Forum

Notice from lawyer
 

Got letter saying i am under investigation for selling *big copyrighted company* products on EB.
Says they have commenced preparation of court proceedings which will seek injuction, payment of damages, legal costs.

Only way to avoid claim being chased up is if i submit to a consent order granting the *big copyrighted company* the relief it wants.

Letters says I should expect to get service of the proceedings in 1 weeks time.

Please any help would be appriciated, i've searched the forum and seen a few similar threads, is this nothing to worry about or something to worry about a lot?

Not a stealth account but has been treated as such in terms of logging in with mobile IP's never the same IP twice. I'm thinking along the lines of my ebay got hacked
FROM UK btw
Thankyou for your time in reading.

Re: Notice from lawyer
 

If the account is in your name, the best thing to do is go to a lawyer and have him prepare a cease and desist letter for you. Do NOT sign a cease and desist letter that was sent to you by the other party and do NOT try to write one on your own. The cost for the lawyer will be way lower than the cost when you do it all by yourself and mess it up in the end.

Re: Notice from lawyer
 

THanks for the advice. If i get a cease and desist letter drafter from my lawyer, is this likely to stop me from having to pay damages? Not sure how it all works.
And is it advised to get a specialised lawyer or can any lawyer do the job?

Also the fact i got 'hacked' won't hold?

Thanks

Re: Notice from lawyer
 

No the "Hacked" thing will probably not work. There are some tricks that might work, but can't go into detail here.

You don't need a specialized lawyer, any lawyer should be able to help you in that matter. Once you signed the cease and desist letter you'll have to pay for your own lawyers fee and in most cases for the opposites lawyers fee.

However, get a lawyer for this as fast as possible. I know paying lawyers fees sucks, but it's way cheaper than a temporary restraining order or even taking it to court.

I am a German lawyer, so I can't say 100% how things work in the UK. However systems are pretty similar when it comes to IP laws. Everything I said above is NOT a legal advise. I advise you to get a lawyer in the UK and talk things through. In my experience this is the cheapest way to get out of things like this. GL :thumb:

Re: Notice from lawyer
 

You don't understand how much I appreciate you commenting and helping me on this matter. Could you possibly PM me with another means of contact so that we could dicuss the 'trick'. i tried to PM you but it did not allow me.

Once again I highly appreciate your time.

Re: Notice from lawyer
 

Sadly the I got hacked will not work.

Legal sdvise with a Uk authorised agent is your best option. Do not ignore this notice. , It is is extremly serious and has repercussions for your future.

Thete are no UK lawyers here. You need to take legal advixe NOW.. dachilla’s advice is most helpful.

Best wishes aas you deal with this matter.

:typing::

Re: Notice from lawyer
 

Thankyou, im currently trying to find a lawyer now. Unforunately its a saturday and i need to respond by wednesday next week

Re: Notice from lawyer
 

Donald the Askpin guy is a Lawyer, ask him[emoji19]

Re: Notice from lawyer
 

Check your facts there.
]

:typing:


.

Re: Notice from lawyer
 

I'm not a lawyer.

However...

Sounds like they're on a fishing expedition. Wait until you get the letter, if you do, and go from there. Don't sign anything. Don't admit anything. Don't say anything. They may be hoping you panic and throw money at them to make it go away.

Is their complaint correct? Did you do what they said you did? How much money is involved?

Re: Notice from lawyer
 

He already got a letter, and that's not a fishing expedition.

@op Do not wait for a letter from the court. This is a typical scenario where they want you to sign a cease and desist. If you sold stuff that you'd better not sell (and i assume so) then get a lawyer who writes the cease and desist for you. Don't write it on your own, get a professional and let him do it.

Do not sign anything you got from the opposite party, do not call them. Do not panic.

Re: Notice from lawyer
 

Attorneys send threatening letters all the time.

Letters are cheap, they cost $.50 to mail + the printing cost, and they're pre-written, they just fill in the name and address, a clerk does hundreds of them a day and they don't require even 1 minute of real lawyer time.

My lawyer used to charge me $50 to send a threatening letter. Nothing, really.

They're cheap and effective, they scare the person being threatened who has never dealt with anything much legal and who doesn't know any better.

Filing a court action costs time and money - not a lot, but some. You can file for around $100-150 depending on the jurisdiction. Once again, a clerk handles it, and it's really cheap if it gets the result you want.

The goal is to get a maximum result with the minimum cost.

Following through on an action, and actually going to court - now THAT costs quite a bit. That's reserved for really serious matters.

A letter doesn't mean anything is going to happen. They want this guy to stop what he's doing. They want to scare him straight.

Right now this is a fishing expedition.

Re: Notice from lawyer
 

You don't know the case in detail, so how can you advice him to just try and sit it out?

I understand that threatening other sellers with a letter from a lawyer is pretty common practice and that it's not a good idea to overreact.

However, if you pay a lawyer 50 bucks for a threatening letter, he might as well spend the 50 bucks and let a professional have a look at the letter he got. Who knows, maybe the letter isn't from a small green-eyed ebay competitor but from Apple, SpaceX or some other bigass company who of course will take things to court in the blink of an eye and then you're in a world of ****.

:thumb:

Re: Notice from lawyer
 

What dallis said about lawyers sending out tons of letter is true, I had one letter sent from Johnson and Pham for selling my store purchased item on ebay (on my 1st real account). Did a lot of research and just ignored it. All that being said, the OP does need a lawyer.

Re: Notice from lawyer
 

*big copyrighted company* products pretty much sums it up :)

Re: Notice from lawyer
 

It's all a matter of scale. Apple isn't going to take somebody to court over $50 of infringing product.

He should immediately stop doing whatever it was that ticked them off. That's really their goal.

And if the OP is worried he/she should talk to an attorney.

Re: Notice from lawyer
 

Johnson and Pham is famous for mass C&D mailing crap to people.

I got a couple of those before and just threw them in the trash and nothing became of it. Of course, I don't recommend you do that will all communications. Best to seek advise of a professional first.

Re: Notice from lawyer
 

Love the contradictions in the statement hah

Re: Notice from lawyer
 

How on earth can they have started the preparation of court proceedings - you haven't been charged with anything yet!

This would be a civil matter, there won't be any 'charges' as such. 'Charges' generally refer to criminal complaints brought by a state or federal prosecutor.

In this case the rights holder would allege damages in a civil action, ie a lawsuit, and a judge would decide if the complainant deserves redress. There's no potential jail time in this kind of a suit, unless an officer of the court refers it to a state's attorney for possible prosecution. In that case the state's attorney would decide if the complaint had merit, and whether or not to prosecute.

Re: Notice from lawyer
 

Don't tell them anything, don't admit to anything. If they start to do something then figure it out. Right now you just have a letter, anyone can send them and say anything.

For them to really be doing something to you, they need to have bought something from you to confirm it's not authentic.

Check your sales and see if you think that might be possible.

The biggest thing to keep in mind here is what do they want?

And also if they were going to do something, why on earth would they tell you about it first.

Re: Notice from lawyer
 

Unless it was a typo, the poster said in his first paragrapgh the letter said xyz. But further down in the pist, he wrote letters advice xyz info.

Are there one or rwo letters? Hmmm.

Rubbish bins fill up so quickly.

:deadhorse:

Re: Notice from lawyer
 

In the UK there IS a difference between civil and criminal complaints.

And in the UK a judge still decides if there is any penalty, and if so what.

Re: Notice from lawyer
 

what about the ploy of not signing for any registered post, if a letter comes refuse it....?

again, as some people have said, why would they warn you if they were going to serve you.....

just stop selling it for now....

why pay for a lawyer, until you need one.

Re: Notice from lawyer
 

Pretty much my advice too.

Re: Notice from lawyer
 

Guys, OP clearly received a cease and desist letter.

This is usually the first stage and at this stage it's still "cheap" for OP to get out of this mess. Bear in mind, they got his real name and address.

If OP doesn't reply within the given timeframe, the rights holder will seek a temporary court order. At that stage, things are gonna get pricey.

If he doesn't react they will take things to court and get his ass sued for IP infringement. Then the court might very well look into damages and have him pay damages. E.g. for stuff he sold and for damage of reputation and what not.

Do they have any proof you may ask. I bet they do, because it's easy to take screen shots of his ebay shop and his feedback page.

But if OP already de-listed all his items you may ask? Nope, even that won't work, because the rights holders action against OP are also to prevent him from selling the stuff in the future ("risk of recurrent infringement").

But they can't calculate the damage OP has done. Be sure they can and the court can too.

Seek professional advise and try to get out of there right now, because it's gonna get more and more expensive.

Re: Notice from lawyer
 

Can you explain the purpose of a cease and desist letter to the IP owner? What does this state and what does it achieve.

Re: Notice from lawyer
 

Pretty much what it says. They want the OP to 'cease and desist' from whatever it is they're complaining the OP is doing.

Depending on what the OP has actually done, a petitioner may or may not be able to prevail, and compensatory damages are almost entirely dependent on the judge.

Keep in mind Dachilla's husband is an attorney, and therefore has an innate bias towards encouraging people to run out and to pay an attorney for advice.

The advice I usually get from honest attorneys generally runs like this: "Your case may/may not have merit, however, in the end it's all up to the judge."

Re: Notice from lawyer
 

My husband? That's interesting. :coffee:

Most attorneys (unlike my ladyboy-husband tho) offer a free initial consultation.

You are getting an advice from an attorney? What for?

Re: Notice from lawyer
 

If it's a legit letter that is directed to legit, true details - it'd be insane NOT to consult an attorney as it could be as simple as an out of court settlement or it could result in them sending your info to a prosecutor or filing a civil lawsuit - maybe both.

Re: Notice from lawyer
 

exactly what I was trying to tell them, except for the procecutor part. :thumb:

Re: Notice from lawyer
 

There are hundreds of cases of arrogant sellers ignoring letters like this that ended up with significant judgments. I know of a case that a guy was selling Universal Monster shirts, was sent a C&D and ignored it. He sold just 5 shirts and ended up having to pay $9000 + legal fees. Sometimes it's best not to ignore it - especially in cases like this were you are clearly liable.

You offered sound advice. I'd heed it if I was OP.

Re: Notice from lawyer
 

Oompaloompa asked a different question. What does a possible defendent do?


The reply is that this is an initial start to their defense.

NB, I am talking about UK and Australian law.

Re: Notice from lawyer
 

To most IP owners (especially if its a big company) it's most important that the violator stops doing what he is doing right away. In most cases it's not about compensation or damages. It's about their name and their reputation.

These letters are a warning to the violator. They're meant to settle things outside the court. For that reason the the violated party (or their lawyer) sends a letter to the violator and has him sign a cease and desist agreement.

In that agreement the accused infringer promises not to do it again. And most of the times he also promises to bear the legal fees that the infringed party had so far. Meaning: the violator promises that he'll never do it again and pays the lawyers fees for the letter he got.

After that things between both parties are settled.

In some countries the injured party is obligated to send a cease and desist letter to the violator before initiating infringement proceedings. (in russia for example)

If the violator doesn't react the injured can take things to the next step and that's when **** hits the fence. :boink:

Re: Notice from lawyer
 

^^Good clarification, dachilla. Your comments in post #11 made it seem like you were recommending to the OP that they draft their own C&D to send to the copyright holder. I was wondering what would be accomplished by sending the mega-corp a C&D for their own copyrighted product.

Re: Notice from lawyer
 

Usually the infringed party will send a cease and desist agreement formulated by their lawyer.

There are certain details that the agreement needs to meet in order to be a valid out of court settlement.

However most lawyers go over the top with that and add stuff to the agreement that doesn't have to be in there.

For example the agreement states:

1. I promise not to do it again
2. I promise to pay for apples lawyer fees that occurred from sending me this letter
3. I promise to pay 2k $ in damages to apple

Now, in order to settle things out of court only the first condition has to be met. After promising that he won't do it again, they can't sue him for damages anymore. That's why some try to include flat-rate damages in the c&d agreement together with other stuff.

That is why I told OP to get a lawyer and have HIS lawyer formulate a c&d agreement that'll settle things out of court, BUT protect him from other claims as mentioned above.

Re: Notice from lawyer
 

good clarification.

1. I promise not to do it again
2. I promise to pay for apples lawyer fees that occurred from sending me this letter
3. I promise to pay 2k $ in damages to apple

ok but what if the damages are 20K !?

Re: Notice from lawyer
 

You misunderstood or I didn't say it clear enough. The amount for damages isn't in question at this point. There are no damages to be paid at this stage. Cease and desist protects the infringing party from having to pay damages by agreeing to immediately stop doing what they r doing and promising for the future not to do it again. That's the whole point of the c&d: "You agree to not **** with our trademark anymore, and we agree not to take things any further."

However, when you get a letter regarding an ip infringement, they will always add a cease and desist agreement, that they want you to sign and send back to them. Such pre-drafted agreement will look something like.

1. I promise not to do it again
2. I promise to pay for apples lawyer fees that occurred from sending me this letter
3. I promise to pay X amount $ in damages to apple
4. In case I violate my promise of not doing it again I agree to pay X amount to apple

This is over the top. Agreeing to pay any damages isn't necessary to settle things. That's why you get a lawyer who's gonna re-draft the agreement. You'll then sign the modified agreement and send it back.

Gonna look something like this
1. I promise not to do it again

And that's it. This is enough to get things settled. The lawyer might cost you a few bucks but certainly not as much as it would cost you if you signed the pre-drafted agreement by the other party.

Edit: The flat rate of X $ in point 3 is mostly way lower than the actual damages claimed. Most of the times they will estimate the damages at around 50-80k $. However this is what they will claim if things go to court. X in point 3. is mostly around 5-10% of the actual damages claimed. This is a bit confusing but when you think about it, it makes sense.