Lengthy the province of street corner peddlers and car trunk salesmen, counterfeit goods are now accessible just about everywhere. Even big time retailers identified for the excellent of their merchandise have been caught accidentially selling counterfeit solutions. To compound this challenge, the good quality of fake solutions has been receiving greater, and they have turn into much easier to get. Worse yet, a lot of of the biggest suppliers claim to be authorized wholesalers. This has led to lots of fake solutions getting sold on Amazon.com, eBay, and other Net marketplaces – and generally the sellers have no notion that the products that they are promoting are fakes. Worse but, the producers of counterfeit goods frequently reside in “Justice Cost-free” nations, exactly where it would be prohibitively costly, and probably not possible for brand name makers to sue them.
However, brand name businesses have started to fight back really hard. Quite a few have retained law firms to target counterfeited goods in any way they can – for instance, the California firm Johnson & Pham has been retained by a lot of brands to shut down counterfeit sellers. They have targeted on the web sellers that reside in, and are amenable to service of approach, in the United States. Quite a few of these on the net sellers are ordinary individuals seeking to make a handful of added dollars. And none of them are ready for costly lawsuits demanding tens of thousands of dollars in compensation, and potentially requiring tens of thousands of further dollars to hire counsel.
Brand name manufacturers will normally pursue on-line sellers for one of the following causes of action:
A. 20 euro bill : Section 32(l) of the Lanham Act specifically prohibits the unauthorized use, sale, providing for sale, distribution, or marketing of counterfeit goods. Most state trademark statutes have analogous sections. Trafficking in counterfeit goods is usually described as “trademark infringement in the initially degree.”
B. Unfair Competition: Even if a mark is not registered, an action for unfair competitors can be brought to stop consumer confusion. If the mark is not registered, this may well be the most viable result in of action.
C. Trademark Dilution: As counterfeiters usually only go just after well-known marks, most counterfeit cases will allege trademark dilution as properly.
D. Copyright Infringement: In many cases, the counterfeiter will duplicate the Brand’s logo, packaging styles, instruction manuals, and so on. Many of these are registered copyrights.
Usually, the law firm retained by the brand contacts counterfeit sellers before initiating a lawsuit. If you must get such a letter, you want to act quickly to defend yourself. Below is an action strategy that I propose to consumers.
1. Do not Ignore the Letter. These situations will not go away if you ignore them. As an alternative, the really aggressive firms that brands employ to pursue counterfeiters will file a complaint and raise their demand. And, if you continue to ignore the challenge, the brand will obtain a default judgment against you – likely for a lot of instances the harm you would have suffered otherwise.
two. Do not Make contact with the Law Firm. If you contact the brand manufactuer’s law firm you are going to speak with an knowledgeable attorney who is going to do all the things that s/he can to represent her clientele. This consists of finding admissions from you, which are incredibly likely to happen. For instance, the lawyer could ask you “Where did you get the counterfeit goods from?” Answering such a query is arguably an admission that you trafficked in counterfeit goods.
three. Get the Information. The most important reality for you to ascertain is irrespective of whether or not the brand holder will be capable to paint you as a willful infringer. In distinct, if the brand name manufacturer can convince a jury that you knew you have been trafficking in counterfeit goods, damages can be significantly higher. In distinct, if you are an innocent infringer, the damages that a brand name manufacturer can recover are particularly restricted and may well be zero. On the other hand, if the brand name manufacturer can show that you knowingly trafficked in counterfeit goods, your earnings, the brands actual damages, treble damages, counterfeit statutory damages, and attorneys fees. In specific, where actual expertise of counterfeiting is shown, damage awards can easily exceed a million dollars ($1,000,000).
four. Employ an Attorney. Provided the large quantity of these situations that are now being pursued by brand name companies, numerous attorneys now supply cost-effective particular applications to assist men and women and little enterprises resolve these suits. When you employ such an attorney, retain in mind that you want an skilled IP lawyer that can basically litigate a case if need to have be – forget about hiring an attorney that helped with your will or even a single that might have handled the divorce of a person you know. Ask the attorney how much experience s/he has dealing with counterfeit situations, and if the lawyer has truly litigated trademark issues. And, of course, ask the lawyer how significantly the action is probably to cost if the case is resolved with out litigation, and how substantially it is most likely to expense if the case demands to be litigated.
five. Have your Attorney Seek a Demand. As soon as you know what the brand name manufacturer desires, you and your attorney can identify the ideal strategy to take with your case. In certain, if the demand is low adequate, take into account paying it or obtaining your lawyer negotiate further. If the demand is pretty high, and you are innocent infringer, litigation may possibly be necessary to cut down the brand name manufacturer’s demand. If you are not an innocent infringer, litigating a case like this can have disastrous consequences. In particular, the harm award against you can be staggering (and is most likely not dischargeable in bankruptcy), and there is a real possibility of criminal enforcement.
If you have received a letter accusing you of trafficking in counterfeit goods, you are undoubtedly below a lot of tension. I hope that the above action program assists you method your selection as to how to resolve such a case cautiously and calmly.