Cease and desist the sale of company X equipment

[lowenstat]

CALIFORNIA

Company X states: "You are hereby notified to cease and desist the sale of company X equipment and any use of company X trademarks or brands."


This was company x response to me. Of course if I think they have no rights then I continue my sales and ads as is.

Does this mean that no matter what in any case I can not use their name any longer even as a descriptive title or info about products that I do have a legal right to resell using company x name?

I mean lets say they are correct about one ad. So they happen to send me this notice. Does this now mean that I have less rights then before about using their name in an ad that is legal then another person using the same ad? Have they removed more of my rights due to this notice? Did something change with respect to any previous rights I had by getting this notice?

For example, I know for almost a fact (only thing I am almost sure about at this point lol) that I can resell company x's product as was bought without modification and proper/legal advertising. (bought in US local to me and purchased retail prices) regardless of being an authorized vendor. Did this notice just remove that right now too? How could I advertise it if I cant use their name any longer or show a picture of their product any longer - which was ok prior, but not allowed now according to the notice?

Thank you for your time

[justalayman]

why did they send the cease and desist letter? are you inferring you are a company authorized sales agent your ads.

You can sell used equipment and you can use the brand name in your ad.(like: for sale; 1 Ford mustang). You can include a pic but you cannot use the manufactures pictures. They must be your own or pics you have purched the rughts to use.

I would suggest your ads are deceptive in some manner that would lead a prospective purchaser that your equipment is new and you are a factory authorized reseller.

they never removed any rights. You had no rights to begin with. They merely notified you of what rights you do not and never did have.

[lowenstat]

No deception whatsoever. Very clear and stated no affiliation.

No I am not a authorized dealer.

The ads clearly state new or used and all the need to know information without question.

The reason it is happening is I am taking business away from people that have some abck channel power. So I am getting messed with. So be it. I can play too.

We all do have rights to resell equipment, no?

[justalayman]

it is no longer new equipment since it has already been purchased from an authorized dealer. It is now "used" or second hand equipment.

[lowenstat]

Now that is just not true! lol

you better go back to sleep at that hotel in your tag line some more!

[Zigner]

You need to keep your questions in your original thread.

[justalayman]

Originally Posted by lowenstat

Now that is just not true! lol

you better go back to sleep at that hotel in your tag line some more!

what isn't true about it? The manufacturer is the only entity that can advertise the equipment as "new". Once you have purchased it, since you are not an authorised retailer, it is now used eqipment. Not in the sense that it has been used (hours in actual use) but that it is not being offered from the manufacturer and as such, it is 2nd hand merchandise.

[lowenstat]

Originally Posted by Zigner

You need to keep your questions in your original thread.

Hello,

These are separate topics - although related by me, and it would be a servere mess if kept inside one thread. In fact it would work against me becuase the title would not longer describe the current topic. People not intersted in the topic title would ignore a new set of questions.

Also, some of these are general questions spawning from my research and new curiosity so sort of becoming unrelated.

[Zigner]

Originally Posted by lowenstat

Hello,

These are separate topics - although related by me, and it would be a servere mess if kept inside one thread. In fact it would work against me becuase the title would not longer describe the current topic. People not intersted in the topic title would ignore a new set of questions.

Also, some of these are general questions spawning from my research and new curiosity so sort of becoming unrelated.

You get "boxes" (I'm guessing DVR's) and you swap out some hardware and then resell them. You are not authorized and you have been told to stop. It's all related..

The answer to your overarching problem is that you probably don't have the money to fight the big guys in court...

[lowenstat]

As for not having enough money, if that is the case - which I'm not sure how you come to that, then I probably ain't making enough for them to make it worth their while?

Also, assuming I don't have the money to fight a big guy, then wouldn't it be even more important to learn everything I could here to help me fight. Or are you suggesting it would never work?

Lastly, assuming I don't have enough money, is it impossible to just simply follow the court process on my own the best I could and simply explain my side to the judge with some examples and take a shot at it. You did outline the problem as being very simple - take a box you assume a dvr swap out hardware and resell them, etc. Wouldn't it then be simple for me to just tell that to the judge without an attorney? I think not. So it is not as simple as outlined.

Or isn't more complicated then that and before I lay down maybe look into what rights I might have. Which by the way leads to the next event in my life in some strange fashion?

I failed to mention that there is no such dealer authorized to perform the upgrade, yet several dealer do so, amongst many dozens of sellers doing it along with many hundreds of units being sold as such by private people weekly on other sites and locations. I'm feel that this will have some weight, however small, in a judges decision if not the decision by the company x to not proceed.

I can find you hundreds and hundreds of piracy and programming theft cases they are working on. Can you find me one about swapping out a hard drive and selling it? Now that would be a little jewel for you to find.

Thank you

[lowenstat]

Also, curious as to how I benefit from them sending a C & D letter to me. Should I consider filing a declaratory judgement type of response given what my goal is here?

Wouldn't that force them to get their case together pronto and explain it adn se what the judge thinkgs or is this pushing it.

They would have to file in my county if I did that, but I think they still have to come to me anyway.

If I send them a reply stating among many otehr thinsg in response to their request for dialog also stating that I am requesting them to C & D the removal of my ads cant they then file against me in their own state putting the burdon on me?

Does my C & D email hasve to state/threaten a lawsuit is thety dont stop to be a formal C & D or just the mention of the words C & D is good enough. I guess I should also ask if an email is valid enough or if it has to be sent by letter.

Or all this from both sides isn't likely given what is going on here at this stage?

Thanks

[justalayman]

first, a cease and desist letter is simply to tell you they believe they have reason to make such a demand. They could be wrong, they could be right.

There is no "legal" requirement to include anything or to even send one prior to suing you. They do this to suggest you stop before they sue you. What you do is up to you.

If you refuse to stop, I would suggest they will sue you.

as to you not having enough money to make this worth their while; it has nothing to do with how much money you have or how much they would be able to win from you. e.g. all the RIAA lawsuits against people with no money to speak of at all.

the intent is to force you to stop. Apparently your actions cause the OEM to be seen in a poor light. I would think you are selling these units as OE which is false, misleading, and illegal.

If any of that is true, they can sue you not only to request and injunction be issued to stop your actions but they can sue you for injuring their reputaion, which could run into the millions of dollars very easily.

It's tough to fight with the big boys, even when you have money. If you do not have at least into the high 6 figures available for this, I would suggest you are on the losing end of the situation.

and a declaratory judgement? who has filed suit that would allow you to request such a viewing of the facts?

Nobody yet, at least by your posts.

[tranquility]

first, a cease and desist letter is simply to tell you they believe they have reason to make such a demand. They could be wrong, they could be right.

In IP law, a cease and desist letter is notice. If the person getting such a letter ignores it, if found liable for infringement, that infringement is now willful. This raises the potential of attorney fees and punitive damages.

Lastly, assuming I don't have enough money, is it impossible to just simply follow the court process on my own the best I could and simply explain my side to the judge with some examples and take a shot at it.

Hire a BK attorney for advice on arrainging your assets to keep as much as possible as you will lose and the plaintiff either take all your money or force you into BK. You will lose long before you get the chance to "tell your side of the story".

[lowenstat]

Woooa, hold the horses here.

I already said it is not being sold as OE and clearly explained as an upgrade using the two parts. This is clearly not the problem. You keep assuming it but that is wrong.

As far as losing before I start - on what grounds?

Did you read the part that I am also reselling a product that is never modified? You really think that can be stopped assuming the advertising is proper?

Also, why would I lose if I am selling only the hard drive kit with contains nothing they own?

Also, how would they take all my money if I just walk through the process and simply wait for the chance to explain my side to the judge without a whole lot of manuvering by an attorney if that is what we chose to do.

What about the recourse I have with them stopping the ads that are not in possible violation?

I still have yet to determine that swapping out a larger hard drive damages the company x name and infringes on their tm somehow - even if I did keep selling thet unit as an upgrade. It is no different then offering a Dell with a swapped out hard drive and reselling it saying it has a larger hard drive.

Where am I going wrong - and right here?

[lowenstat]

As for no one brought a lawsuit -

A declaratory judgment is typically requested when a party is threatened with lawsuit and the threatened lawsuit is not yet filed; or when it is thought by one of two (or more) parties that their rights under law and/or contract might conflict; or as part of a counterclaim to prevent further, similar lawsuits from the same plaintiff (for example, when only a contract claim is filed, but a copyright claim might also be applicable). It may also be sought in administrative law instead of prerogative writs such as certiorari or prohibitions.

So again, is a C&D an email or does it have to be formal letter by mail?

Does it have to just say the words C&D and threaten legal remedies in it?

Along with the other questions I asked above if someone has time.

Thanks