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I received cease and desist letter from client's attorney. Do I have to pay the settlement of products I never sell?

Fresno, CA |

I purchased the books and software from a seller that claimed the products are authentic on the FAQ section on their website . I try to sell it on Bay and found out that my listing was taken down because of copyright infringement . I contacted the seller to let him know that the books and software weren't authentic and manage be able to return it . This is happened several months ago . Now I received EMAIL from client's attorney for sale of counterfeit books and software even though I did not sell a copy and make any profit . They demand me to pay $ 949 . 87 to pay the attorney's fee and legal fee based on my profit and sales which is never happened because my Bay auction was taken down . Do I have to pay the settlement even though I am not aware copyright infringement ? how do I respond ?

I reply the email saying that I never sell a product of its client and never make a single profit from it, which is true. I also allow them to contact eBay customer service related to my selling activities and provide the attorney with my eBay user id. I didn't get any reply yet. The cease and desist email that they sent me also want me to respond and pay the settlement within 10 days. It is from Johns** & Ph** law firm.

Attorney Answers 6

Posted

The short answer is you do not have to do anything unless a court orders you to do so. However, you may choose to do something. For example you may want to respond to the letter explaining the facts. You might offer to identify the person who sold the goods to you, in exchange for a waiver of the copyright owner's claim against you. I strongly suggest you have a copyright attorney draft the letter for you.
Angie Small Booth, practicing intellectual property law for 25 years

Comments provided on this website are not intended as legal advise and do not create and attorney client relationship.

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Posted

Any time you receive a cease and desist letter, you should speak to an attorney about the possibility of hiring them to respond. If you ignore the letter, they might sue you, and then you will have to hire a lawyer, and that will certainly cost you more than $950. If you have a lawyer work it out before a lawsuit happens, you may very well save money. So: call a lawyer. Good luck.

Please note: this answer is intended to inform and educate. It should not be taken as legal advice or a legal recommendation, as that would require a thorough review of all facts and circumstances. You may discuss the possibility of hiring me as a lawyer, but until we have an agreement in writing, there is no attorney-client relationship between us. Thank you, and good luck!

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Posted

Hi,

Welcome to the club! You are one of hundreds of people that have come to Avvo here posting exactly the same situation and yes after receiving a C&D from exactly the same law firm.

Look, they will sue you. They have done so before. If it was more money I would say it might be worth hiring a lawyer to examine the facts and circumstances of your situation to see if there is any possible defense, but based on your posting this would be a big waste of time.

In my opinion, and this is ONLY my opinion, pay it and move on. The fact that you did not make any money will not matter. You may want to settle for something less and see it that can be worked out. One way to do this, is to send payment noting on the check that it is in "final settlement" for (referance the matter). If they cash it, it is assenting to your offer to settle.

I hope you learn a lesson from this experience.

All the best,
Frank
Natoli-Lapin, LLC
(see Disclaimer)

The law firm of Natoli-Lapin, LLC (Home of Lantern Legal Services) offers our flat-rate legal services in the areas of business law and intellectual property to entrepreneurs, small-to-medium size businesses, independent inventors and artists across the nation and abroad. Feel free to call for a free phone consultation; your inquiries are always welcome: CONTACT: 866-871-8655 Support@LanternLegal.com DISCLAIMER: this is not intended to be specific legal advice and should not be relied upon as such. No attorney-client relationship is formed on the basis of this posting.

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Posted

YOU should not respond, you need to HAVE AN ATTORNEY RESPOND. You are likely to make matters worse. You were smart to ask here before responding.

I am not clear about your use of "client" as you may mean a customer of yours or may simply mean a client of the attorney that wrote you. If it is a customer of yours as well as the attorney's client, you have future business to protect and a settlement paying the customer may make business sense regardless of legal necessity.

If you bought this counterfeit merchandise and imported it into this country, you are a copyright infringer. If you distributed any of these (even free copies or samples) you are an infringer. In both cases, you need to read 17 USC 505 http://www.law.cornell.edu/uscode/text/17/505

You do not have to pay someone's attorney fees just because someone demands it of you. When a Court orders you to pay, then you have to pay or things escalate. However, if the client's attorney persists in the matter and takes you to court to collect attorney fees, then your costs escalate. If the opposing attorney does not receive a response, they will surely file suit. If they receive a letter from your attorney they will likely drop the matter as not worth the expense on the remote chance they might actually get attorney's fees.

Bottom Line: Hire an attorney to make the response. It will likely save you money.

I am not your lawyer and you are not my client. Free advice here is without recourse and any reliance thereupon is at your sole risk. This is done without compensation as a free public service. I am licensed in IL, MO, TX and I am a Reg. Pat. Atty. so advice in any other jurisdiction is strictly general advice and should be confirmed with an attorney licensed in that jurisdiction.

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1 comment

Bruce E. Burdick

Bruce E. Burdick

Posted

We know Johnson & Pham. They specialize in seeking damages from online infringers of copyright protected material and trademark protected goods and services. They work on contingent fee mostly so they tend not to go away unless you settle. You need an attorney to respond to them so they know their expenses will exceed their contingency. By responding yourself, you set yourself up for problems. By using an attorney you should be able to hold them off. You are going to pay an attorney. Either yours, theirs, or if you delay, both.

Posted

Hi...remember hearing Miranda rights on the old TV shows..."anything you say can and will be used against you...." Say very little on your own. It is best that you get legal advice on this matter. Any communication you undertake can possible be used if a course of action is filed against you. But, do not ignore it.

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Posted

$950 is a cheap price to pay Johnson & Pham to avoid being sued. And I'm sure they sent you a PACER printout showing the lawsuits they;ve already filed for this client, so they're not bluffing, they very well may sue you.

Realize that being stopped from committing an act in the chain of infringing commerce doies not mean you didn;t do it --it means you were stopped before you were able to finish the sale. Attempted murder is a crime, too, even if the murder never happens.

Avvo doesn't pay us for these responses, and I'm not your lawyer just because I answer this question or respond to any follow-up comments. If you want to hire me, please contact me. Otherwise, please don't expect a further response. We need an actual written agreement to form an attorney-client relationship. I'm only licensed in CA and you shouldn't rely on this answer, since each state has different laws, each situation is fact specific, and it's impossible to evaluate a legal problem without a comprehensive consultation and review of all the facts and documents at issue.

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