Seller claimed Womb Chair was a particular brand and it wasn't; it's a knockoff; small claims court?

[mahstmacat]

Well, it's definitely NOT a DWR/Knoll chair. The salesperson agreed, and said it was extremely dishonest to say it was a DWR product when it was not. (as we all have, she's seen Chinese manufacturers try to pass off copies of other products and even use the original photos in the ads; this was an actual human being selling to another human being something and repeatedly calling it something it wasn't). I have photos of the differences. The feet are different, the fasteners are different (hex keys here, screws that honestly don't look as good, but that's a side point, on the Knoll). and of course the difference in height between the seat and ottoman. As well as the 3" width difference and a difference in angle of the back (hard to discern but when you sit in the real one you can feel the difference; it had been a while since I'd sat in a real one ).

Another point: at least in Portland, $900 *could* conceivably be a price for a used, not new Womb Chair if someone didn't care and just wanted to get rid of it (esp. with an unusual color combination); I've been lucky and gotten good deals on several things just by being in the right place at the right time, but this one got past me.

If the seller refuses to take the chair back, I would greatly appreciate people's thoughts on what can I keep in my pocket as next moves. I also have a msg thread with him where he says he doesn't have the DWR receipt anymore and that when we go to DWR the measurements *should* be the same as the authentic Womb Chair. He's not an ignorant person, he works for a major IT company and is quite well-read. He knows what he did.

I'd love to be able to say "if you won't take it back and give me back the money, we'll just have to go to small claims court for false advertising and I have the ad and your messages."

 

[Shadowbunny]

SCC is your next step if the seller won't refund your money. You'll need his original ad, the text messages, and, if at all possible, having someone from the DWR store as a witness would be ideal.

 

[quincy]

Well, it's definitely NOT a DWR/Knoll chair. The salesperson agreed, and said it was extremely dishonest to say it was a DWR product when it was not. (as we all have, she's seen Chinese manufacturers try to pass off copies of other products and even use the original photos in the ads; this was an actual human being selling to another human being something and repeatedly calling it something it wasn't). I have photos of the differences. The feet are different, the fasteners are different (hex keys here, screws that honestly don't look as good, but that's a side point, on the Knoll). and of course the difference in height between the seat and ottoman. As well as the 3" width difference and a difference in angle of the back (hard to discern but when you sit in the real one you can feel the difference; it had been a while since I'd sat in a real one ).

Another point: at least in Portland, $900 *could* conceivably be a price for a used, not new Womb Chair if someone didn't care and just wanted to get rid of it (esp. with an unusual color combination); I've been lucky and gotten good deals on several things just by being in the right place at the right time, but this one got past me.

If the seller refuses to take the chair back, I would greatly appreciate people's thoughts on what can I keep in my pocket as next moves. I also have a msg thread with him where he says he doesn't have the DWR receipt anymore and that when we go to DWR the measurements *should* be the same as the authentic Womb Chair. He's not an ignorant person, he works for a major IT company and is quite well-read. He knows what he did.

I'd love to be able to say "if you won't take it back and give me back the money, we'll just have to go to small claims court for false advertising and I have the ad and your messages."

I am sorry the chair you purchased was not as advertised. It might be excused as an honest mistake by the seller if he had not insisted it was a DWR Knoll-licensed Womb chair.

The trademark holder(s) will need to determine if the seller is worth pursuing for infringement/dilution/false advertising but you can use the false advertisement to support a small claims action to recover your actual damages.

Following is a link to information on small claims actions in Oregon, this if you decide you want to return the chair for a refund instead of keep it, and the seller refuses a refund.

Click on the PDF link to download the small claims instructions:
https://oregonlawhelp.org/resource/small-claims-filing-instructions-for-plaintiffs

For court, you will want the advertising, your text messages with the seller, your proof of purchase, and a DWR representative would be great to have to testify that the chair you purchased is not DWR/Knoll.

Good luck.

 

[Taxing Matters]

If the seller refuses to take the chair back, I would greatly appreciate people's thoughts on what can I keep in my pocket as next moves.

If the seller refuses to take back the chair then you'd sue in small claims court. However, the claim would be that of breach of contract (the contract was for a DWR chair and that is not what you got) and if you can prove the seller knew that the chair was not what he/she said it was, you can add a claim of fraud. Fraud is harder to prove and usually requires a higher burden of proof, too (e.g clear and convincing evidence). But in at least some states you can get extra damages if you can prove fraud.

A claim of false advertising, however, generally only applies to one who is a merchant, i.e. someone in the business of selling those goods. Consumer legislation prohibiting false advertising does not generally apply to private persons making a one off sale of some household item at a garage sale or on eBay.

 

[mahstmacat]

Thank you, Shadowbuny and Taxing Matters! Got it, breach of contract, not false advertising. Thank you for that. Re fraud: would this help? Besides the ad which clearly states it, I specifically asked him afterward in a text message if he still had the DWR receipt and he said he didn't have it anymore, not that it wasn't from DWR or coming clean in any way...he continued to represent it as having come from there. Thoughts?

 

[quincy]

For civil fraud, you need to prove the seller misrepresented a material fact (and you do have the ad and texts and, possibly, testimony from DWR), but you also need to prove that the seller knowingly misrepresented this fact and his intent was to get a buyer/you to rely on this misrepresentation to his benefit and to the detriment of the buyer/you.

"Knowingly" and "intent" are difficult elements to prove.

And again, the remedy in court would be compensation for actual damages (with remote possibility of an award of punitive damages and attorney fees).

With criminal fraud, the one who committed fraud could be fined, face jail time, and be ordered to pay restitution.

Here is a link to ORS 646.638:
https://www.oregonlaws.org/ors/646.638
Here is a link to ORS 646.608:
https://www.oregonlaws.org/ors/646.608

 

[Taxing Matters]

A claim of fraud will not help you recover any additional money. With civil fraud, you need to show you suffered damages.

I think you are overlooking punitive damages in the case of intentional fraud. The Oregon Court of Appeals, in a case that has not been overruled or superceded, held that the evidence necessary to prove intentional fraud also necessarily proved the elements needed for punitive damages:

The precise findings that a jury must make to award punitive damages, e.g., aggravated or wanton misconduct, deliberate disregard for the rights of others or intentional infliction of harm, are not identical to the elements of intentional fraud. However, we conclude that evidence sufficient to support the former is necessarily encompassed by evidence which sufficiently proves the latter. To establish intentional fraud, a plaintiff must prove, among other things, that the defendant made a false representation with knowledge of its falsity and with the purpose of or knowledge that he was misleading the defendant. See U.S. National Bank v. Fought, 291 Or. 201, 220–25, 630 P.2d 337 (1981). Deliberate disregard for the plaintiff's rights or intent to harm the plaintiff is inherent in those elements of the tort. Therefore, conduct which constitutes intentional fraud is susceptible by its nature to the characterization of “aggravated” or “wanton,” as those terms have been defined in the Oregon punitive damages cases. See n. 2, supra. We do not suggest that a finding of aggravated or wanton misconduct must follow from a finding of intentional fraud. See McGregor v. Barton Sand & Gravel, Inc., 62 Or.App. 24, 29, 660 P.2d 175 (1983). The question is whether evidence sufficient to establish intentional fraud is also necessarily sufficient to support the requisite findings for the imposition of punitive damages, without additional or independent evidence pertaining to the culpability of the defendant's conduct or state of mind. We hold that it is.​

​

McMullin v. Murphy, 89 Or. App. 230, 233–34, 748 P.2d 171, 173 (1988). While punitive damages are generally not available as a remedy for a breach of contract, they are available for tort claims. ORS § 31.730. And fraud is a tort claim that can be brought independently of the breach claim. Indeed, the McMullin case was itself a contract case in which the plaintiffs brought both breach of contract and fraud claims. The plaintiff prevailed on an intentional tort claim, and thus the court held the plaintiff was entitled to punitive damages, too. The UCC provision on fraud that you cited is not one that limits damages; it simply states that the damages available "include" all the remedies available for a regular breach of contract. So I think if the intentional fraud could be proven, punitive damages would be available here.

That said, I agree with your assessment that:

For civil fraud, you need to prove the seller misrepresented a material fact (and you do have the ad and texts and, possibly, testimony from DWR), but you also need to prove that the seller knowingly misrepresented this fact and his intent was to get a buyer/you to rely on this misrepresentation to his benefit and to the detriment of the buyer/you.

"Knowingly" and "intent" are difficult elements to prove.

Very likely that will be very hard to prove in this case, at least not without doing discovery, and that would mean it couldn't be brought in small claims court. The cost to pursue that would probably make it not worth the effort given the small amount at issue here. But if the OP does have something that proves the seller knew it was not what the seller claimed, it might be worth at least putting in the fraud claim and seeing if he or she might not get punitive damages.

 

[quincy]

I mentioned in my post the remote possibility of punitive damages. I do not see them being awarded with the facts given here.

 

[mahstmacat]

Quincy and Taxing Matters, this is extremely helpful. At this point I'm not interested in punitive damages (which might change depending on how he behaves...) but a refund (including filing fees) *and* a means, somehow, to make sure he doesn't try to misrepresent it in a future sale. Is that possible?

 

[quincy]

Quincy and Taxing Matters, this is extremely helpful. At this point I'm not interested in punitive damages (which might change depending on how he behaves...) but a refund (including filing fees) *and* a means, somehow, to make sure he doesn't try to misrepresent it in a future sale. Is that possible?

The trademark holders are the ones who are responsible for stopping unauthorized uses of their marks. You as buyer are responsible for examining any goods you purchase from private sellers to make sure you are purchasing what you think you are purchasing.

I do not see the court awarding you punitive damages. I suspect you will succeed in getting a refund of the purchase price, however.

Good luck.

 

[mahstmacat]

Thank you, Quincy. Ah, oh well. I'll get a statement from a DWR rep (would that be the way to do it? Could that work? I don't want to bother them during the work day to come in, but if that's necessary I'll pay them, I guess? Could that be included in refund and refund of filing fees?) and maybe the DWR folks know a way to get him to stop listing it as one of their products. It's a lot easier than stopping a distant Chinese factory, I imagine.

Thanks for your good wishes, too.

 

[Taxing Matters]

Quincy and Taxing Matters, this is extremely helpful. At this point I'm not interested in punitive damages (which might change depending on how he behaves...) but a refund (including filing fees) *and* a means, somehow, to make sure he doesn't try to misrepresent it in a future sale. Is that possible?

All you can do in your own lawsuit is recover the damages that you have. You can't do anything in that case that will prevent the seller from misleading other buyers. But as quincy noted, you can alert the trademark holder (the manufacturer). You may also alert the Consumer Protection section of the Oregon Department of Justice too.

 

[quincy]

Thank you, Quincy. Ah, oh well. I'll get a statement from a DWR rep (would that be the way to do it? Could that work? I don't want to bother them during the work day to come in, but if that's necessary I'll pay them, I guess? Could that be included in refund and refund of filing fees?) and maybe the DWR folks know a way to get him to stop listing it as one of their products. It's a lot easier than stopping a distant Chinese factory, I imagine.

Thanks for your good wishes, too.

How many items has the seller been selling? I have been under the impression that you purchased from a private seller who was selling just the single chair and ottoman.

You can contact any trademark holder any time you know or suspect a seller is selling counterfeit goods or misrepresenting the origin of the goods. The trademark holder is tasked with policing the marketplace and stopping infringement.

For court, you would want a DWR representative to make an appearance. The DWR representative can testify to the differences between an authentic Womb Chair and what you purchased. You can offer to pay the DWR representative for his time.

Because you paid $900 and have no other actual damages, a small claims action will be the least complicated and most effective means of getting your refund.

 

[Taxing Matters]

For court, you would want a DWR representative to make an appearance. The DWR representative can testify to the differences between an authentic Womb Chair and what you purchased. You can offer to pay the DWR representative for his time.

I agree, but I think clarification of one thing is important for the OP (and anyone else reading this). You cannot pay most witnesses for their time. You may only do that for expert witnesses, and the DWR rep in this instance would be an expert witness. I just don't want people to leave with the impression that any witness may be paid.

The Oregon evidence code does apply in small claims court, but fortunately the rules for experts do not seem to require that the expert must produce a report prior to trial in order for the expert to testify as some jurisdictions do.

 

[quincy]

I agree, but I think clarification of one thing is important for the OP (and anyone else reading this). You cannot pay most witnesses for their time. You may only do that for expert witnesses, and the DWR rep in this instance would be an expert witness. I just don't want people to leave with the impression that any witness may be paid.

The Oregon evidence code does apply in small claims court, but fortunately the rules for experts do not seem to require that the expert must produce a report prior to trial in order for the expert to testify as some jurisdictions do.

I don't think that Oregon's Rules of Civil Procedure prohibits witness payment ... but, you're right. It doesn't matter here.