Please Help!! :( Company threaten legal action for me selling their brand on eBay - New Era

[Andrew1234]

Hi, I sold about 20 caps on ebay and my listing got removed and told that these caps were counterfeit. I received a letter by post a few weeks later from "new era" with the print screen of their order details and some undertaking for me to sign. I sent them the signed undertaking and agreed to never sell these again and i was unaware that these were fake.

 

I sent the original undertaking by email and by post. they replied to my email saying that i need to tell them how much profit i made and i told them that after deducting all fees, posting fees ect i made about £240, and after about nearly 2 weeks, today i received a email saying that they will accept £225 by the 7TH DECEMBER!!. I am in no financial state to pay them £225!

 

please help me with this, i will be grateful for any advise you guys can give me, do these guys really have a case? is there a way i can get out of this without paying them.

 

I am just a student and i was trying to make some extra money by buying few caps from a wholesaler.

 

thank you!

[Andrew1234]

The emails they have sent me have no name and not signed by anyone. The last email they sent me was

 

" Sale of counterfeit caps on your ‘my ebay i.d’ eBay user account

 

New Era Ref: "my ebay i.d"

 

Thank you for the information about the profit you made from the sale of New Era Caps. As per clause (e) of the undertakings, you are required to pay the account of profits figure to New Era, we will accept £225 in this instance and look forward to receiving this by 7th December 2012.

 

Yours sincerely,

 

Brand protection

 

New Era"

 

I opened this thread as soon as i received this! thanks again guys!

[Conniff]

You must not pay anyone anything at least until there is certainty these products were in fact counterfeit. If you wish to continue with the dialogue with them, then you should insist that all correspondence is on company headed paper by post and will consider all correspondence as unauthoristed unless complete with a legible signature.

 

Have they asked who this wholesaler was?

[Andrew1234]

Hi, None of the email i received has any name signed on them and no signatures either!, Although the one letter that i received was signed by someone but there was no name or anything, it just said "New era brand protection"

[Andrew1234]

Thank for the help!

[Conniff]

You must insist on proof and not just a piece of paper saying so. Sorry, but this is a US company and I trust US companies as much as I trust the inmates of Wormwood Scrubs.

 

Have they asked for any stock you have remaining? Have they asked where you got them ? Have they asked anything ?

[Andrew1234]

Hi, Yes in the post reply, i sent the signed undertaking, the proof of the website where i ordered them from, i told them that i have no more of these caps and Dont intend on getting or selling anymore as i now know what kind of hats these are.

[Andrew1234]

thanks for the help guys!, basically this is the first email they sent me when i sent them a scanned copy of the undertakings

 

" Thank you for your email. We look forward to receiving the original undertakings via post.

 

As per the contents of the letter, we would be grateful if you could supply us with the following:-

 

I. full details of all items delivered up pursuant to undertaking © above;

 

II. the names and addresses of all persons, firms, companies or organisations who have offered to supply, supplied or delivered to me any of the Counterfeit Goods;

 

III. the total number and total value of the Counterfeit Goods, stocked, imported to or exported from the United Kingdom by me or sold or otherwise supplied by me in the United Kingdom; and

 

IV. copies of any relevant purchase / sale documentation relating to (d)II-III above in my possession, power, custody or control which related to such information.

 

To pay you an amount to be agreed to compensate you as an account of the profits I have made or, if we cannot agree the amount within 14 days from the date of these undertakings, we will submit to a court"

[BankFodder]

Please do follow Connif's advice.

I would also be interested to know which country the letter came from. Could you please put it up for us to see.

 

Let me give you a few details about your situation. If a claim was brought against you, it would normally be brought in the County Court as a small claim. This means that if you lost the case, you would not be faced with having to pay the other side's costs.

 

However, if this company is trying to carry out a sweep of counterfeit goods then they might try to make a more serious issue of it.

 

They want you to turn your profits over to them. However, as Connif has indicated, they have not provided evidence that the caps are fake - although I suppose that they very likely are.

They have not show that they are the owners of any of the rights in the caps - and finally, you need to break down the rights.

 

Are these caps sold exclusively by this company or can you get the same caps elsewhere but with different badges etc on them?

 

If New Era is simply in the business of buying caps from some general supplier and then adding value to them by putting on lifestyle branding (character merchandising) - then the only profit they can claim from you is the added value from the branding. The profit from the cap itself, is yours to keep.

It might be that the cap is a generic cap - easily available - and that the branding causes an improvement in the value of, say, £5. In that case would only be liable to pay over £5 per cap.

 

On the other hand, if New Era have rights in the caps themselves because they were manufactured to their own design, then they are more justified in demanding that you turn over all of your profit to them.

 

So if you challenge them, I think that not only you need to ascertain if they are the rights-holders but also what is it that they say they hold the rights to? - The branding/motifs/badges? or the cap as well.

 

It would be a very good idea to start searching the internet to see if you can find identical caps for sale - and eventually see if you can find the source of the unbranded item.

[BankFodder]

Well I'm not able to read the last two. Try photobucket.

 

I see that in the first one they are referring to an "account of profits". This is very legal technical language coming directly from the company. They've done this before.

 

Anyway, - account of profits - is precisely what I have described to you above. You would be required to disclose to a court what profits you have made and then turn them over to the claimant - so no surprises there.

However, to ask for an account, they would have to disclose to a court just exactly what their rights are - so no surprises there either.

If they wanted damages - frankly this would be about the same as the account.

 

I expect that this company has done this before and is used to getting all of the money and is not used to be asked funny questions as to what rights do they actually own.

[Andrew1234]

here this link should work: "s1289.beta.photobucket.com/user/a118822/library/" *please remove the space between com and paste in the url*

 

thanks

[Ganymede]

here this link should work: "s1289.beta.photobucket.com/user/a118822/library/" *please remove the space between com and paste in the url*

 

thanks

 

 

 

Hi,

 

Can't open the link on my phone, could you post a copy of the undertaking you signed? Did you read it and understand what the undertaking was before signing?!

[Briann7]

Hey im in the same situation but i have not sent off the undertakings letter.

 

Any adivce??? Thanks, brian