Lengthy the province of street corner peddlers and automobile trunk salesmen, counterfeit goods are now out there just about everywhere. Even huge time retailers recognized for the good quality of their goods have been caught accidentially selling counterfeit items. To compound this challenge, the high-quality of fake merchandise has been obtaining better, and they have develop into significantly simpler to get. Worse but, a lot of of the largest suppliers claim to be authorized wholesalers. This has led to many fake products becoming sold on Amazon.com, eBay, and other World wide web marketplaces – and normally the sellers have no notion that the solutions that they are promoting are fakes. Worse yet, the producers of counterfeit solutions usually reside in “Justice Free of charge” countries, exactly where it would be prohibitively expensive, and possibly not possible for brand name makers to sue them.
Even so, brand name organizations have started to fight back really hard. passport documents renewal of have retained law firms to target counterfeited goods in any way they can – for instance, the California firm Johnson & Pham has been retained by several brands to shut down counterfeit sellers. They have targeted on the net sellers that reside in, and are amenable to service of method, in the United States. Lots of of these on line sellers are ordinary persons seeking to make a handful of extra dollars. And none of them are prepared for high-priced lawsuits demanding tens of thousands of dollars in compensation, and potentially requiring tens of thousands of further dollars to hire counsel.
Brand name producers will normally pursue on the web sellers for one of the following causes of action:
A. Trademark Infringement: Section 32(l) of the Lanham Act particularly prohibits the unauthorized use, sale, offering 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 very first degree.”
B. Unfair Competition: Even if a mark is not registered, an action for unfair competition can be brought to protect against consumer confusion. If the mark is not registered, this may well be the most viable trigger of action.
C. Trademark Dilution: As counterfeiters typically only go after popular marks, most counterfeit instances will allege trademark dilution as well.
D. Copyright Infringement: In a lot of situations, the counterfeiter will duplicate the Brand’s logo, packaging styles, instruction manuals, etc. Several of these are registered copyrights.
Commonly, the law firm retained by the brand contacts counterfeit sellers just before initiating a lawsuit. If you should acquire such a letter, you need to have to act speedily to defend your self. Below is an action program that I recommend to clients.
Action Strategy
1. Do not Ignore the Letter. These circumstances will not go away if you ignore them. Alternatively, the very aggressive firms that brands hire to pursue counterfeiters will file a complaint and raise their demand. And, if you continue to ignore the problem, the brand will obtain a default judgment against you – most likely for a lot of instances the harm you would have suffered otherwise.
2. Do not Make contact with the Law Firm. If you call the brand manufactuer’s law firm you are going to speak with an skilled attorney who is going to do everything that s/he can to represent her consumers. This involves having admissions from you, which are really likely to happen. For instance, the lawyer may well ask you “Exactly where did you get the counterfeit goods from?” Answering such a question is arguably an admission that you trafficked in counterfeit goods.
three. Get the Information. The most crucial reality for you to establish is whether or not or not the brand holder will be able to paint you as a willful infringer. In distinct, if the brand name manufacturer can convince a jury that you knew you were trafficking in counterfeit goods, damages can be much larger. In unique, if you are an innocent infringer, the damages that a brand name manufacturer can recover are extremely restricted and might be zero. On the other hand, if the brand name manufacturer can show that you knowingly trafficked in counterfeit goods, your profits, the brands actual damages, treble damages, counterfeit statutory damages, and attorneys costs. In unique, where actual understanding of counterfeiting is shown, damage awards can quickly exceed a million dollars ($1,000,000).
4. Employ an Attorney. Provided the significant number of these situations that are now getting pursued by brand name manufacturers, numerous attorneys now present cost-effective specific applications to assistance folks and smaller organizations resolve these suits. When you hire such an attorney, preserve in thoughts that you want an experienced IP lawyer that can truly litigate a case if have to have be – overlook about hiring an lawyer that helped with your will or even 1 that may well have handled the divorce of someone you know. Ask the attorney how substantially knowledge s/he has dealing with counterfeit situations, and if the attorney has actually litigated trademark concerns. And, of course, ask the attorney how considerably the action is most likely to cost if the case is resolved with no litigation, and how much it is most likely to expense if the case requires to be litigated.
5. Have your Attorney Seek a Demand. After you know what the brand name manufacturer desires, you and your attorney can determine the ideal strategy to take with your case. In unique, if the demand is low enough, contemplate paying it or possessing your attorney negotiate additional. If the demand is extremely high, and you are innocent infringer, litigation may perhaps be essential to lower the brand name manufacturer’s demand. If you are not an innocent infringer, litigating a case like this can have disastrous consequences. In specific, the harm award against you can be staggering (and is in all probability not dischargeable in bankruptcy), and there is a genuine possibility of criminal enforcement.
If you have received a letter accusing you of trafficking in counterfeit goods, you are undoubtedly under a lot of pressure. I hope that the above action program assists you approach your selection as to how to resolve such a case very carefully and calmly.
