Discussion:
What is the name of your state? MD
Hi
Need some help with this : Trademark Infringement Cease and decist Letter and They want Money ???
A relative has an internet website / home based business who buys from wholesale and discount dept stores , flea markets , wholesaler suppliers and resells general merchandise online ... small shippable stuff .
About a year ago 4 dozen ( Total ) of an item ( small cigarette lighter with a popular phrase on it ) was purchased from a supplier / distributor whom had sent an advert via mail advertising these catchy cute lighters.
The item ( small cigarette lighter with a popular phrase on it ) was placed at the website for sale and over a period of about 8 or 9 months the 4 dozen items were sold .
The item was not restocked or repurchased and has not been for sale at the site for about 3 months now .
The relavtive is not a supplier or distributor just operates a home based business on the net and buys and resells small stuff .
4 days ago a 5 page letter came in an envelope via regular first class mail and addressed to "owner" , ... no name just owner
The actual contents / letter inside It is dated Dec 15 of 2006 and says respond with 10 days from the date of this letter , However , is postmarked March 16 of 2007 and this was not received until March 21st or 22nd of 2007 .
The letter and contents is NOT from an attorney or Law firm ... Is from _____ Enterprises .
What gives with this and is this something to worry about ???
It seems to me that if some sort of trademark infringement was committed by the un-knowing relative sales of the item a cease and decist letter would be approppiate , However, what is puzzling is this DEMAND for 7500.00 .
The items wholesale from the supplier cost about 150.00 Total made in sales was about 295.00 .
Below is the jist of the contents, everything else was trademark info .
Thanks In Advance for advice .
Letter below :
_______________________________________
Your activities with respect to ____ place you in jeopardy of violating these various laws .
Any further sale of the merchandise by you will be considered will infringement . Willful infringments
are subject to enhanced penalties, including, but not limited to, treble damages. Furthermore, you may be
subject to temporary or permanent court injunctions, impounding of all infringing materials with or without notice,
liability for actual or statutory damages, and payment of attorneys' fees.
As such, on behalf of ____, we demand that you:
1. Immediately cease any and all manufacture, distribution, promotion or sale of such unauthorized Merchandise, and provide your written confirmation, under penalty of perjury, that you have ceased, and will not further participate in any manufacture, distribution, promotion or sale of unauthorized Merchandise.
2. Immediately provide ________with a complete and accurate accounting, including but not limited to, all records pertaining to the procurement and sale of the Merchandise, including the names of all partieis that may have manufactured, imported, exported, distributed or purchased this Merchandise in bulk.
3. Immediately provide a complete and accurate list of the nature and location of all unauthorized Merchandise
in your possession or under your control, directly or indirectly.
4. Voluntarily surrender to __________all infringing items in your possession, bearing copies, derivative
works or imitations of ___________ trademark. This includes, without limitation, any heat transfers,
patches, computer embroidery tape, silk screens, photographs, positives, negatives, artwork, plates
or other means of reproducing such trademarks or designs.
5. Cooperate with __________representatives concerning the investigation of any other parties with which
you have or have had a business relationship involving the Merchandise.
6. Provide the name, address and telephone number of the point of contact for your organization.
7. Pay to the order of ___________$7,500.00 to compensate its client for the damages arising from
your illegal activity.What is the name of your state?What is the name of your state?
Answer:
Is the person or company that sent you the letter the owner of the trademark that you are alleged to have infringed? If the trademark is registered with the USPTO, you can go to and find out if they are listed as the owners of the trademark. If they don't show up as the listed owner, or if the mark is not registered, you should demand proof that they own the mark (or have the authority to enforce the mark), or that they have an enforceable mark (if the mark is not registered).
If they are the owners (or authorized to enforce the mark), then you can decide what you want to do -- pay them to make them go away, try and negotiate with them, or ignore them. However, if they do have an enforceable trademark, then they can always file suit against you -- that's a risk that you will have to weigh when you are determining your options.
Of course, you can also sit down with a local attorney, who can review all of the facts of your particular case and advise you accordingly.
Answer:
Hi
Thank you for responding :
Your Question - "Is the person or company that sent you the letter the owner of the trademark that you are alleged to have infringed?".
My Answer - NO , they donot own the trademark , says they are sending this on behalf of another company who owns the trademark .
The trademark which is a popular three word phrase / name , is register over at USPTO, however, I didnot see the company they made reference to anywher and it appears to be registered in various ways over 8 times but by the same lawyer name which is not the same as the info sent to me , the place that sent the letter is not even a law firm or lawyer , they are an ENT.... enterprises or Enternatinment not sure which one .
The thing that puzzles me is : ( the following )
(1) OK , they send this letter and are not a law firm but say they are somebody sending it on behalf of said company who owns the trademark
(2) With a cease and decist doesnt one have to receive notice first to cease and decist and if they dont then continue committing the infringement can be sued ???
Number 1 thru 6 in the letter to me state that BUT then number 7 goes on to say send them 7500.00 .
(3) There is no point of contact in the letter , is just addressed to "Owner" and in another part of the letter they basically ask for all the personal info on who owns the company .
(4)The envelope is postmarked Mar 16th of 2007 which is when it was mailed out but the date on the letter itself is dated in Dec of 2006 and they say in another part of the letter respond within 10 day from date of the actual letter .
Answer:
(1) OK , they send this letter and are not a law firm but say they are somebody sending it on behalf of said company who owns the trademark Okay.
(2) With a cease and decist doesnt one have to receive notice first to cease and decist and if they dont then continue committing the infringement can be sued ???
Number 1 thru 6 in the letter to me state that BUT then number 7 goes on to say send them 7500.00 . No. A "cease and desist" letter has no real legal significance -- it's a common tactic to try and settle a dispute informally without getting the courts involved, that's all. There is no legal requirement to send a cease and desist letter, there is no legal requirement for you to respond. If you don't respond, you risk getting sued. However, you could also be sued without ever receiving a cease and desist letter.
(3) There is no point of contact in the letter , is just addressed to "Owner" and in another part of the letter they basically ask for all the personal info on who owns the company . (4)The envelope is postmarked Mar 16th of 2007 which is when it was mailed out but the date on the letter itself is dated in Dec of 2006 and they say in another part of the letter respond within 10 day from date of the actual letter . Your best bet is to take the letter down to a local attorney, who can review all of the facts of your situation and advise you accordingly. However, if you want to go this alone, based solely on what you have posted here, you have a couple of options. You could simply ignore the letter, and see what happens. You could contact the sender, and ask them to provide some sort of evidence that they are authorized to pursue legal action on behalf of the trademark owner. You could contac the sender and try and negotiate a settlement. It's up to you what you want to do. If you don't give in to their offer, I guess you risk getting sued -- but you might want to make sure that you know who you are dealing with first. Ask them for some sort of evidence (not just their word) that they are authorized by the trademark holder to enforce their trademark. You might even want to make an anonymous inquiry to the trademark holder to see if they even know what is going on here.
But your best option is to discuss this with a local attorney.
Answer:
Thanks again for the input
Actually I did take this up with my attorney 2 days ago and he said " DO NOTHING "
He pointed out some of the points I made above including the no point of conttact , them not providing any evidence , they just said they had proof but provided none with the attachments or letter and the picture of the item in their attachment does not appear to be the photo I did have at my website , its just the picture of the item .
He said do nothing , say nothing , sign nothing , send nothing especially anything provding them with personal contact info ... says their fishing , he said if I get anything else then come back to him , said at best they would only get a couple hundred bucks ( 2 or 3 ) NOT anywhere near that 7500 if it goes into litigation because , its a cheap item and I only made a few hundred 2 or 3 when selling them and that was in early 2006 , I never restocked them and they have been at the site with a sold out tag on them for months .
Thing is for some reason I feel somewhat uneasy and find it hard to just "Do Nothing "