NSW Nike Cease and Desist Letter - How to Respond?

[SHARP]

1. Really Tim? If they were to point out that they prefer only certain retailers to be selling their goods it would be one thing, but they are demanding a good whack of money too. Please don't assume that because they are a big company they will automatically act within the rules at all times. [Inflammatory comment removed by Moderator]
2. I will repeat the question, which act do you think covers demanding money by means of deception?

[Inflammatory comment removed by Moderator]

 

[John R]

Hi @SHARP

1. Assuming that you are in NSW (and as correctly identified by @Tim W), the previous fraud offences that you referenced were repealed in 2010 by new sections - s192E-s192G of the Crimes Act 1900 (NSW).
2. You can learn more about these amendments at the Judicial Commission of NSW's Benchbooks website - Fraud Offences in NSW. Apologies in advance if the Benchbooks are technical - they are designed for judges and lawyers.
3. Is Nike's conduct a breach of one or more of the fraud offences in the Crimes Act 1900 (NSW). You should review each offence and attempt to identify the specific offence because only you know the entire circumstances of your situation. Keep in mind that you would need to prove any offence "beyond reasonable doubt". In addition, some fraud and related offences include the need to prove an element of "intent" by Nike or their representatives if they were to be found guilty of the offence.
4. In practice, it is unlikely, but not impossible, that you would be able to pursue Nike for a criminal offence unless you engaged a criminal lawyer to review your matter, assist you with your brief and then identify an appropriate police and prosecution resources that believed that your matter was "worth pursuing". You would generally be liable for legal costs as the matter progressed.
5. If you are inclined to engage a lawyer to pursue the matter, your money is likely to be better spent (per my earlier thoughts) on engaging an intellectual property (IP) lawyer to review Nike's cease and desist claim/s, respond to Nike and assist you to risk mitigate your online business as it continues to grow.

Hope this helps.

 

[SHARP]

Thanks for the reply John. At this stage I don't really want to pursue a criminal matter against Nike. After the dodgy way they have dealt with this I want nothing more to do with the company, products or suppliers. I would just like them to stop harassing me and demanding money (plus the closure of my website).

I think my next port of call may be having a legal agreement drawn up that states that I will not sell Nike products or pursue a legal case against them, in return for them ceasing their demands and not pursuing a case against myself. As you mentioned, only I know the full details of the case, and can assure you that I have concrete evidence of them being extremely deceptive, but do not wish to spend money pursuing cases against them (as also mentioned, I'm very small-time and do this as a hobby, so I don't want to spend a lot of time and money on such things, I just want to be left in peace).

Thanks for the helpful info regarding which legislation I will need to look into.

 

[John R]

Hi @SHARP,
How are you progressing with this matter?

 

[SHARP]

Hi John

Thanks for the follow up. Nike has accepted the terms I put forward and dropped the matter. I feel it was merely a bullying tactic, which they dropped as soon as they realised I wasn't going to roll over and that it wasn't worth pursuing.

 

[Roddy]

that is good to hear
Sharp can you pls help me and explain to me the steps you took i have the same problem but nike is charging me $6450
Accused of Selling Counterfeit Nike Soccer Jerseys on eBay | LawAnswers.com.au Legal Aid Forums

 

[ghostmutt]

Hi, I received a VERY similar email to you from Nike for football jerseys. I am basically in the same situation as you.
What was the outcome of your case? I don't mind sending them my stock, I just don't want to be obligated to pay the fee.

Any advice would be really really helpful. Thanks