C&D letter

[zaharius]

California. An individual received a C&D letter from a well-known company attorney after the company purchased an item off of ebay and determined it was a counterfeit. They sent 3-4 C&D same content letters. It has been 6 months since nothing was heard back from them. What are the chances they will start ligitation? it has been a year since the purchase date.

 

[quincy]

California. An individual received a C&D letter from a well-known company attorney after the company purchased an item off of ebay and determined it was a counterfeit. They sent 3-4 C&D same content letters. It has been 6 months since nothing was heard back from them. What are the chances they will start ligitation? it has been a year since the purchase date.

I can't tell you what the chances are that the individual will be sued. It depends on several factors, including the known litigiousness of the company involved.

If the individual was selling counterfeits online, and the company purchased one of them to verify that what was being sold were counterfeits, sending a cease and desist letter to the seller of the counterfeit goods is generally the first step a company will take. Once the items are removed from their place online, the company has a couple of options.

The company can see if the C&D stops all further sales and, if so, they might take no more action against the one who marketed the goods. The company could seek an injunction. And the company could also sue.

The company could start building a case against the individual selling the counterfeit goods, tracing past sales by that individual to better determine the extent of counterfeiting and the damages suffered as a result.

It is relatively easy to prove trademark infringement when you are dealing with counterfeits. Likelihood of confusion is pretty much a given. The whole purpose of counterfeit goods is to make a copy of an original and confuse consumers into thinking the fake is real.

Because infringement with counterfeits is relatively easy to prove, the trademark holder will generally take time to investigate the counterfeiter and his/her source of goods. The trademark holder generally knows or can find out who is selling the counterfeits online. The trademark holder also wants to discover who is producing the fake goods that are being sold.

A trademark holder will try to determine the profits realized by the counterfeiter and will try to determine their own losses. The trademark holder's attorney fees and court costs can also be part of the damages awarded to the trademark holder.

With trademark infringement, there is no federal statute of limitations (the time within which a suit must be filed). A suit will either be filed under state limitations (many with 3 year limits) or within 5 years.

You can check out the Lanham Act Sections 32 and 43 for more information: http://www.uspto.gov

If a lawsuit is filed against the counterfeiter, the counterfeiter will want to hire an attorney in his/her area.