Sample Letters and Legal Concepts
Sample Letter #1 -
Joe Smith
2001 Oak Street
New York, NY 10021
212-555-1212
September 20, 2008
ABC T-Shirt Company
33 Wacker Drive
Chicago, IL 60606
RE: Alleged Trademark Infringement - ebay item #180130784373
Dear Sir/Madam:
On September 20, 2008 I received a notice from eBay indicating that my auction number 180130784373 was removed for a trademark violation as a result of a complaint from your company. The auction was for a brand new shirt which was manufactured by your company. The auction listing included my own picture of the item and stated that it was a brand new genuine item.
Based on these facts you have no legal justification to send ebay a notice of trademark infringment and cause my listing to be removed. As you may know your notice of alleged infringement to eBay also causes a negative mark on my account which is false and therefore defamatory. Your intentional actions also interfered with my contractual relationship with Ebay and also interfered with a prospective economic advantage of mine as I had bidders on the item one of which would have purchased the item.
I am giving you 48 hours to contact eBay and retract your takedown notice and request that my auction be reinstated. Should you fail to do this I will file suit in a court of competent juristiction seeking compensatory damages, punitive damages and equitable relief in the form of an injunction ordering you to retract your takedown notice.
For your convenience I have attached a copy of the takedown email I received from eBay.
Thank you for your anticipated cooperation.
Sincerely,
Joe Smith
By Certified Mail # 03073330000123355366
Sample Letter #2 -
Joe Smith
2001 Oak Street
New York, NY 10021
212-555-1212
September 20, 2008
ABC T-Shirt Company
33 Wacker Drive
Chicago, IL 60606
RE: Alleged Copyright Infringement - ebay item #170130784003
Dear Sir/Madam:
On August 04, 2008 I received a notice from eBay indicating that my auction number 160130784402 was removed for a copyright violation as a result of a complaint from your company. The auction was for a brand new shirt that was manufactured by your company and the listing included my own picture and statements indicated that it was a genuine item. This listing contained absolutely no evidence that woud suggest it is infringing on a copyright or that it is anything but genuine. After filing a proper counter-notice and waiting several days my auction was reinstated.
On September 19, 2008 you filed another takedown, alleging copyright infringement, against my auction for a shirt I was selling. I recently purchased 30 shirts from your outlet store and I am selling them a few at a time. I am in the process of filing a counter-notice for this takedown, but I am also writing you to alert you of my legal rights as well as your potential libilites for repeated unwarranted takedowns of my auction listings.
First, I refer you to the Digital Millenium Copyright Act Section 512(f) which states "Any person who knowingly materially misrepresents under this section.....that material or activity is infringing.....shall be liable for any damages, including costs and attorneys' fees..." My auction clearly stated the item was genuine and there is not a scintilla of evidence to suggest otherwise.
Secondly, your repated takedowns may also support causes of action for intentional interference with contractual relations, intentional interference with prospective economic advantage and defamation. You disrupted my contractual relationship with eBay and the prospective buyer of my item as I had bids on it at the time of the takedown you initiated. You statements to eBay were false, defamatory and caused me harm.
For your convenience I have attached a copy of the takedown email I received from eBay.
Thank you for your anticipated cooperation.
Sincerely,
Joe Smith
By Certified Mail # 03073330000123355367
Tort of Intentional Interference with Prospective Economic Advantage
The elements of that tort of are: (1) an economic relationship between [the plaintiff and some third person] containing the probability of future economic benefit to the [plaintiff], (2) knowledge by the defendant of the existence of the relationship, (3) intentional acts on the part of the defendant designed to disrupt the relationship, (4) actual disruption of the relationship, [and] (5) damages to the plaintiff proximately caused by the acts of the defendant.
Tort of Intentional Interference with Contractual Relations
The elements of an intentional interference with contractual relations claim are (1) a valid contract between plaintiff and a third party; (2) defendant's knowledge of this contract; (3) defendant's intentional acts designed to induce a breach or disruption of the contractual relationship; (4) actual breach or disruption of the contractual relationship; and (5) resulting damage.
Tort of Intentional Infliction of Emotional Distress
DMCA Section 512(f)
(f) MISREPRESENTATIONS- Any person who knowingly materially misrepresents under this section--
(1) that material or activity is infringing, or
(2) that material or activity was removed or disabled by mistake or misidentification,
Tort of Defamation
The elements of defamation are (1) a publication to one other than the person defamed; (2) a false statement of fact; (3) that is understood as being of and concerning the plaintiff; and tending to harm the reputation of plaintiff.