Gibney Anthony & Flaherty LLP threat letter

[mamabear619]

What is the name of your state (only U.S. law)? CA

I got a letter from this law firm in NY a week ago demanding that I send them $450 because I tried to sell a Tiffany bracelet that I had bought from a garage sale and found out that it was a fake. I am recently unemployed and a single mom and I had to start selling some possessions to make ends meet until my unemployment checks and with Christmas coming around I don't know how I am going to pay this settlement amount. I understand that intent is not a factor with trademark infringements and I am willing to take responsibility for not doing the research before putting the bracelet for sale on ebay but I had already sent the bracelet to them and explained my situation and it doesn't seem that they are willing to work with me. I understand that I can pay it and be done with it or not and hope I don't get sued but I don't really want to take the gamble but I can't afford to pay it in full right now. Do you know if I could make payments for the settlement or if they would give me an extension so I could pay it once I get a job? I certainly meant no harm to the company and this was the first time I have sold anything of supposed value on ebay and will never do it again or at least research the product first so I am hoping they will work with me. I just don't understand how they can demand such an amount with only a weeks notice. I was even planning on selling a couple Coach purses I had previously purchased off of ebay and now I am afraid to do that because I can't be sure it is authentic even though I paid just below retail price for them. I don't know how they can charge me $100 more than the people who dealt with Rolex when the bracelet retailed for $550 and Rolex watches are in the thousands. That doesn't make sense to me. If they aren't willing to give me time to pay it then I guess I will have to ignore the letter but don't want to have to pay more in the long run. Is there anyway to tell if Tiffany has sued for this before or what their track record is? I would appreciate any help I could get on this because I do want to do what is right and take responsibility for my actions and I acknowledge that it was a stupid thing to not research it on my part and Tiffany does have to protect their name but at the same time I have a three year old daughter to feed and I have to pay for her health insurance and I don't want to ruin the holidays for her so I just hope that they will have a heart and work with me on this.What is the name of your state (only U.S. law)?

 

[cyjeff]

Tiffany is notoriously protective of their brand.

I would write them a letter outlining your situation and telling them that you simply don't have the money and are sorry.

They may still sue. If they sue, they will win. They might not sue.

I recommend you review your letter in detail before you send it. Your post was EXTREMELY hard to read and I think you repeated the same statements 4 times.

Calm down, write the letter and hope for the best... no guarantees here, though.

 

[The Occultist]

Do you know if I could make payments for the settlement or if they would give me an extension so I could pay it once I get a job?

This is not a legal question as that is entirely up to them. All you can do is ask.

I don't know how they can charge me $100 more than the people who dealt with Rolex when the bracelet retailed for $550 and Rolex watches are in the thousands. That doesn't make sense to me.

Unfortunately, that is how the law is set up.

Is there anyway to tell if Tiffany has sued for this before or what their track record is?

Doesn't matter as it won't help you in the least.

As cyjeff recommended, all you can do is write a letter and hope for the best. Might not be the worst idea in the world to have a lawyer help you draft the lawyer. Yeah, it might cost more than you think you can afford, but if it helps prevent a lawsuit, wouldn't that be worth it? There's also the off-chance that you can find a lawyer that needs to cram in his pro-bono hours by the end of the year. You might also find some cheap/free help by reaching out to your local bar or to a local university's law program.

 

[PorscheCarSnob]

Don't sweat it.

Those clowns at Gibney Anthony & Flaherty LLP, John Macaluso and his junior flunkie, Walter-Michael Lee, represent lots of brands, such as Coach, Rolex, Adidad and Tiffany & Co., to name a few, and send lots of demand letters demanding payment as damages (primarily praying on eBay sellers). Their letters are riddled with unsubstantiated claims and threats of litigation, but they sue no one, especially over $450. IP claims are very costly to pursue, and they'd have to prove conclusively you knew the item was counterfeit in order to prove you had intent. The burden of proof is on Tiffany & Co. and its attorneys, GAF, to prove their case., which is weak at best if they are relying soley on fuzzy listing photos on eBay. If GAF asks you for information, including a response to their demand letter, you aren't obligated to provide them with anything. In fact, you're probably better off saying nothing and not paying them a dime. Bottom line is that GAF does no diligence whatsoever, relying solely on listing photos and descriptions to determine an item's authenticity rather than to conduct proper diligence by purchasing the item from you and having it inspected by an expert. A study conducted by Tiffany & Co. revealed that 73% of all items sold as "authentic" Tiffany & Co. items are counterfeit, so the odds are in their favor. While they may sometimes get it right, they are wrong plenty of times too. My advice is to not respond to the demand and let the GAF letters run their course. If your item is authentic, you have no worries. In fact, if your item is authentic and they sue you, which they won't, engage a lawyer and retaliate with a counterclaim for damages to your reputation arising from or in connection with their unsubstantiated claims that you engaged in criminal wrongdoing. If you're uncertain as to authenticity of the item, seek to have it authenticated by an expert in Tiffany & Co. jewelry. A Tiffany & Co. store would be a good place to start. If the item isn't genuine, don't throw it away. Contrary to what the brand owners would have you believe, it's not illegal or unlawful to possess counterfeit or grey-market goods (only to sell them), but you can't represent the item as an authentic Tiffany & Co. piece of jewelry if its not. Always use an actual photo of the item you are selling in your eBay listing since many stock photos found on the Internet are of counterfeit goods. Also, if you know the item in your possession not genuine and you desire to relist on eBay, be sure your listing photos don't contain any registered marks of Tiffany & Co., however, under the doctrine of fair use for trademarks, its lawful to refer to Tiffany & Co. if it's necesary to describe the item or make a comparison between your item and an authentic Tiffany & Co. item, so long as you don't disparrage the Tiffany & Co. brand. Best of luck to you.

 

[The Occultist]

If you do not know how the law works, please don't post incorrect information that could get people into more trouble than they are already in.

especially over $450.

The $450 fee is a gift as, if taken to court, they could sue for much, much more (easily tens of thousands) and win.

IP claims are very costly to pursue

My guess is they make enough money to pursue such action.

and they'd have to prove conclusively you knew the item was counterfeit in order to prove you had intent.

COMPLETELY incorrect. There is no intent element to trademark infringement; either the mark was infringed upon, or it was not. In this case, it was.

The burden of proof is on Tiffany & Co. and its attorneys, GAF, to prove their case., which is weak at best if they are relying soley on fuzzy listing photos on eBay.

The only way that gem of information could mean anything to the OP is if she bought a real Tiffany bracelet that looked exactly like the one in the photos and tried to pass it off as the fake one. My guess is that it's not in the OP's budget to buy a thousand dollar jewelry item to avoid paying the $450 fee.

If GAF asks you for information, including a response to their demand letter, you aren't obligated to provide them with anything. In fact, you're probably better off saying nothing and not paying them a dime.

That is how lawsuits get started, not avoided.

Bottom line is that GAF does no diligence whatsoever, relying solely on listing photos and descriptions to determine an item's authenticity rather than to conduct proper diligence by purchasing the item from you and having it inspected by an expert. A study conducted by Tiffany & Co. revealed that 73% of all items sold as "authentic" Tiffany & Co. items are counterfeit, so the odds are in their favor. While they may sometimes get it right, they are wrong plenty of times too.

Again, that advice is only useful if the OP's plans on buying a real one to cover up the counterfeit.

My advice is to not respond to the demand and let the GAF letters run their course.

Again, that's how lawsuits get started, not prevented.

Contrary to what the brand owners would have you believe, it's not illegal or unlawful to possess counterfeit or grey-market goods (only to sell them), but you can't represent the item as an authentic Tiffany & Co. piece of jewelry if its not.

She already did try to represent the item as a Tiffany item, so it's too late.

Always use an actual photo of the item you are selling in your eBay listing since many stock photos found on the Internet are of counterfeit goods.

That doesn't help the OP if she claims the item to be a Tiffany one when it's not.

Also, if you know the item in your possession not genuine and you desire to relist on eBay, be sure your listing photos don't contain any registered marks of Tiffany & Co., however, under the doctrine of fair use for trademarks, its lawful to refer to Tiffany & Co. if it's necesary to describe the item or make a comparison between your item and an authentic Tiffany & Co. item, so long as you don't disparrage the Tiffany & Co. brand. Best of luck to you.

Too late, she already did.

Also, your post in general is kinda late considering that, if she was concerned about Christmas coming up, the due date on that demand has probably passed.

mamabear, since your thread has been bumped back up, if you happen to read this, I'm sure there are many that are curious as to what the outcome was.

 

[PorscheCarSnob]

Spoke like a troll. Stop putting the scare into people. They aren't going to sue over $450.

 

[Zigner]

Spoke like a troll. Stop putting the scare into people. They aren't going to sue over $450.

And, when they do, are YOU willing to pay on behalf of the OP?

Stop giving intentionally inaccurate "advice" or your stay here will be short.

 

[PorscheCarSnob]

What a maroon.

 

[divona2000]

...letter from this law firm in NY a week ago demanding that I send them $450 because I tried to sell a Tiffany bracelet...found out that it was a fake...I had already sent the bracelet to them and explained my situation and it doesn't seem that they are willing to work with me...

...they'd have to prove conclusively you knew the item was counterfeit in order to prove you had intent. The burden of proof..weak at best if they are relying soley on fuzzy listing photos...you aren't obligated to provide them with anything...My advice is to not respond to the demand...

Should be easy for them to prove, since OP apparently sent them the bracelet along with a letter...

 

[Zigner]

What a maroon.

Thank you for your admission...as yours are the only maroonic posts in this thread...

 

[!CuriousGeorge!]

maybe they'll take a rolex watch instead of cash...

 

[PorscheCarSnob]

I've read many posts on this web site dealing with Gibney's extortive demand tactics. There's no shortage of lawyers and non-lawyers rendering advice about the handling of such matters. Some even go so far as to instruct the recipient of a Gibney letter to make payment on these demands, even when the recipient of the letter proclaims their innoncence. More often than not, these matters are resolved with a phone call or letter and without payment of any money. My advice to anyone who is in receipt of a letter to Gibney is to get in touch with the trademark owner, whether it be Tiffany & Co., Coach or some other brand. Lawyers can sometimes get a little over zealous trying to protect their clients rights in IP, and can be difficult to deal with. The trademark owner is generally interested in protecting its rights in IP, not collecting $450, and will be more reasonable and easier to deal with than Gibney. Since I have been on both ends of this matter, I can most certainly guarantee that. And to this who think otherwise, pay the $450. It'll be cheaper than engaging a lawyer to represent you in defense of this matter.

 

[Zigner]

My advice to anyone who is in receipt of a letter to Gibney is to get in touch with the trademark owner...

BS -

Your "advice" is

My advice is to not respond to the demand and let the GAF letters run their course.

- as you stated above.

 

[PorscheCarSnob]

Should be easy for them to prove, since OP apparently sent them the bracelet along with a letter...


Should be, but Gibney isn't interested in finding the truth. If they were, they'd have purchased the item they allege is counterfeit for examination by an expert. Isn't it obvious, they want $450.

 

[Zigner]

Should be, but Gibney isn't interested in finding the truth. If they were, they'd have purchased the item they allege is counterfeit for examination by an expert. Isn't it obvious, they want $450.

Why purchase it when it was sent to them?