Selling an Unwanted Item on eBay

[jk]

so, you have proof these are fake yet, for some reason, you claim they are authentic. What proof do you have they are authentic?

actually, now you are really not making any sense. How would a receipt from the actual manufacturer state they are fake? A receipt is a record of a transfer of money, not a statement of authenticity.

Your story makes less and less sense as you go along.

[TheJKH1999]

The manufacturer/TM owner is claiming they are fake, they are accusing me that they are fake, they have told me they beleive my item to be a fake. The receipt is from THEM, the manufacturer/TM owner.

Lets say supersmart made this item, they saw I was selling this item and pulled my ad and said I was selling a counterfiet item, but it turned out there was a reciept from SuperSmart showing that these came from them.

The only people who are saying they are a counterfiet are the trademark owners, yet the receipt is from them.



So I am to beleive that they have no burdon of proof with these accusations? I know its not a criminal case in wich burdon of proof is required BUT your telling me they can pull me into court claiming I have counterfeit items, claiming I am selling fakes, they can harass me then I have to prove they are real? There is absolutetly NO evidence that these are fake. So I get to court, I must prove that the item is genuine? I would have thought that they would have to prove the item is fake, I mean otherwise every single person that owned a trademark could file against anybody selling a item and just make the accusation and claim it hurt their sales. Im sure they could win just ONE of those cases to make it worth it, that is IF the evidence is left upto the accused?
I would have thought that we would go to court and the TM owner would say its fake, the Judge would ask WHY they think its a fake? what proof do they have that its a fake? The only thing he could say is because there are people selling fake items out there, thats it, he has no proof I am selling a fake item. The package is theirs and the product is theirs.

I sold the very first one to my neighbor. He does a lot of MMA training, he is a HPD officer, his brother is a sheriffs officer and their father is an adult corrections officers for the local prison, they all use it alot. I bet it would look pretty good for me to have them come to court and bring the one I sold them, that is if it would ever go that far They would say that they had done their own research and the TM owner said it is a real one, they know a few people that had bought kits from the TM owner and they look identical. Im betting if I brought all this evidence I would win and could probabley get awarded a counter suite.

Just for more evidence as soon as they accused me I took a bunch of pictures and called them up but didnt identify myself. I said I had purchased one on EBAY and had my worries. The nice lady told me to send in the pictures. I did and guess what, they said it was the real deal I of course have this email saved. So the receipt was from them and they say they are authentic as long as Im not creating competition for them?

Now I allready know this wont go to court, the TM owner has to be smart enough to know he doesnt have any case, I allready know how it would go if it did go that far, I just want to see what people think is the procedure?

Does he just make the accusation in court and I have to jump thru hoops to prove Im innocent and if I cant prove Im innocent he gets money from me? or would he need to prove I have a fake, atleast some evidence to show they were fake?

[jk]

Does he just make the accusation in court and I have to jump thru hoops to prove Im innocent and if I cant prove Im innocent he gets money from me? or would he need to prove I have a fake, atleast some evidence to show they were fake?

and what is your attorney telling you about all of this?

so, just how would a receipt from the manufacturer include the fact that these were counterfeit product?
did they say something such as:


qty. 3

FAKE TRX Force training systems


total: $XXX.XX

[TheJKH1999]

and what is your attorney telling you about all of this?

Im just curious at this point what you all think? My lawyer has allready told me exactly what are my responsibilities are in court and in selling.

so, just how would a receipt from the manufacturer include the fact that these were counterfeit product?
did they say something such as:


qty. 3

FAKE TRX Force training systems


total: $XXX.XX

OK, maybe we need to start from the begining right? You still dont get it.

I bought these at auction, there was a receipt from a company for the items, lets call this company "realsmart" for this thread. "Realsmart" Makes a product exactly like the ones I got at this auction and the receipt for these items is from "Realsmart".

I looked up the item and they looked real, they looked JUST like the items from "realsmart". I sold one to my neighbor who made sure it was real by calling "realsmart" and going thru their checklist of things to look at, they feel it is the real deal from them, he knows people that have bought this exact item from "realsmart", he compares it to theirs and it looks identical.

I post it on ebay, one at a time so nobody confuses me with a dealer of "realsmarts" and the ad gets pulled by Ebay because "realsmart" reported that it was a fake.

I contact "realsmart" by email but let them believe I had just bought one on Ebay and wanted to make sure it was real. I sent them pictures by email of the things they told me to check. They confirm that in their opinion this item is not a fake.

I email "realsmart" that the item is not a fake, they had just assumed it was a fake but their own people determined it was a genuine "realsmart" product.

I file a counter notice with Ebay, Ebay accepts this and lets me repost the item on Ebay.

My item gets pulled again, exact same ebay ad as the first time BUT this time instead of saying it was a fake they claim trademark infringement.

I started getting calls from "realsmarts" "lawyer", he cusses and rants and raves. I tell him he should call my lawyer. He continues to harass me but refuses to call my lawyer. My lawyer contacts "realsmarts" "lawyer".

Now my lawyer has only filed for the TRO against "realsmarts" "lawyer", we are hoping they just drop it but would LOVE to see this go to court for our personal amusement.

[jk]

OK, maybe we need to start from the begining right? You still dont get it.

you don't get it. You stated, as a fact, there was some sort of receipt, from Realsmart apparently, that stated the items you purchased were fake. I asked you how the receipt identified them as fake. You refused to respond to the question.

So, regardless whether you believe they are authentic or not, you were given notice they are not authentic by this mysterious receipt which for some reason specifically stated they are fake.

Realsmart is not going to authentic the items without being able to physically inspect them. Your friend calling them on the phone does nothing to authentic the items. Additionally, there are a lot of counterfeit merchandise that is very close in construct to the authentic items. Generally the manufacturer has some method of determining the authenticity due to some specific part of the item is readily identifiable to them. It is often some subtle point that is not often considered by others and is not part of the patent yet it allows them to identify their product. They typically do not release the means of identifying their product to outsiders.

Additionally, if the manufacturer believes your item is counterfeit, they do have the right to take whatever legal action they desire to frustrate your sales as well as holding you responsible for what they believe to be illegal actions on your part.

so, yes, if they believe you are selling counterfeit items, they can drag you in to court to prove they are not counterfeit. If they cannot provide enough proof to sustain their action, you have the right to seek summary judgment prior to any ensuing trial. If the judge believes they have provided adequate proof to sustain the action, they will get the opportunity to prove their case.

If you win, you can attempt to sue them for a malicious action simply intended to frustrate the sales of their competition. If they had no true evidence to support their action, you might have a viable suit. If they had anything to support their claims, you would not.

and eBay is most likely going to err on the side of caution and your sales will be continually pulled as Realsmart registers a complaint with eBay. They have that right and there is nothing you can do about it. Even if your items are 100% legal and even have the blessing of Realsmart to sell them, if eBay wants to pull your sale, they can. It's their market and they have all rights to control their market.

[TheJKH1999]

you don't get it. You stated, as a fact, there was some sort of receipt, from Realsmart apparently, that stated the items you purchased were fake. I asked you how the receipt identified them as fake. You refused to respond to the question.

.

I tried to break it down for you dude, Im sorry I wrote it as confusing as I did in the first place.

I never said it was a fake, I said the TM owner reported it as a fake, the receipt is from them, THE TM OWNER. I just didnt word it very clear When I said "them" I meant the people that later reported my items as counterfeits.

THE RECIEPT DOESNT SAY THEY ARE FAKE, IT NEVER DID, the receipt is from the TM OWNER who later claimed they are fake.

I highly doubt counterfiet items come with receipts saying they are counterfiet?

Does this make sense? I saw the receipt, then later the TM owner claimed they were fake, but the receipt I saw was from them. Is this getting a little clearer?

If they tell me they think they are real based on the detailed photos I email them but based on the one photo in my ad that is not very close up they say they are fake I wonder wich one it is?

I have absolute faith that these are the real deal.

The only time I would bring suite against them is in a counter suite for legal fee's and expense caused by the persons accusing me. I bet it wont go that far, I bet they do nothing further, if they do they are just stupid.

I know Ebay will pull if TM tells them to, I have no problem with Ebay's actions.

I dont think I would get very much in a suite against the TM owner for damages they caused when they tried to not let me sell on Ebay, I dont make my money doing this and all fee's from Ebay get refunded when they stop an ad so it never cost me any money. I might walk away with legal fee's but I doubt it.

[jk]

=TheJKH1999;413712]

I highly doubt counterfiet items come with receipts saying they are counterfiet?

that is what I was trying to understand. As you said, you are the one that wrote the confusing statement and then, even when asked directly, failed to clarify it.

I have absolute faith that these are the real deal.

then, from what I see, you don't have anything to worry about.

[paleolith]

TheJKH1999: refer to post #4, where you wrote:

there were receipts in the pile from the same company saying they are fake

That's why everyone is questioning your veracity. If that was a typo, then say so.

Speaking in practical terms, just sell them on craigslist and forget about eBay. eBay has become such a morass of illegal goods that manufacturers are casting a highly jaundiced eye on it. They aren't looking at craigslist the same way. That's why they will jump on even the slightest appearance of something wrong on eBay -- they just want to get their products off eBay entirely. They don't have a problem with craigslist. Again, this is practical advice, not legal advice.

Edward

[TheJKH1999]

Yeah, it wasnt a typo. The receipt of my items is from the trade mark owners, they didnt know where I got them from, later claimed that MY items are fakes of theirs, is this clear? The receipt is from them, they turned in a notice to ebay claiming Im selling fakes.
so I guess I should have said "the receipt is from the same people that later claimed to Ebay it was a fake"

Yeah, CL just doesnt get the kind of responses that EBAY does. Now I would understand if the company wanted their items off EBAY, the problem is that they are selling on EBAY, I get the idea they just didnt want the compitition.
I have effectivley shut their lawyer down from filing false VERO notices. In the last 2 weeks I have seen alot of used kits on EBAY I also got emails from alot of the sellers saying they went thrugh th same thing with the TM owners, now they arent being harrased

This was more of a principals thing then a legal thing with me. If their "lawyer" had not been so rude or unproffesional I wouldnt have taken it so far.

[paleolith]

OK, thanks for clarifying. Yeah, your earlier wording was really confusing.

Edward