Trouble with Customs and trademark holder
December 27, 2005 5:49 PM Subscribe
I'm in trouble w/ US Customs and a clothing manufacturer has begun sending me threatening letters for sending myself some knock-off clothing with their brand. Does anybody know anything about trademark law, or has anyone ever worked for customs?
I went to China and bought a bunch of knock-off clothing, and then shipped it back to myself in the states. Customs seized one of two boxes and sent me a letter of notification that I've violated the Lanham act. They must have then shared the information with one of the companies whose label was on the clothing, b/c their lawyers then sent me a cease and desist letter, saying that I may be liable for treble damages of up to $1mil!!! I have not sold any of the clothing, and don't intend to, but I'm pretty worried that I'm going to be sued for tens of thousands of dollars or even see jail time. What am I really liable for? How do I handle Customs? How do I get the trademark holder off my back? Help!!
I went to China and bought a bunch of knock-off clothing, and then shipped it back to myself in the states. Customs seized one of two boxes and sent me a letter of notification that I've violated the Lanham act. They must have then shared the information with one of the companies whose label was on the clothing, b/c their lawyers then sent me a cease and desist letter, saying that I may be liable for treble damages of up to $1mil!!! I have not sold any of the clothing, and don't intend to, but I'm pretty worried that I'm going to be sued for tens of thousands of dollars or even see jail time. What am I really liable for? How do I handle Customs? How do I get the trademark holder off my back? Help!!
were you intending to sell the clothing?
posted by andrew cooke at 5:57 PM on December 27, 2005
posted by andrew cooke at 5:57 PM on December 27, 2005
I would write up a letter, stating your intentions (or unintentions in this case). Have it authorized, notified, send it to the trademark's lawyers and the U.S. customs people. They will either believe you and drop the case, or you will hear again from their lawyers.
If you can afford it, get yourself a lawyer to help with this process.
posted by camworld at 6:05 PM on December 27, 2005
If you can afford it, get yourself a lawyer to help with this process.
posted by camworld at 6:05 PM on December 27, 2005
Is today ask-questions-on-the-internet-that-could-get-you-arrested day?
Get a lawyer, quick.
posted by Kickstart70 at 6:15 PM on December 27, 2005
Get a lawyer, quick.
posted by Kickstart70 at 6:15 PM on December 27, 2005
A cease and desist letter? Cease and desist from what?
posted by Gator at 6:19 PM on December 27, 2005
posted by Gator at 6:19 PM on December 27, 2005
Find an attorney to discuss your situation with — Martindale is your friend. IANAL, but I doubt you face jail time or $1,000,000 in damages as a first offender, personal use, etc.
posted by jed at 6:25 PM on December 27, 2005
posted by jed at 6:25 PM on December 27, 2005
Don't do anything -- they do not have much on you and it will not be worth their while to go after you -- if you are telling the us the whole story on the volume you purchased. Just sit back and let them vent...A year from now, they'll figure out they caught someone with $200.00 worth of counterfit goods and, most likely, drop it -- I think and you should hope !!
posted by orlin at 6:42 PM on December 27, 2005
posted by orlin at 6:42 PM on December 27, 2005
Uh, ignore orlin's advice. When in legal trouble, consult a legal expert. And seriously... posting incriminating information under your own name?
posted by dirtynumbangelboy at 7:09 PM on December 27, 2005
posted by dirtynumbangelboy at 7:09 PM on December 27, 2005
Best answer: a) Stop writing on the internet about things you may or may not have done when legal penalties are involved. Does no one have any common sense?
b) Trafficking in counterfeit goods is a crime. Luckily, there seems to be no evidence that you transferred the goods to another in exchange for anything of value. Keep it that way.
c) The United States can, and undoubtedly will, destroy any goods in their possession that bear counterfeit trademarks. You can appeal Customs seizures to try to convince them that the goods don't really have counterfeit trademarks and shouldn't have been confiscated - not knowing the goods, I have no idea whether this might be plausible or not.
d) False designations of origin are a civil offense under the applicable trademark law (generally called the Lanham Act, after the last major revision). This is murkier, but conceivably the company could sue you. Not likely if you're not actually doing business selling counterfeit goods, but who knows.
e) Advice above to send the company letters about what you did or didn't do - terrible, terrible. A notarized confession, that's pretty dumb, don't you think? Didn't we just have a thread about how dumb does an accused shoplifter have to be to sign a confession before leaving the store, and how that signed confession was used against them by the company? Don't write them a thing. Don't answer their calls. The company may well employ a private investigator to check out everything they can find out about you, to try to discover whether you run a clothing store, say. They'll check to see if that one box caught by Customs is the tip of the iceberg. If they don't find anything like that, they may well figure that you're just some schmoe and forget about it. But if you start writing them certified confessions of guilt... Don't call. Don't write. Don't answer. If they file an actual lawsuit, you'll have to get a lawyer. Until then, all you can do is get yourself in trouble by interacting with them.
posted by jellicle at 7:26 PM on December 27, 2005
b) Trafficking in counterfeit goods is a crime. Luckily, there seems to be no evidence that you transferred the goods to another in exchange for anything of value. Keep it that way.
c) The United States can, and undoubtedly will, destroy any goods in their possession that bear counterfeit trademarks. You can appeal Customs seizures to try to convince them that the goods don't really have counterfeit trademarks and shouldn't have been confiscated - not knowing the goods, I have no idea whether this might be plausible or not.
d) False designations of origin are a civil offense under the applicable trademark law (generally called the Lanham Act, after the last major revision). This is murkier, but conceivably the company could sue you. Not likely if you're not actually doing business selling counterfeit goods, but who knows.
e) Advice above to send the company letters about what you did or didn't do - terrible, terrible. A notarized confession, that's pretty dumb, don't you think? Didn't we just have a thread about how dumb does an accused shoplifter have to be to sign a confession before leaving the store, and how that signed confession was used against them by the company? Don't write them a thing. Don't answer their calls. The company may well employ a private investigator to check out everything they can find out about you, to try to discover whether you run a clothing store, say. They'll check to see if that one box caught by Customs is the tip of the iceberg. If they don't find anything like that, they may well figure that you're just some schmoe and forget about it. But if you start writing them certified confessions of guilt... Don't call. Don't write. Don't answer. If they file an actual lawsuit, you'll have to get a lawyer. Until then, all you can do is get yourself in trouble by interacting with them.
posted by jellicle at 7:26 PM on December 27, 2005
Friend of mine bought a "North Face" jacket from some guy in (theoretically) Canada. I think it was an eBay purchase. Anyway, the jacket ripped or something at some point, and because NF has a policy of replacing their stuff, my friend sent the jacket to North Face. They found out it was a fake and told him so, but gave him a new jacket anyway when he told them how he'd gotten it. NF was cool because both my friend and the company had gotten scammed. It is likely that Nike/Levi's/Gap/Gucci/Whomever is not going to be so lenient with someone who knowingly and willfully purchased and then transported knock-offs to the US. Particularly if there is enough stuff for them to make out a case with intent to distribute goods with counterfeit trademarks.
Get a lawyer, and hope you can prove it was for personal use, and if you know enough about where you bought it, maybe they won't prosecute you to the fullest extent of the law. But honestly, if you had to ship it back in crates, this was a marginally stupid stunt anyway. And what jellicle said.
posted by Medieval Maven at 7:30 PM on December 27, 2005
Get a lawyer, and hope you can prove it was for personal use, and if you know enough about where you bought it, maybe they won't prosecute you to the fullest extent of the law. But honestly, if you had to ship it back in crates, this was a marginally stupid stunt anyway. And what jellicle said.
posted by Medieval Maven at 7:30 PM on December 27, 2005
Can they prove who sent it to you? If not you may be able to claim that it was an unwarrented gift from someone in China which you knew nothing about. Kids in Europe do it all the time mailing weed back from Amsterdam. Although if you put your own name on the shipping/customs docket then you better start looking for a lawyer...
posted by MrC at 9:22 PM on December 27, 2005
posted by MrC at 9:22 PM on December 27, 2005
This is a link to a Word document on the US Customs site. It doesn't apply directly to your situation but it does give you citations to some of the applicable statutes and regulations.
If the goods were strictly for personal use and that fact is obvious I expect that the extent of the penalty will be forfeiture of the goods. On the other hand, based upon the information you've given they only seized one of two packages. You need to be sure that you can prove that you have not sold the goods contained in the second package.
Have you spoken to anyone in Fines, Penalty and Forfeitures at Customs? You might have a conversation with them without admitting anything in hopes that they might explain your options.
You "may be" liable for treble damages. What was the value of the goods imported? The safest avenue is going to be to contact a Customs attorney but if the total value of the goods is $500 it may not make economic sense (I'm not sure how they measure damages but my guess would be that they would be something less than the fair market value of the same non-countrfeit goods). Another option would be to contact a Customs broker for advice.
posted by Carbolic at 9:34 AM on December 28, 2005
If the goods were strictly for personal use and that fact is obvious I expect that the extent of the penalty will be forfeiture of the goods. On the other hand, based upon the information you've given they only seized one of two packages. You need to be sure that you can prove that you have not sold the goods contained in the second package.
Have you spoken to anyone in Fines, Penalty and Forfeitures at Customs? You might have a conversation with them without admitting anything in hopes that they might explain your options.
You "may be" liable for treble damages. What was the value of the goods imported? The safest avenue is going to be to contact a Customs attorney but if the total value of the goods is $500 it may not make economic sense (I'm not sure how they measure damages but my guess would be that they would be something less than the fair market value of the same non-countrfeit goods). Another option would be to contact a Customs broker for advice.
posted by Carbolic at 9:34 AM on December 28, 2005
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posted by headspace at 5:56 PM on December 27, 2005 [1 favorite]