ebayer sent lawyers letter to sue over £3000 .. advice please ..

[Mannyp]

Hi there,

 

Happy to find such a well infomative forum

 

What should we do here ...

 

Sold a bulk load(over £1k of oral braun toothbrush sets to an ebayer a half a year ago , turned out that the items were fake as he had the oral braun test them and has emailed us the letters from them and also the countrys trading standards .. all in German apart from the email which was automatically translated in English.

 

Now we had no idea they were fake and never even knew that there

were fake toothbrush sets ... it sounds odd but his email and letters scanned seem very legit.

 

The ebayer is requesting a full refund for the amount purchased and has threatened if no refund he will persue his lawyer to sue us over 3K inc his own expenses , lawyer, solicitor, amount of goods and payment etc Has our name, address etc

 

Although he said all the remaining toothbrush sets that were unsold were taking by trading standards in Germany and were destroyed so we have no chance of receiving the unsold stock back to try get a refund from the supplier.

 

Would it be wise to just refund their payments?

He has threatened that if no refund within 10 days our ebay account that we have had since 2004 will be locked by 10 days.

 

The eBayer is not in Uk but in Europe .. appreciate your advice, Thankyou!

[GSMGuy]

Sorry - he expects a refund 6 months down the line? Chase them - I am surprised you are even worried about it, at the end of the day you sold the items in good faith, so why has it taken so long for him to get in touch? Sounds like he is trying it on - Bet he has sold the stock on, and submitted just one for testing... Ebay & Paypal won't be interested as it falls outside of their claim period, only Paypal can lock your account, so I wouldn't worry.

 

Mike

[andie_303]

I concur with the above - if he had a dispute why hasn't he lodged such with ebay and paypal?

 

Have you looked to see if this solicitor actually exists? might be worth translating the letters - there are free internet sites available that can do this just to see what they say.

[hightail]

If he did have them tested and he is telling the truth about the rest being seized then I do think you have cause for concern. Has he sent you any official proof of the testing and the seizure?

[geoff1248]

I don't think that you can just bury your head in the sand over this. Why not have a word with your local Trading Standards who should be able to contact their German counterparts just to check if this is a legit. claim.

I would be tempted to tell him the course of action you are taking and inform him that should his claims be found to be false you will be advising maybe the German police or German Trading Standards of his attempted fraud.

I assume that there is actually a German Trading Standards?

[Mannyp]

Thanks everyone for the help, much appreciated!

 

Yep he has scanned us proof of the items being tested but there all in German so no idea what it means .. i will upload them here later and this is the email that was automatically translated and some of it is hard to interpret ...

 

--------------------------------------

 

Dear xxx,

I voted for you on 24 2009 (Flexisoft), as well as on 2009 (Flexisoft 620 Braun Oral B brush heads Flexisoft with my Ebay account xxxl acquired (see paypal receipts).

Unfortunately, it turned out that when you purchased the brush heads is clearly falsified.

This was confirmed by one of the Braun test confirmed the purchase, because I have some of your brush heads have resold. The intervention was made by the law firm FPS Frits Wicke Selig / Frankfurt am Main has a cost of 1,780 euro, which I had to wear! The remaining brush heads are covered by the firm Braun in Kronberg / Ts destroyed.

Also by your sale of these counterfeit patent DE 195 23 016 injured. It is in accordance with § 14 para 2, No. 1 Markengesetz prohibited without permission from the trademark owner to sell such brush-heads.

Due to this unique situation, I urge you to give me the purchase price of £ xxxxxx to be reimbursed. This right is me, since it plays no role fakes, as long as the purchase is already back. A paypal payment request you will receive via e-mail from me.

If you give me the sum of £ xxx does not repay, I am unfortunately forced to hire a lawyer to respond to your approach (personal details). Since I am a legal / legal expenses insurance have, I will be in case of non-refund of the purchase price this way. This is substantially more expensive for you, see the financial statements:

1. 620 Braun Aufsteckbürsten Sale price: xxx GBP

2. Cost FPS Fritze Eckart Hague, LL.M. xxx GBP

3. Solicitor costs xxx GBP

------------------

Total: £ 2801.14

 

Furthermore, in the event of a life-long indictment of Ebay blocked because until today (see Ebay xxxx xxxx .) In many cases the patent DE 195 23 016 may have breached these fakes or over a long period have offered .

Please find attached my two Purchase Documents to you, the letter from the lawyer Eckart Hague, and the patent of the company Braun.

Should the repayment of the purchase price is not made, your eBay account ****** not later than 14 August 2009 locked!

 

 

Yours sincerely

 

xxxx xxxxx

[Mannyp]

One the documents scanned the logo appears as

Deutsches patent und markenamt

http://en.wikipedia.org/wiki/Deutsches_Patent-_und_Markenamt

 

.. hmm if they really were fake then would the right thing to do is refund the payments? but then again how do we know he hasnt sold the majority of the stock and made a huge profit himself ??

[GSMGuy]

Sounds like a [problem] to me...

 

Mike

[hightail]

Sounds like a [problem] to me...

 

Could well be and if it is then it will be reasonably easy to find out. If it is a [EDIT] then he will be hoping the seller pays up without question and will give up after a little investigation. It's definitely worth some follow up though. It's entirely possible that it would take up to six months for something like this to work through the system and for the buyer to wait to ascertain his losses.

[Mannyp]

Thanks again guys! Have uploaded the letter head from the lawyer .. the website for this lawyer is FPS Rechtsanwälte & Notare -Herzlich Willkommen bei FPS Rechtsanwälte & Notare ..

 

Maybe i should reply that we are checking up with his complaint

through our trading standards to theirs and also we could try emailing the lawyer ??

[Jan4a]

I find it difficult to believe that Braun have tested these, declared them false, confiscated them and then done nothing else!

 

If this was true then I would have expected Braun to instruct their lawyers to go after everyone involved - insisting on remaining stock being delivered to Braun, suppliers being revealed, manufacturers being revealed, all invoices for products sold being copied to Braun so they can claim for damages against all parties.

 

I used to work for an Intellectual Property lawyer and this is the usual way of doing things. It is very serious stuff and I have known of factories being closed down in the past because of IP and patent infractions.

 

I cannot believe a big company like Braun would just confiscate that stock. They would want to trace it back to source and claim damages from all involved so I'm not sure I even believe that Braun have tested the items - if they had been made aware of fakes the big guns would be writing to you to disclose your supplier and to sue you for damages AND they'd be doing the same to the purchaser!

 

But you can't ask Braun if they've tested or you'd be making them aware of the problem so difficult one! I'd be tempted to ask purchaser for more info re testing at Braun. Say you want to speak to them. See if he's prepared to give it to you.

[noomill060]

I agree- If Braun had in fact been made aware of fake examples of their own products being sold it, you would have heard from Braun or specialist solicitors in the UK representing them.

 

Germans solicitors cant take action in the UK- only UK solicitors can do that

[hightail]

This was confirmed by one of the Braun test confirmed the purchase, because I have some of your brush heads have resold

 

I get the impression from this that it is one of his retail customers who started the ball rolling (if he's telling the truth of course). If so it could have been bought any time, it's not necessarily his first sale of this batch. He's therefore guilty of selling counterfeit goods and has paid up pdq to avoid further trouble.

 

you would have heard from Braun or specialist solicitors in the UK representing them.

 

Maybe, maybe not. Braun went after the person reported as the seller. Exactly the same thing happens here when someone sells counterfeits on ebay - they often don't go further back through the supply chain.

 

Why not get in touch with your supplier and see what they say?

[Jan4a]

It is true that some companies are more aggressive about protecting their IP rights than others and maybe Braun are attempting to save on legal fees due to recession!

 

Definitely don't email the German lawyers at the moment - you need translations and more advice first. It’s too easy to say the wrong thing.

 

If they decide to sue you the German lawyer would instruct a UK lawyer to come after you - so then there would be 2 sets of legal fees and that is the costs they're threatening you with.

Wonder if its worth starting a new thread saying something like "Help needed with Patent/Intellectual Property law" and see if there any experts on here?

Edited August 7, 2009 by Jan4a

[noomill060]

Ok, they way I understand it is:

 

1) You sold some Braun toothbrushes on Ebay to this guy

 

2) This guy sells some toothbrushes, which may or may not be the same toothbrushes, we dont know and now there is no way of knowing.

 

3) The toothbrushes which THIS guy has flogged have possibly been confirmed as fakes and he has been rumbled.

 

4) The guy is claiming that these are the ones that you sold him, but as they have all been destroyed these is no way of proving it.

 

5) The guy wants you to pay.

 

 

Let him prove that you sold him fakes.

[Jan4a]

So he just writes and says the toothbrushes he sold weren't fakes? Good thinking. Might put off buyer if he thinks he'll have a long battle - his legal fees might frighten him off.

[noomill060]

No, he doesnt have to do anything dont waste a stamp- let them do the running if they want to waste a lot of money.

 

If a claim is served, deny any accusations and put them to Strict Proof that the toothbrushes he sold the guy were fake.

[Mannyp]

hmm ... interesting alot of good points here, Thank you all so much!

 

Ok dont email German lawyer and dont reply or say anything and let them do the chasing and see how they follow up after the initial email ... thats a really good point , how can he prove the ones he sold to his buyers were the batch he bought from us ??? ... who knows ... maybe this guys bought other batches from other sellers and maybe the fakes were not even the ones

we sold him!

 

I mean its been half a year and doubt it would take him that long to sell in bulk ...

 

I'll update you guys when the 2nd email comes, ive got a funny feeling it wont be too long ..

[Bookworm]

I concur with Noomill. If he wants to risk huge amounts of money to instruct a UK lawyer to pursue you in small claims, it will be up to him to convince the judge that the toothbrushes were a) fakes, b) supplied by you, with no guarantee that he will win, and even if he does, the judge may well not grant him all the lawyers fees.

 

Personally, I wouldn't ignore him altogether as it can encourage a chancer to try for a default judgment if they think it won't get defended. I would send a short e-mail/letter pointing out that the burden of proof is on them and that any claim will be vigorously defended. ;-)

[Mannyp]

I concur with Noomill. If he wants to risk huge amounts of money to instruct a UK lawyer to pursue you in small claims, it will be up to him to convince the judge that the toothbrushes were a) fakes, b) supplied by you, with no guarantee that he will win, and even if he does, the judge may well not grant him all the lawyers fees.

 

Personally, I wouldn't ignore him altogether as it can encourage a chancer to try for a default judgment if they think it won't get defended. I would send a short e-mail/letter pointing out that the burden of proof is on them and that any claim will be vigorously defended. ;-)

 

Sorry for my ignorance ... would that mean we would have to go to court to defend our case in front of a judge ?? If thats the case i think rather just send the refund.

 

So your saying there is still a possibilty that he could win and then we would end up having to pay even more money than just the refund ... i just noticed in the personal details he has of ours .. the postcode is totally incorrect, the name and city, region is correct but he doesnt have our house first line address,town or phone number .. although my name is so rare that there is probably only 1 in the whole city..

[Bookworm]

IF he were to chance going to court, then yes, you would have to go to court or lose by default. But as the defendant, you can ask for the case to be transferred to your local court anyway and it's no big deal. Personally, and this is just my opinion, I think he would be unlikely to do so once he realises you are no soft touch.

 

You have little to lose by sending the letter as I have outlined and see if he takes it further. IF he does, then you can always back down and pay up if you don't want to fight it, but with him abroad and on such a dodgy case, I'd be very very surprised if he does. ;-)

 

You could try posting on the e-bay forum, see if anyone else has been caught by the same claims. ;-)

[BSC]

Ok, they way I understand it is:

 

1) You sold some Braun toothbrushes on Ebay to this guy

 

2) This guy sells some toothbrushes, which may or may not be the same toothbrushes, we dont know and now there is no way of knowing.

 

3) The toothbrushes which THIS guy has flogged have possibly been confirmed as fakes and he has been rumbled.

 

4) The guy is claiming that these are the ones that you sold him, but as they have all been destroyed these is no way of proving it.

 

5) The guy wants you to pay.

 

 

Let him prove that you sold him fakes.

 

Indeed.

[kiptower]

check ebay out , this isnt something new first started in 2007

 

this relates to the heads actually

 

***FAKE ***ORAL-B Braun Brush

 

This guide is no longer available due to ongoing discussions between several other ebayers about poducts they are selling - sorry for any inconvenience

[Jan4a]

It is of course up to you what course you take but bear in mind that if you pay him the £3,000 you are admitting liability -so if you go this route I wonder if a letter saying something like "enclose £3,000 as a gesture of goodwill but not admitting liability" would work? anybody know? Would it be worth offering half to try to settle?

 

Not sure I'd pay though. People have made good points about fighting it, but please also bear in mind that just because you haven't heard from Braun yet doesn't mean you aren't going to. That's what worries me about you paying it/accepting liability. If you fought it and won though as suggested above, then Braun would be unlikely to come after you at a later date.

 

It is a difficult decision and IP law is complicated. If you can afford it and are uncertain I'd see a specialist IP lawyer to help you make a decision. You could make an appointment, tell them the scenario, ask what they could do about it and what it would cost, and then decide whether to instruct them or not. Someone in the field might even know if Braun are known to sue or not. And remember lawyers are suffering in the recession as well so do negotiate on price. If it is not genuine (and sometimes if it is!) one letter from one of the international firms of lawyers is enough to frighten them off.

 

So the answer to your question is yes, there is always a possibility you could lose and have to pay more. But there is also the possiblity that you pay him off and then Braun come after you at a later date.

 

Sorry - I know I tend to see the negatives of everything, I think its because I've worked for lawyers!! But please note I am not expert, just passing on what I have picked up over the years. I have no legal training whatsoever.

[Jan4a]

I think I'd go with what Bookworm is suggesting initially - and then make a decision once you get a response from that.