthermore, you may be liable for attorney fees and punitive damages depending on the nature of your use. This liability can exceed $100,000.

You have proof that they are not counterfeit and youhave "on the balance of probability" proof of no sales. If they have an issue then they should take it up with the company where you bought - see below

Quote

or are being sold in violation of an express provision of a distribution agreement with XXXX

Like I said above ask them how you can become an authorised distributor

[creativemobilestore]

I've had almost the same thing happen with an unnamed air-purifier company. I acquired several of them from part of a liquidation auction, had proof I bought them, and everything was legit on my end. I got the same type of emails after selling several of them online. After research I found I was selling them for cheaper than wholesale, and in their wholesale agreement it states you're not allowed to sell them online (they are the only ones that sell them online). The problem with this is that I am not a dealer, I didn't get them from them, and never signed anything so they couldn't do anything and I started selling them again. They were basically trying to scare people into not selling them. What is stopping someone from buying them retail and selling them for a dollar and losing money, I'm not selling wholesale. I actually contacted a lawyer about it and he said it was very laughable, but you might not be in the same situation so don't take my advice. I do know that if I was selling them on ebay for example, ebay would have pulled the auction due to liability and all their verified owner rights policies.

Edited by creativemobilestore, 04 August 2007, 16:26.

[mint7482]

Thanks for the information. Its good to know that the lawyer you contacted found the complaint to be unreasonable. I wish these companies would print "this item is not for resale" on their products if they want to keep it off the Internet. If we have no way of knowing that a company objects to selling their items on the Internet, how can we be held responsible for listing there item. Most normal companies don't mind if someone sells their products on the internet.

[Naughtica]

creativemobilestore, on Aug 4 2007, 10:25 AM, said:

They were basically trying to scare people into not selling them.

That is what I think it is more than anything. Those lawyers have to try to justify their salary some how.

[koalaphil]

mint7482, on Aug 2 2007, 03:31 PM, said:

Can you get sued for listing a brand name item? A lawyer is saying that he will take legal action in 21 days because I listed a brand name hair care product up for sale. I never sold any of their products on my website, but I put their product up for sale for two months. I took their product off my website two days after the letter but the lawyer is still harassing me. At first I thought it was a con artist, but I check and its a major US law firm. Can they sue without giving any warning? I have my own LLC, will they come after me or my company? I can't afford a lawyer. How do you get free legal aid? Thanks for your ideas and help.

This is an interesting one, it has worldwide problematics, however as i've stated elsewhere here once you buy a product it becomes second hand, you may resell it however DO NOT call it BRAND NEW or BNIB say Like New, As New, close to new etc you should have no problem, even for companies that have exclusive rights, But on other hand companies Like Avon, Its selling representatives are prevented by a clause in their agreement to sell, Sell any Avon Product online, in a shop, or stall, or to know a family/friend who is selling Avon products. That rep risks being terminated by Avon. Then she/he can sell all the avon she likes online as she/he no longer is connected to the Avon Company. Be careful if you or your wife family member is connected to the company you are selling, It may not have been PayPal at all, think it could have been the guy you bought it from.

[Vger]

This is a storm in a teacup. My advice is given freely and on an "as is" basis, but based on my knowledge of UK law. If you follow my advice and it goes pear-shaped the responsibility is yours. Well ...that's my legal back covered.

You have to remember that the bigger a law firm in the States is it also means that they have a large number of junior, untrained, legal repesentatives trying to make some commission.

Your company is an LLC, so any liability you have is limited to the value of the company - which is probably zilch, or close to it. At least in the UK an LLC's (or the UK equivelant) liability is limited to its share capital (whether a public or private LLC).

They cannot pursue you personally as the LLC is a legal entity in its own right.

If they have a trade agreement with someone else not to sell their products to someone else (your company) for secondary resale then their legal recourse is with that company and not with you.

Just write to them one more time, and mark the subject line of the letter "Without Prejudice". Reiterate that you have withdrawn the product from sale, as a goodwill gesture (do not admit that they were legally entitled to get you to withdraw it from sale). Advise them that this is the limit of what you are prepared to do. Further advise them that the value of your Liability as an LLC is $xxx (insert here your Limited Liability capital), and if they decide to pursue the matter in court then that will be the limit of monies which you can be pursued for.

Finally, tell them that you will not engage in any futher correspondence with them on this subject outside of a courtroom.

If they write again, still going over the same ground just ignore them. Only respond if they actually issue a court summons.

Vger

[cannuck1964]

Myself,

I would ignore them. I would make sure people understood that the item was not sold as a New item and did not have any warranties attached, and continue doing as you are. No one has the right to tell you can not resell an item if you legally purchased it. If the item says Not for Resale, that too is not a legal justification to not sell it. If you legally own it and want to sell it, and are not breaking any laws in doing so.


I have seen many lawyer letters, I see them for what they are, something to intimidate people, and not something which is legally correct. Anyone can send out letters, it is a totally different matter to actually bring this to action and then to win. I would return the letter to the lawyer written on the it, Not interested.

You see issues with the resale of tickets for sports games on eBay. They have pushed the counts to give over the people's names who have resold their tickets. These ticket sales have specific conditions attached to them, while they can not breach the conditions of the sale, they can do anything else they want with them, simply by giving them away to friends.

The justification is that this is considered scalping of tickets, which is illegal (buying low selling high and hording of tickets). The resale of them is prohibited by state laws, but I bet you will have a hard time finding other items which are handled in this manor.

Do not let people bully you around simply because they say they are lawyers and sent you a letter..

Peter M

[desiredin]

mint7482, on Aug 2 2007, 03:24 PM, said:

Thanks for your reply. Its not a fake or copy, its the real thing. I got it from a store nearby.

I have run into the exact same problem as you before with certain products that were "exclusive" to specific companies. Purchased at resale, and re-sold them to my customers for the price I paid. I like to offer my customers a variety and I'll do this for an item that my customers really want.

When certain products have a very limited distribution, companies tend to think "conterfeit" right from the word go. They don't expect it was obtained through "authorized resellers" to begin with.

I have found it is just a matter of contacting the lawyer and/or the company and let them know. Hopefully you kept your receipts for tax purposes so it can be offered as proof?

On the two occasions this has happened (lawyers contacting me about products), once I had made clear that the products are geniune (1 product was actually purchased directly from their online retail store, so they had records of it), nothing more was said. With exception to one product. After everything was cool, they politely asked me to remove a demo video of their product form my listing, as it was under liscense from a different company so fair use couldn't come into play there. But wow, the request was a hell of a lot more polite than their initial e-mails.

But when push comes to shove, if they would have persisted, I would have bent over. Cost a lot more to go to court than it would to just stop selling. With luck as well, you may be able to return the products to where you purchased them.

[Azim]

Well i think you did it wrong way.
When u start a business and u get it legal and u buy products from a manufacturer or distributor/wholesaler.
And then you can use that brand name on ur site to sell any item. If you buy it from a store and sell it online, u r going the ilagal way.
So tip is buy from manufacturer or wholesaler with ur tax id so no more hassles. wholesalers must be authorized distributors of the manufacturers.

Good luck

[MrPhil]

When you purchased products at retail, and then turned around and resold them at retail, you are working on the "gray" market. While that, in and of itself, usually isn't illegal, it's understandable that manufacturers get upset about it. Most products have very specific guidelines for how they are to be displayed, handled, sold, serviced, etc., and manufacturers (who have poured a lot of money into promotions and advertising) get antsy about losing control over how their product is perceived by the buying public. So, they will go after you by whatever means they think they can to get you to stop, including accusations of counterfeiting or unauthorized use of their trademarks. For all you know, the accusation of counterfeiting could just be a form letter they send out to all unauthorized retailers, but they're on pretty firm legal ground with respect to trademark protection (which is required by patent and trademark law). They're probably on shakier ground in trying to enforce marketing agreements (signed by their wholesalers and retailers) against you, but why shouldn't they try? -- they probably can afford more and better lawyers than you can. Finally, their attitude towards you may be very different if you are (improperly) presenting yourself as a regular, authorized seller of their products, than if you are selling onesies-twosies odd lots or whatever, regardless of whether you say the products are "new" or merely "like new".

By the way, I am not a lawyer. I merely play one on TV. My legal advice is probably worth exactly what you paid for it.

[jmscoma]

I am dropshipping brandname laptops and cell phones, along with other electronics. My suppliers are from China and it is put to me as brandnames. Does that mean that I have to get permission to sell said merchandise on my website?