Ebay Help p- legal advice required? Copyright infringement ???

[dicklett]

Hi, can anyone help me ?

 

A few weeks ago i bought in good faith a designer branded item from a local sunday market as a present for my partner,

i will admit, it was cheaper than in shops which is why i bought it, who wouldnt ? it looked the business.

 

 

as was the case, the present wasnt appreciated and i didnt want it so i put it up for auction on ebay.

I described the item as it was, and the auction went on line with a starting bid price of 1 penny,

after 2 days i received notification from ebay that they had withdrawn the item from sale as it infringed upon copyright.

 

 

Why did they let me place the item on there to start with ?

The item was taken off sale and it has since just been stored away in a cupboard in my house.

 

 

I have just returned back off holiday and i had an email from Hamlins solicitors advising me that their client (the designer) found the item i had put up for sale infringed upon their copyright and intellectual rights.

 

 

They have since sent me a letter explaining the trades description act and have sent me a form of undertakings asking me to provide details of who i have sold these items to, wholesalers, suppliers asked me to return these items to them.

 

 

they aslo claim that upon signing this form i shall be responsible not only for damages, or at my election, an account of profits made from my "illegal activities" but also for their resonable legal costs including costs of investigation and contacting obtaining identification details and removing items from ebay, incurred in connection with this matter to date which i am supposed to acknowledge is currently in the region of £750, and if its proceeds further they may seek further undertakings to recover any costs that exceed this amount ?

 

I have not sold this item, it was removed from sale and i will never ever put anything on ebay again,

it has frightened the life out of me,

 

 

Can anyone advise if they experienced similar and offer any advice on what i should do next ?

 

Please help! ??

[peterlucas]

On the basis of general criminal law principles, if you genuinely believed the item was genuine when you listed it, you should have a defense of mistake.

[dx100uk]

urm..

not to sure on the legal side of things, but it appears to me this was an innocent but foolish thing to do.

i would write them a letter detailing exactly what you have here & p'haps also a copy of you ebay activity page.

i think it will become obvious to them this is not a bigtime catch they have!

i can see you side & also theirs, fake stuff was/is a very big problem.

 

my 2p

 

 

dx

[TheChancellor]

Firstly don't sign anything.

 

I would start with e-bay & ask them why they have supplied your personal data to a third party without your permission.

 

Not too sure regarding the solicitors.Perhaps at some stage an explanation stating that you were merely offering an unwanted gift & mentioning where you had purchased it from (in good faith).

 

I presume it was offered under the designer label?

[dicklett]

Yes, i listed the item describing exactly what is was and who it was made by also including a photo showing what the item was.

 

 

Firstly don't sign anything.

 

I would start with e-bay & ask them why they have supplied your personal data to a third party without your permission.

 

Not too sure regarding the solicitors.Perhaps at some stage an explanation stating that you were merely offering an unwanted gift & mentioning where you had purchased it from (in good faith).

 

I presume it was offered under the designer label?

[dicklett]

they say in the letter that unless i return the signed form of undertakings that they will take further action relating to my criminal activities.

 

 

. but the form is worded to say that i agree to their costs of £750,

 

 

i cant affors that ?!

 

 

at most i would arrnage to send them the item i had for sale,

 

 

 

 

even tho i would be out of pocket. Learnt my lesson ??? for sure!!!

[MrShed]

I would be inclined to write to the solicitors informing them that you cannot discuss the matter with them until they can prove beyond reasonable doubt that the item in question was fake. They wont be able to do this off a couple of photos I wouldnt have thought.

[nickip91]

Please can you tell me how your incident was resolved.

 

 

I ahve had a similar issue occur. I

 

 

advertised a perfume on eBay which I bought from an airshow

Ebay removed it and then and yesterday received and email from a German Lawyers

saying the had to send back a Cease and Desist declaration,

 

 

the names and addresses of the people I bought it off,

along with £1,150 legal fees!!!!

 

 

I don't have that sort of money!

 

 

They have said that if I do not send it they are taking me to court for 50,000 euros!

Over a poxy bottle of perfume which is still sealed in its box!!!!

 

Im petrified!!! Anyone with any help or advice - it would b greatley appreciated!!!

 

Nicki

[andydd]

Sounds worrying I agree.

 

There seems to be a crossover of criminal and civil law here, its not upto an individual to start criminal action against you, that is the job of the Police/CPS and possibly trading standards, it would appear that it would be quite unlikely in this case, and as pointed out you would have a good defence anyway.

 

As for a civil claim, this would in theory be possible, although it would be quite hard for the company to prove a loss and even if they did it would be unlikely to be above £5000, so any claim would be on the small track and thus costs would be very limited and nowehere near the £1150+ they quote.

 

I would get some further advice before sending it them.

 

Andy

[assisted blonde]

Copyright infrimgement cases on goods sold at Car boots etc are usually bought by Trading standards.

If you recieve a letter from solicitors dont sign their forms but send them a letter saying that you purchsed the goods in good faith from XYZ.

 

 

However if it could be shown that you were advertising more than 1 item they may come to the conclusion that you are selling counterfeit goods.

 

 

If the letter dosnt work (and it should) then you may have to take legal advice as copyright infringement cases are complex but If what you are saying is correct it is unlikely to go any further.

 

 

However copyright under the copyrights designs and Patents Act 1998 only applies to certain items such as musical works, books,films etc once the original idea has been put into a fixed medium written or recorded.

 

 

Perfume, handbags, clothes etc are patented and their are harsh penalties for selling them as genuine but in general cases are usually only bought against those who are selling multiple items and is generally a civil claim for damages/loss.

Edited March 21, 2012 by assisted blonde
hadnt finished and pressed submit by mistake

[johnvernon74]

Personally I'd ignore the letter, probably just fishing for money. They can't tell if the item is fake from photo's (if indeed it is)

[andydd]

Personally I'd ignore the letter, probably just fishing for money. They can't tell if the item is fake from photo's (if indeed it is)

 

Indeed..thats why I certainly wouldnt send them the item.

 

I'd ignore.

[assisted blonde]

Actually a company can usually have a good idea if somthing is a fake from a photo its the little things that they notice.

[andydd]

Actually a company can usually have a good idea if somthing is a fake from a photo its the little things that they notice.

 

But it doesnt actually matter what the company thinks, if they decided to pursue the issue through a court (which ultimately they would have to do to have any real prospect of success) they'd have to satisfy a judge.

[assisted blonde]

Agreed, i was just making the point that, if it is your product it is perfectly possible to tell if it is fake from a photo.

[IdaInFife]

me - i would ignore ignore and ignore

 

this is quite common i was looking for the other threads on this but they seem to far back in history to upload

 

it seems if you do communicate then they bomard you with threads and offers of paying half the costs they originally quoted etc.

 

as Mr Shed stated they would have to have proof you are flogging fake gear

1. you didn't cause it was removed

2. how can they prove it is fake or not!

[MathewLisett]

sadly ebay are idiots in cases of copyright.

there are way too many cases of companies that hold no connection to an item filing claims of infringement and ebay simply accepting their claim without checking if its true,

 

 

ebay will then state its up to you the seller to prove the other party is incorrect ,

which is in most cases impossible for the normal person.

and then they will say (ebay) they even when you have given proof,

its up to the company that sent the claim to say they were wrong.