Where to go from here ?(manufacturer thinks my goods are stolen)

[Billconnelly]

I work for a major OTC pharmacy e commerce distribution center. We have company stores usually a few times a year where employees can buy items. Some items may not be packaged for retail sales as in my case. I bought a pallet of Gillette shave heads and sold them on eBay. I recently got an email from Gillette's law firm stating that they think I am selling stolen goods and want me to give them all the information pertaining to how I got them, and to send all the remaining inventory that I purchased to them. These items are not stolen, they were purchased at my company store, no paperwork cash deal. I really don't want to get my company involved with this is fear that it may cause unwanted trouble at my job. According to the letter I should respond to this letter within 7 days or they will be forced to take other action. Should I contact my lawyer for this? Where do I go from here?

 

[quincy]

I work for a major OTC pharmacy e commerce distribution center. We have company stores usually a few times a year where employees can buy items. Some items may not be packaged for retail sales as in my case. I bought a pallet of Gillette shave heads and sold them on eBay. I recently got an email from Gillette's law firm stating that they think I am selling stolen goods and want me to give them all the information pertaining to how I got them, and to send all the remaining inventory that I purchased to them. These items are not stolen, they were purchased at my company store, no paperwork cash deal. I really don't want to get my company involved with this is fear that it may cause unwanted trouble at my job. According to the letter I should respond to this letter within 7 days or they will be forced to take other action. Should I contact my lawyer for this? Where do I go from here?

What is the name of your state, Billconnelly?

Often free samples will be provided to doctors and pharmacies by companies marketing drugs and other products. These are not intended for resale and are marked as such.

 

[Billconnelly]

These were packaged as (shave club items) small box with 4 shave heads and small can of shave cream. I am in New Jersey.

 

[Billconnelly]

Also, I removed them from the shave club boxes (to save on shipping) and sold them in a large lot. So they were not in retail packaging, but they were not samples, just not in retail packaging. Thanks

 

[quincy]

Also, I removed them from the shave club boxes (to save on shipping) and sold them in a large lot. So they were not in retail packaging, but they were not samples, just not in retail packaging. Thanks

Okay. Yes, you should speak with an attorney in your area before responding to Gillette's letter.

A paperless, all cash sale of items from the distribution center to its employees can lead to questions on the legality of the sales, especially when these items are then sold to others outside their retail packaging. This is not to say your sales were illegal (more needs to be known before that can be determined) but it does send up red flags for a trademark holder.

 

[Billconnelly]

Ok, thank you

 

[quincy]

You're welcome.

As an additional note: There is a doctrine in the US called "the first sale doctrine" which allows for the resale of items that have been legally purchased. If you legally purchase an item, in other words, you can legally resell it.

However, there are a few exceptions and there can be conditions on the resale of items, including how these items are marketed to consumers. A company's trademark, for one thing, needs to be handled with care so that consumers are not confused by the advertising as to the origin of the goods being sold or that consumers are not led to believe that the products are coming directly from the company holding the trademark.

In addition, if the item was acquired illegally (e.g., stolen) or if the item is an illegal item (e.g., counterfeit), the seller of the item can potentially be held criminally liable.

It is entirely possible that neither you nor the distribution center did anything wrong. The items you sold could have been legally sold to you by the distribution center and then legally resold by you. It is possible that Gillette, as the trademark holder, might be seeing red flags (e.g., infringement, theft, counterfeiting) where none exist. It is up to the trademark holder to police the marketplace in order to protect their rights to their brand name and sometimes they might overreact to what they see.

All of this is why a personal review by an attorney in your area is needed - to see exactly where you might stand legally - this before you respond to Gillette's letter.

Good luck.

 

[justalayman]

Quincy,

Is it possible for the first sale doctrine not apply due to the situation the merchandise was purchased?

Even if it is applicable the reluctance of involving op's employer is a bit disconcerting. If the merchandise was acquired legally and op had a right to resale the products, if this goes any further it would seem the quickest solution would be to make the employer aware of the issue where as the employer can simply comvey to Gillette the activity was with their approval. If it is approved by the employer I cannot see anything but it improving the situation.


Obviously the action op needs to take at the moment is retain an attorney.

 

[quincy]

Quincy,

Is it possible for the first sale doctrine not apply due to the situation the merchandise was purchased?

Even if it is applicable the reluctance of involving op's employer is a bit disconcerting. If the merchandise was acquired legally and op had a right to resale the products, if this goes any further it would seem the quickest solution would be to make the employer aware of the issue where as the employer can simply comvey to Gillette the activity was with their approval. If it is approved by the employer I cannot see anything but it improving the situation.


Obviously the action op needs to take at the moment is retain an attorney.

It is possible that the first sale doctrine will not apply to Billconnelly's sale, yes.

In order for the first sale doctrine to apply, the item must have been purchased legally and be a legal item to sell. If an item is acquired illegally, it cannot be sold or resold legally.

The reluctance to involve the employer could be understandable if Billconnelly thinks his job would be in jeopardy.

Of course there are defenses available to an innocent buyer/seller but it is important to understand if a defense will be needed and, if so, how best to present it.

It would be smart for Bill to have an attorney personally review the facts (the letter received, the conditions of the sale and resale, the advertising of the items) to determine if Bill could be at legal risk for purchasing and/or reselling the Gillette items. His first concern should be protecting himself. If it is advised by the attorney he sees that Bill should report his employer as the source of the Gillette goods, then he should probably rely on his attorney's advice and do so.

It is important to note that trademark holders are often overzealous in their pursuit of infringers. This could simply be a case of Gillette assuming the items were illegal to sell when, in fact, the items were not illegal for the distribution center to sell to Bill or for Bill to purchase the items and later resell them.

 

[justalayman]

Why might op's job be in jeopardy if this was all approved by the employer? Obviously an employer can terminate for any reason but the reluctance to inform the employer suggests the actions may not have been approved. If this goes beyond a simple communication from Gillette, it may be op's only defense to claims made by Gillette.

 

[Zigner]

Why might op's job be in jeopardy if this was all approved by the employer? Obviously an employer can terminate for any reason but the reluctance to inform the employer suggests the actions may not have been approved. If this goes beyond a simple communication from Gillette, it may be op's only defense to claims made by Gillette.

Thanks for writing this - it saved me a few keystrokes

 

[Billconnelly]

The sale was approved by my company, and I have no problem contacting them about this matter if need be. However, I would rather not if it simply is not needed. The last thing I want is to be the guy at work who stopped employees from buying merchandise at the company store because he sold it online and it caused unwanted attention from manufactures. Nothing that I have sold was labeled as (not for resale), or anything of the like. The letter I have received implies that these goods I have sold are stolen and they are threatening legal action. So what I am doing now is forwarding the letter to my lawyer. The letter says I have 7 days to reply or they will take action. I'll see what my lawyer says on Tuesday and go from there. Stressful situation

 

[quincy]

Why might op's job be in jeopardy if this was all approved by the employer? Obviously an employer can terminate for any reason but the reluctance to inform the employer suggests the actions may not have been approved. If this goes beyond a simple communication from Gillette, it may be op's only defense to claims made by Gillette.

It is possible that the distribution center was not supposed to sell the items, or it is possible that the distribution center informed its employees that the items were for personal use only, or it is possible that the distribution center sold the items to its employees legally but separating the items from the packaging and reselling them separately could be legally problematic, or it is possible that the distribution center sold the items legally and Bill resold the items legally but Bill's advertising of the items was legally problematic, or it is possible the items were stolen as Gillette seems to think.

I don't know.

But if Bill's sales lead Gillette to the distribution center for whatever reason, Bill could potentially lose his job.

Without knowing all of the facts, all is guessing on my part. Obviously Gillette is finding some reason to send the letter to Bill and the reason appears to be that Gillette thinks the items being sold are stolen items. Facts are vital to knowing if anyone is in any legal trouble.

edit to add: I just saw your post, Bill. I think sending the letter on to your attorney is the smartest move you can make. The attorney can make better sense of it than anyone on a forum can.

 

[justalayman]

Not disagreeing with the multi-level defense you have put forth Quincy but:

If the employer is doing something wrong, contact from the employee may be beneficial to the employer. It could allow them to take corrective action before Gillette discovered it and the only thing better than it not happening would be that when Gillette discovers the issue the employer had already taken action to correct the situation

If they aren't doing anything wrong, it would still allow the employer to realize that what they are allowing is causing problems it is very likely to involve them at some points, either due to Billy's issue or some other employee. It may cause the activity to be halted but if that prevents issues with Gillette, then so be it.

If it is wholly legal, then a communication between Gillette and the employer is more likely to resolve this with the least cost and time to anybody involved.


I'm not suggesting billy take any action without first contacting an attorney but this problem may be much bigger than billy. It may involve a multi- million dollar contract that could be at risk. Billy should take steps to protect himself but I fear this may be much bigger than billy and involvement of the employer may be necessary and prudent

 

[quincy]

Not disagreeing with the multi-level defense you have put forth Quincy but:

If the employer is doing something wrong, contact from the employee may be beneficial to the employer. It could allow them to take corrective action before Gillette discovered it and the only thing better than it not happening would be that when Gillette discovers the issue the employer had already taken action to correct the situation

If they aren't doing anything wrong, it would still allow the employer to realize that what they are allowing is causing problems it is very likely to involve them at some points, either due to Billy's issue or some other employee. It may cause the activity to be halted but if that prevents issues with Gillette, then so be it.

If it is wholly legal, then a communication between Gillette and the employer is more likely to resolve this with the least cost and time to anybody involved.


I'm not suggesting billy take any action without first contacting an attorney but this problem may be much bigger than billy. It may involve a multi- million dollar contract that could be at risk. Billy should take steps to protect himself but I fear this may be much bigger than billy and involvement of the employer may be necessary and prudent

I was not aware I provided any defense, multi-level or otherwise.

Given that I don't know nearly enough about the situation to say anything definitively, I believe that Bill contacting the employer would be a mistake. He should first run everything by an attorney in New Jersey.

With contact from Bill, for example, the employer (if guilty of something) might just use Bill as a scapegoat, blaming anything and everything on Bill and immediately terminating his employment.

Bill probably does not want to be held liable for any illegal acts of his employer so he should not want to hide his employer's acts or allow for his employer to hide these acts. On the other hand, if the employer is doing nothing wrong, Bill will want to partner with his employer to defeat or put to rest any suspicions of, or false claims made by, Gillette.

If all that has been done by the employer and/or by Bill is legal and above board, the attorney Bill sees can determine this after a personal review. The attorney can advise Bill on how to respond to the letter from Gillette.

In other words, I see contacting the employer at this point is a risk that Bill should not take. I see contacting an attorney in New Jersey is the best first step for Bill to take.