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Ash
Ash, Solicitor
Category: Law
Satisfied Customers: 10916
Experience:  Solicitor with 5+ years experience
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I have received Cease-and-Desist letter from a German lawyer

Customer Question

I have received Cease-and-Desist letter from a German lawyer firm. It's about a Wacken Open Air t-shirt that I sold on ebay, apparently it was a trademark infringement - I didn't know that at the time. They are threatening to sue for 100,000 Euro under German Law unless I pay their fees of 1900 Euro by Friday 20th Feb. I am based in UK, I have sold this t-shirt not really know that it was a registered trademark, but I did not make it or distribute it in any way as they claim.
I cant' afford to pay their fees of 1900 Euro by this Friday. What should I do?
I'm based in UK,
Andrew
Submitted: 2 years ago.
Category: Law
Expert:  Ash replied 2 years ago.
Alex Watts :

Hello my name is ***** ***** I will help you with this.

Alex Watts :

Did you infringe please Andrew?

Customer :

Hello Alex,

Customer :

yes, I think I did technically, but I was unaware of it at the time i.e. I dind't know that it was a registered trademark

Customer :

hiAlex ,I'm new to this website and not sure how this works, I guess I just wait for and answer from you

Alex Watts : What is it you want to achieve ?
Customer :

hi Alex,

Customer :

I don't have enough money to settle this with them as they request by 20th Feb. I certainly do not have enough to fight them in any court of law, if they do decide to take me to court for the whole 100,000 Euro as they say then they will. If they do then they will certainly not get a penny, but instead this will result in my company going bankrupt or insolvent, or me going bankrupt, and they are very unlikely to get their fees paid by me, if it comes to that that is. The t-shirt was sold through my limited company. Am I personally liable for this or is my company liable? If my company is liable then what would happen if I closed my company and stopped trading? Would this be a way to get out of this if they decided to sue? Thank you

Alex Watts :

How many did you sell and what profit did you make?

Alex Watts :

Is it a Ltd company?

Customer :

yes, it's a Ltd company, sold 1 tshirt via ebay and made a profit of about £3 after my expenses,

Alex Watts :

Have you let them know what your actual profit is?

Customer :

hi Alex, no I have not responded to them at all at this point. The 1900 Eur that hey want is their fee, and 20 of that is the actual compensation to the trademark owner.

Customer :

seems very disproportionate that their fee should be so high, yet the compensation to the trademark owner is so little, as part of this out of court settlement.

Alex Watts :

I agree. In any event they can not issue proceedings against you in Germany.

Alex Watts :

The infringement took place in the UK so they should sue you here.

Alex Watts :

Given they only want a low value anything less than £10,000 would be a small claim in the UK and they would not be entitled to costs.

Alex Watts :

You should write 'without prejudice' say what your declared profit is and offer that but not legal costs.

Alex Watts :

Otherwise invite them to issue proceedings here in the UK as that is where the offence took place.

Alex Watts :

They are just trying to bully you.

Alex Watts :

They are only entitled to profit. Legal costs can't be recovered below £10,000

Alex Watts :

Can I clarify anything for you about this today please?

Customer :

Hello Alex, I'm sorry for the late reply, ok I understand and based on your answer I will write to them. I will mark your service as excellent. I want to ask you if you would be prepared to draft a rough copy of a letter that should write to the German lawyer firm, and I would just fill in the details and amend as necessary. You see I need a little more detail, for example I am not familiar with legal terms such as 'without prejudice' and I don't know where in the letter this text should appear. If you could draft a simple letter with the key point that you mention in it that would be great. I could pay you separately for this service by means of a direct payment via Paypal or could send you a cheque, it's entilrey up to you. Or maybe there's a way to pay you for this extra work via this website, if you were prepared to do it that would be great. Please let me know. My direct contact email is andrew.zuchora 'AT' gmail.com incase you need it, thankyou, Andrew

Customer :

sorry I just realised that if I mark the service now it will close this chat and I am not sure if you will be able to respond to my question regarding drafting a simple letter, so I'll leave it for now until I hear from you, as soon as I hear from you I iwll mark it excellent regardless of what your decision is, thank you

Alex Watts :

Sadly its against site rules for me to draft documents for you. However if you draft it I can certainly take a look.

Alex Watts :

If you rate the chat does not close and I can continue to help you.

Alex Watts :

But I am happy for you to draft and I can comment.

Customer :

ok thank you, ***** ***** send you a copy for yrou comments one I have it, thaks

Customer :

thanks again

Ash, Solicitor
Category: Law
Satisfied Customers: 10916
Experience: Solicitor with 5+ years experience
Ash and other Law Specialists are ready to help you
Customer: replied 2 years ago.

Dear Alex,

Please take a look at the letter that I have drafted and let me know your comments; are there any legal terms or more suitable terms that I could have used and if the content is sufficient, also please take a close look at paragraph 3, as I'm not at all sure if I phrased it correctly. .

I'm happy to add further payment for this work via the Add Bonus interface on this website,

thank you
Andrew

here's the letter:

WITHOUT PREJUDICE

Dear Sirs

With regards ***** ***** matter raised by you of an alleged trademark infringement -

please note that we are a UK based Ltd company. Any items that we sell are NOT available to GERMANY. If you had tried to purchase one of our items you would have discovered that we do not ship to any locations in Germany.

I would like to add that we are not involved in manufacturing and/or distributing of the t-shirt with an image that is similar to the registered trademark of your client.

(paragraph 3)

To date we have sold 1 t-shirt with an image that may be similar to your clients registered trademark. The t-shirt was clearly described so that it would not confuse any potential buyer to think that it was the official merchandise or endorsed by your client. There are no other such items in our possession.

As a good will gesture we would be happy to donate all proceeds from this sale to your client, or your client’s favourite charity, via your selves.

We are not happy to pay any fees as demanded by you. In our opinion no infringement has taken place in GERMANY, as you say.

We hope you would agree that this is a reasonable resolution to this matter. If you do not agree then we request that you start your claim proceedings here in the UK, where the alleged infringement would have taken place.

Yours Sincerely

A.Zuchora
On behalf of
Fired-Up Designs Ltd

Expert:  Ash replied 2 years ago.
Yes that is fine. If seems ok.
Alex

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