Listed a personal item on ebay with detailed description but indicated could not guaranteed authenticity.
Listing was removed based on this and detailed pictures. Item not sold.
1st Letter - Jan -5 (Did not respond)
General Counsel for "x company" demands:
1. Surrender all Illegal Merchandise in your possession, custody or control.
2. Provide the identity of the source of the Illegal Merchandise.
3. Make payment to “x company.” by bank or certified check, or money order, for all damages and costs incurred by "x Company" in connection with your illegal conduct, in the amount of $350USD.
2nd Notice (Jan 27)
Basically saying reiterating demands and demanding my response.
My point is "prove to me the item was counterfeit based on the listing"
Please advise whether I need to respond.
You don't state where you got this personal item or what it is or assert that it's authentic, so you should assume it's counterfeit and that the company can prove it if necessary by pointing out its imperfections and the differences between it and their genuine products.
But a demand for $350 isn't serious, and is unlikely to result in even a Small Claims suit, let alone a federal trademark infringement suit. If you only sold 1 counterfeit item, I'd say it's pretty safe to ignore this, especially in response to a letter from the general counsel and not an outside law firm, and especially if the general counsel isn't located in your state.
But if you've been selling lots of these trademarked items and have given the company reason to think you've got a business in these goods, then they probably won't stop with these letters and it wouldn't be wise to ignore them. The best course of conduct is to cease and desist trafficking in any counterfeit products.
Disclaimer: Please note that this answer does not constitute legal advice, and should not be relied on, since each state has different laws, each situation is fact specific, and it is impossible to evaluate a legal problem without a comprehensive consultation and review of all the facts and documents at issue. This answer does not create an attorney-client relationship.
It is unclear from your post whether the listing was actually representative of what you were selling. It is also unclear if you have the right to sell the product.
Determining whether you are in the right would impact how to respond to this letter.
This answer does not create an attorney client relationship. Consult an attorney before you decide on a course of action. A review of all documents and a consultation at a minimum is necessary to render effective legal advice.
Offering a USED product for sale via eBay is lawful -- so long as the ad states that the product is used and even if the ad includes the trade name, trade dress, and trademarks used to brand the product and even if the advertiser includes in the ad his or her OWN photograph of the product.
But offering someone else's NEW product for sale via eBay puts the advertiser in a wholly different category -- the advertiser literally become a business that has voluntarily chosen to become part of the retail distribution chain of the product. And EVERYONE in that chain is liable for trademark infringement if the product is counterfeit -- even when a member of that chain does not know the product is counterfeit.
So ... if you offer new products for sale [via eBay or anywhere else] it is your legal DUTY to investigate whether the products you're selling are genuine or not. Your "indication" that you cannot guarantee the product's authenticity -- far from providing you with any legal protection -- is, in fact, an admission that you have NOT done your required due diligence.
Consumer goods companies with active anti-counterfeiting programs very, very often have efficient monitoring and inspection procedures in place in order to prove that counterfeits of their products are, in fact, counterfeit. You should assume this is so in your situation.
Should you respond? Only your own attorney can provide that advice after reviewing far more facts about what you're doing. More importantly, you need to discuss with your own attorney how to go about lawfully selling new products w/a minimum of risk.
I believe you should retain counsel to handle this for you. I would need to know many more facts before advising concerning how, or whether to respond. You should know that many companies are increasingly aggressive in pursuing sales of counterfeit goods. Your statement that you could not guarantee authenticity is a red flag---if you are selling new goods (as opposed to used goods) on-line you have a duty to assure that the goods you are suing are authentic.
I agree that the request that you pay $350 (and return merchandise) may indicate that the company will not expend a lot of resources to pursue this claim against you. On the other hand, if the company turns this over to a law firm, and if you lose a law suit, you could be required to pay damages, punitive damages and attorneys fees. Many law firms are making good money these days by pursuing these claims and obtaining attorney fee awards---sometimes the attorneys fees may exceed the amount of actual damages. Thus, you face economic risk if you fail to respond to this---serious economic risk. If I were in your shoes, I would retain counsel to represent me in this matter.
I agree with the previous answers. I would stress that it is never a good idea to ignore a series of demand letters, regardless of how much they are asking for as a settlement.
Remember, the $350 demand is a settlement offer. If you ignore it, and they someday bring a lawsuit against you, their damages claim will not be for $350 but will likely include substantial penalties and fees to the tune of thousands of dollars.
Even if you are in the right, you will not look like you acted in good faith by totally ignoring them, so it may make sense for you to speak to them and figure out what exactly is going on here.
This is not legal advice, but for informational purposes only.
