If I never sold a replica Rolex but posted it on craigslist , did I commit a crime???

Guilty of what? Attempting to sell a replica , probably. However, if you ignore it, they will usually not pursue an isolated attempted sale.

The response given is not intended to create, nor does it create an ongoing duty to respond to questions. The response does not form an attorney-client relationship, nor is it intended to be anything other than the educated opinion of the author. It should not be relied upon as legal advice. The response given is based upon the limited facts provided by the person asking the question. To the extent additional or different facts exist, the response might possibly change.

Without reviewing the letter from the lawyer representing Rolex, I'm guessing you're being accused of trademark infringement for selling a counterfeit watch. If you admit that's a fake, but your defense is that you were caught before you had a chance to complete the sale, you're not going to have much luck. Under your rationale, there wouldn't be a crime called "attempted murder" because a murderer wasn't successful at the attempt.

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.

You did commit a crime related to infringement of the Rolex trademark, but that is not why the Rolex attorney is contacting you.

The Rolex attorney contacted as a civil, rather than criminal, matter, apparently demanding the payment as compensation for the infringement (please see link below) that occurred as a result of your advertising the replica watch (infringement can occur even if there was no sale). You should contact a local attorney who is experienced in this area of the law to make sure that you do not get yourself into further trouble.

Disclaimer: This post does not constitute legal advice and does not establish an attorney-client relationship.

Okay, here is yet another point of view, but somewhat different. You do not provide detail as to how you were contacted. Do not overlook the possibility that this is a scam letter. Verify who the law firm is, call them and see if there is such a lawyer and such an office, but do not talk to anyone about this issue. Did the demand ask for a PAYPAL payment? Certified check? Postal Money Order? Was the address to send the money to a P.O. Box? These would all be warning signs.

Of course it may be just what it purports to be. I can't imagine that any law firm makes any money suing anyone for $350, can you? It is likely a bluff, just like the law firms that dun people for $350 for "security guard expenses" after a shop lift arrest. It's easy money if people pay, but not worth actually suing anyone. Just some thoughts to mull over.

Sorry, I forgot one thought. Unless Rolex hires a new law firm in each county in which they find a seller of fake Rolexes, then they would have to use ONE firm and lure them into handling their claims by the promise of volumes of cases. With me so far? So how does ONE firm in Omaha Nebraska, for instance, sue people in 30,000 U.S. counties, because you have to sue them in the county where they live. See? This is why it is likely a bluff. Otherwise, please show me the law firm that will take ONE case where $350 is due, and the lawyer gets to keep 40%. See how silly this is? If this is really Rolex, it seems unlikely to me they would actually sue you. How do they even know where you live if you listed on CraigsList? Which brings us back to scammers playing you.

“Whoever intentionally traffics or attempts to traffic in goods or services and knowingly uses a counterfeit mark on or in connection with such goods or services … the use of which is likely to cause confusion, to cause mistake, or to deceive, shall … be fined not more than $2,000,000 or imprisoned not more than 10 years, or both… .” 18 U.S.C. § 2320(a).

There is no misdemeanor provision. Selling just one counterfeit item can be a felony. United States v. Foote, 413 F.3d 1240, 1246 (10th Cir. 2005). That's an eye-opening criminal statute for many attorneys unfamiliar with intellectual property law. So ... offering for sale just one counterfeit product is a crime that can be prosecuted as a felony.

Will the US Attorney’s office prosecute the crime of offering one admittedly fake Rolex watch for sale on eBay? No. The DOJ operates under the principle that “[t]he Department of Justice has historically placed–and should continue to place–the highest priority on the prosecution of intellectual property crimes that are complex and large in scale, and that undermine our economic national security or threaten public health and welfare.”

Assuming someone from Rolex sent the cease and desist and damages demand, will Rolex follow-up if the letter is ignored? Maybe. Rolex has likely has already directed eBay to remove the offending listing. But if it hasn’t (which would be an indication that the letter was NOT from Rolex) and the questioner ignores the letter and continues to list the fake Rolex for sale then that dramatically raises the risk that Rolex will follow-up. But if the listing is down and the letter is ignored and the questioner does not re-list another fake Rolex then the risk of a follow-up letter is, I think, small.

Was the letter really from Rolex? Maybe. In fact, I think likely. In any event, that’s easy to determine by doing some quick research on the attorney who signed the letter. All luxury goods sellers hire one or more teams of anti-counterfeiting folks to scour the internet, flea markets, penny saver classifieds, etc. for counterfeit goods. When a minor infringement is found a very efficient process of churning out a cease and desist and damages demand letter is put into action. That sometimes ends the matter, and sometimes does not.

The economic equation is NOT, as discussed by my colleague, whether the attorney who writes the letter will collect 40% of the $350 demand – he won’t because he’s most certainly not working on contingency. He’s being paid very handsomely out of the very large anti-counterfeiting budget of his client. Stomping out small-time infringers is like cauterizing small wounds – you do it so, in the long run, you don’t slowly bleed to death and to ensure that the small wound does not become a big wound.

In short, take the letter seriously, remove your listing, do not offer any other fake merchandise for sale, and contact an attorney who can evaluate more fully whether you should respond to the letter.