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F E Smith
F E Smith, Advocate
Category: Law
Satisfied Customers: 9318
Experience:  I have been practising for 30 years.
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I'm a business and represent my producer

Resolved Question:

Hello,
I'm a business and represent my producer for Copyrights in on-line sell.
We cooperate with ebay VeRO legal department with enforcing Copyrights. Another ebay trader's listings were removed in due course and the trader called mme via MonayClaim Online for loss of revenues.
Thge claim based on no ground acussing me of illegal actions.
Can you advice me what way to progress? Shall I request change of the court or so?
Submitted: 1 year ago.
Category: Law
Customer: replied 1 year ago.
The caliamnt made accusations of us being competitor purposely hindering their sell.
That we commited fraud of claiming on behalf our producer; causing harrasment using illegal methods to fight competition.
They want 5000 compensations for loss of revenue and loos of good name. they claim they lost 10000 income in recent months ecause of us, whilst we know from producer theyir whole year turnover was 10K in past year. I have information from producer that they no longer got any business links woth Beauty Services, because they did not respect any of mutual arrangements in relation of infringment of logo and name.
Customer: replied 1 year ago.
(Posted by JustAnswer at customer's request) Hello. I would like to request the following Expert Service(s) from you: Live Phone Call. Let me know if you need more information, or send me the service offer(s) so we can proceed.
Customer: replied 1 year ago.
if you could call me today, yes please use *********** if other day- email me please. Thanks o lot.
Expert:  F E Smith replied 1 year ago.
We are able to telephone you as part of our premium service for which there is an extra fee. I will submit that proposal for you
Customer: replied 1 year ago.
hello I do not accept the offer.
In the option to call me was not mentionned added cost. Too expensive. Please answer in writing then what our chanses look like. We want judge to drop the case.
Expert:  F E Smith replied 1 year ago.
That isn’t a problem. You can accept or decline the offer at any time. I am happy to continue in writing.Can you explain the situation a little more as to what was alleged and what action you took please? Were the items counterfeit?Has the seller actually issued legal proceedings?
Customer: replied 1 year ago.
I am business, I'm tied by distribution contract with Farmona(producer) with some exclusive lines just for my company only.
The Claimant Beauty Services used to distribute Farmona's few years back as for Studio/professional lines. However Farmona never new the B.S sells online infringing their names, logos! They only found out because we do some Ebay selling and we thought( before entering into Contract) that they have branch in UK already or own Ebay shop. They don't! We found seller/B.S. made their Ebay ID Farmona4u with Ebay shop: farmonacosmetics! Their business seller information on bottom of each listings were fake: Farmona Krakow followed by Wimbledon address. No business is allowed to infringe other companies names to make money of it, but B.S. did and continues. Farmona-producer was really surprised, they new nothing about such activity and were no happy at all. Once we/I entered into Distribution Contract in November last year I enrolled to VeRO program/ acting on behalf Farmona: to protect registered rights' s owners of intellectual properties. We enrolled with Letter of Authorisation to represent Farmona. So it is legal tool to report and let Ebay deal with businesses infringing other own works: registered logos, names, pictures without authorisation. That's the legal way allowing chasing up traders like BS and if they do not alter their listings as per guideline- listings are being removed by Ebay. Most sellers goes along and they sell products using own made pictures, describing products in own wording etc. BS/Claimant did not want to comply with Ebay rules and each listing removed, was relisted with no changes again and again. They not only infringing name of Farmona, but on each listing they show banner with "Farmona Waliczek" registered name and design on! (I poses all relevant registrations made by Farmona before I started reporting infringing listings or any cooperation. Farmona producer contacted BS in January, asked them to change name and stop selling selected lines reserved for me. BS changed Ebay ID for 2 weeks at first, but their sell dropped, so they reinstated infringing names, brought more products from somewhere else. Farmona/producer informed us in February that they no longer have any kind of business to do with BS, due to disobedience and will NOT sell them any Farmona's products no more. Gave us Green Light to use all legal tools to make them trading fair way with no further use of their copied logos, pictures from website, catalog and business name as for their own name! NOW claimant sent me threat email at first, then trying to claim 5000 via Small Claim Court as compensation for over 100 listings being removed by Ebay until claim date.
Customer: replied 1 year ago.
Please find attched copy of my Defence of Claim
Claimant does sell originals I believe, it's not a case. Copyrights and infringing names is a case.
Expert:  F E Smith replied 1 year ago.
Thanks for full background. I have the defence. I need to see the claim form please.
Customer: replied 1 year ago.
Claim Form attached
Expert:  F E Smith replied 1 year ago.
I have the documentation now. I have read it.In my opinion, the action of the claimant is ill found and unlikely to succeed.The basis of your defence is that the listings were illegal because they had no right to use the names or the images which they were using and that is why they were removed by ebay.Once you have submitted your defence the matter that will be automatically transferred to your local court if you are a private individual.That is not going to be particularly convenient for the claimant.As part of the process, the judge is likely to order the claimant to make a fully structured claim giving details of how the losses were recurred and how they have been calculated.When you have the fully structured claim you will be required to submit a fully structured defence responding to each point individually.If they have been using the name which you are allowed to use, but they are not, you are actually entitled to compensation which would be a part of their profit which they received from selling goods earlier in breach of the intellectual property right.Can I clarify anything else for you?Please don’t forget to rate the service positive. It’s an important part of the process by which the experts get credited.Best wishesFES
Customer: replied 1 year ago.
Thanks for that, I thought it will just be disqualified and no court would sit for that claim of no ground. But it looks like we still need to see Judge and waste more time.
Could you advise how/when supposedly we could claim against them? There was the option of making counter claim (with the fee to pay) as option in Response to the claim which we dropped. I believed that to make financial claim against someone making profit on using our intellectual properties is unlikely to succeed and not for small claims, but for proper civil case fight.
We would not know: what percentage is the average people can claim from someones profit? And How would we know how many items BS sold on using the names and logos for the period of few months? And then am I right thinking we would not be able to claim from the date w become contracted with Farmona, but from the time we went through all registration process with Ebay VeRO program? ( Fact is since we appeared on the scene as Farmona's Distributor, BS were selling in dumping prices which we would have no chances to compete, so that way we had our sell reduced. We can't go under certain process to be able to pay ebay. Paypal and taxes etc. We couldn't provide proof, but we suspect they had not paid taxes last year, as we know what's the lowest to buy the stock and their company details were pointing to company being dissolved. They only recently registered as normal business.)
Customer: replied 1 year ago.
Just FYI we being contracted distributor and them never being contracted with Farmona, they were just bulk buyers. We know from producer we got max.40% discount on the regular prices whilst BS used to have just 20%- as we informed from the source itself.
So if I could not afford put such low sell prices as they had to be able to earn for transport, fees and taxes they definitely could not!
Expert:  F E Smith replied 1 year ago.
Sometimes I judge will just strike out a claim but only if the facts are so clear that there is obviously no claim at all.This appears to be bordering on that but it’s not that clear based upon the claimants facts alone.You would make a counterclaim in respect of the profit that they have made selling goods and using the intellectual property and copyright that they had no right to do. The amount of your claim would be their profit. You would need to estimate that and asked the judge to order them to disclose details of all sales.You are going to need some kind of evidence that you have the sole right to use the manufacturers name in the UK. A letter from the manufacturer would suffice.
Customer: replied 1 year ago.
Yes, we have a Exclusive Distribution agriment and a letter to eBay( LOA as demanded in the VERO ebay registration) and all the registration of the mark and brands.
Please find attched LOA Jan.2016 and LOA March 2016
Customer: replied 1 year ago.
attachments
Expert:  F E Smith replied 1 year ago.
That is good.It is now a case of dealing with the court case and documents as they arrive and the judge will eventually make a ruling on the case.Please don’t forget to rate positive. You can still ask follow up questions
F E Smith and 3 other Law Specialists are ready to help you
Customer: replied 1 year ago.
Appologies for not being in touch. Last questionarisen.
there is a form N180 to fill ASAP.
there is paragraph D about Hearing
D2: Are you asking for the court permition to use written evidence of an expert? If YES, state name of expert and the area of expertie and the likely cost if appointed.
What to put in?
Is there a room to present your opinion? Is that qualified as Expert opinion and your fees?
I'd appreciate your advice.