DAC - Ok, Manditory / binding authority in the US even is not that clear cut - the SCOTUS is binding on all courts state and federal, federal appellate court decisions are binding only on other federal and state courts in that district, federal trial court decisions are binding on no one. The highest court in a state (In NY the supreme ct. is actually the trial court, so be careful with the court names) is binding on the lower courts in that state, and state appellate courts are binding on state trial courts. Outside this framework the authority is merely persuasive, say between states or between federal districts, etc. Most of the rest of the world is based on Code - everything is statutory. And decisions in the US have no bearing on courts in other countries, and their decisions not on our courts (except for ruth bader-ginsberg who has began to draw international law into our courts). That is a basic synopsis, msg. me again in about 5 weeks if you want a better description...Right now I am about to rip my eyes out looking at this stuff....
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US Customs seizure and nastygram from Rolex attorneys...
- Thread starter bartman888
- Start date
DAC - Ok, Manditory / binding authority in the US even is not that clear cut - the SCOTUS is binding on all courts state and federal, federal appellate court decisions are binding only on other federal and state courts in that district, federal trial court decisions are binding on no one. The highest court in a state (In NY the supreme ct. is actually the trial court, so be careful with the court names) is binding on the lower courts in that state, and state appellate courts are binding on state trial courts. Outside this framework the authority is merely persuasive, say between states or between federal districts, etc. Most of the rest of the world is based on Code - everything is statutory. And decisions in the US have no bearing on courts in other countries, and their decisions not on our courts (except for ruth bader-ginsberg who has began to draw international law into our courts). That is a basic synopsis, msg. me again in about 5 weeks if you want a better description...Right now I am about to rip my eyes out looking at this stuff....
And then in another couple of years you get to look forward to the Bar Exam. :hang:
Yep - It's all just an exercise in hypo's and theory 'till you punch your ticket.
Can I get my ticket punched? WAIT A MINUTE... what were we talking about again?
In the end who actually gives a rats ass. At some point there is going to be some shmuck who Rolex decides to make an example of. Just like the RIAA did when they sued all those college kids for millions of dollars.
Every once in awhile a property rights holder needs to flex their muscles and show that they are not turning a blind eye. But until they come knocking on my door, Im sure as hell not going to lose any sleep over it. IN FACT, in honor of this thread I ordered my first Rolex for importation just the other day (seriously)!
It left China yesterday and I should have it tomorrow. SO THERE ROLEX.... SUCK THAT!
In the end who actually gives a rats ass. At some point there is going to be some shmuck who Rolex decides to make an example of. Just like the RIAA did when they sued all those college kids for millions of dollars.
Every once in awhile a property rights holder needs to flex their muscles and show that they are not turning a blind eye. But until they come knocking on my door, Im sure as hell not going to lose any sleep over it. IN FACT, in honor of this thread I ordered my first Rolex for importation just the other day (seriously)!
It left China yesterday and I should have it tomorrow. SO THERE ROLEX.... SUCK THAT!
- 30/3/08
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Thanks for the advice and legalese from everyone. I'm not responding to the attorney letter so we'll see how this pans out.
Here's a quick recap on my lessons learned:
1) Limit shipments to 1-2 items
2) Don't ship to a traceable address
3) Don't accept certified letters
4) Don't respond to Customs letters - seizure results in forfeiture/destruction
5) Don't respond to manufacturer's attorney letters
6) There's no criminal liability for importation according to 17 USCS § 603
7) There's no customs fine unless the trademark holder can prove "importation of merchandise for sale or public distribution". If proven, the first penalty is retail value.
I'm still unclear if Rolex has a civil case against me, but I think their burden of proof is more difficult if no customs fine is levied against me. Quick Google searches indicate they go after distributors, not personal collectors.
The sad part for Rolex... I've been saving up for a gen Rolex, and I was buying different models to see which one fit my wrist/style the best. Looks like I'm getting an Omega Seamaster instead.
Here's a quick recap on my lessons learned:
1) Limit shipments to 1-2 items
2) Don't ship to a traceable address
3) Don't accept certified letters
4) Don't respond to Customs letters - seizure results in forfeiture/destruction
5) Don't respond to manufacturer's attorney letters
6) There's no criminal liability for importation according to 17 USCS § 603
7) There's no customs fine unless the trademark holder can prove "importation of merchandise for sale or public distribution". If proven, the first penalty is retail value.
I'm still unclear if Rolex has a civil case against me, but I think their burden of proof is more difficult if no customs fine is levied against me. Quick Google searches indicate they go after distributors, not personal collectors.
The sad part for Rolex... I've been saving up for a gen Rolex, and I was buying different models to see which one fit my wrist/style the best. Looks like I'm getting an Omega Seamaster instead.
Now that really summarizes our hobby in more ways than one. I think the Omega is better looking watch.
Your better off.
- 30/3/08
- 42,554
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Will the current Rolex company troll please take careful note of the above. Your loss, Omega's gain.
Col.
I think the Omega is better looking watch.
+1
Hypothetically, of course.
I have been a trial attorney for over 30 years, 11 of those in the United States Department of Justice. But I did not practice trademark infringement or import/export law. However, it seems clear to me that Rolex will always win because our courts will respect their trademark and seek to exclude all trafficking of counterfeits of that trademark. Counterfeit watches will be confiscated when found except at the discretion of the customs agent who is likely to let anyone come in wearing one counterfeit. The real interest of Customs and Rolex will be to stop the sale of counterfeit watches with the assumption those sales, if not stopped, will reduce Rolex sales and cheapen their brand image. When it comes to a counterfeit buyer vs. Rolex in court, I do think Rolex will always win. It is just a matter of odds as to whether (and/or when) Rolex will decide to make an example of someone by suing them. We are not free to purchase counterfeit goods although I don't think it is illegal to have possession of a counterfeit watch; only illegal to sell it or to distribute it publicly. These items are made in China because China, as a Communist country, does not respect property rights such as trademarks. However, soon (maybe 10 years or so) China will want to enter the normal world and will have to start enforcing trademark infringement law as a price of entering the normal world of international trade. So I expect it will become harder and harder to obtain replica watches in the future. Better stock up now while we still can!
A word of advice to US residents. The best way to avoid any problems with customs is to buy only from people located in the US so the watch is just going through normal US mail and not going through customs at all. That means all those $50-$100 price range watches advertised on Chinese websites aren't available to us without personal risk. As far as I know there have been only three places to obtain replicas in the US other than through the member sales area for watches. I have purchased from each of those three US source, plus the member sales area, plus Chinese dealers, plus Asian dealers. So far no problems, but I wonder if my time is running out because with each purchase from China I take another chance of Customs problems. So increasingly I am just buying watches which already are in the US. I am willing to pay more money to avoid any customs risk.
A word of advice to US residents. The best way to avoid any problems with customs is to buy only from people located in the US so the watch is just going through normal US mail and not going through customs at all. That means all those $50-$100 price range watches advertised on Chinese websites aren't available to us without personal risk. As far as I know there have been only three places to obtain replicas in the US other than through the member sales area for watches. I have purchased from each of those three US source, plus the member sales area, plus Chinese dealers, plus Asian dealers. So far no problems, but I wonder if my time is running out because with each purchase from China I take another chance of Customs problems. So increasingly I am just buying watches which already are in the US. I am willing to pay more money to avoid any customs risk.
I did a quick search last week on this thread issue and I was unable to find a case where rolex has sued an purchaser of a replica watch. There are hundreds of cases where they have sued successfully to close websites and recover damages against websites that display their trademarks and symbols and people who sell replicas in the US as dealers.
My favorite was a case where they closed down a stip club in Michigan called the Rolex club. I think it highly unlikely they will pursue a single individual purchase.
My favorite was a case where they closed down a stip club in Michigan called the Rolex club. I think it highly unlikely they will pursue a single individual purchase.
Then you understand my pain about this time of year... and why I only ran the statutes on lexis rather than getting into case law - like I have time, or want to even get near the giving advise line...At least tell me I will still be upright after they get done with me in a couple years....
I agree with Romaleo: it is unlikely (but not certain) that Rolex will go after an individual once they are sure they actually are dealing with an individual and not an importer who then sells the watches to others. Likely it is a matter or "bang for the buck" in the legal fees Rolex is willing to spend to stop trademark infringement. I am sure they have no sympathy for individuals like us. It didn't cost them much to send one letter; it will cost them thousands to sue someone for trademark infringement. I too have seen lots of cases where Rolex shut down websites (actually getting ownership of the domain name transferred over to them) and shut down stores selling reps in the US (but some sidewalk venders seem to escape the reach of the law). But I have not seen cases against individuals. However, I did see one news article about a guy (from California, I think) who returned from a trip to China with five Rolex reps in his suitcase. Customs confiscated them and sent him a bill for something like $20,000.00! There is no reason customs couldn't do the same for reps confiscated from a package. It all depends upon whether or not someone in Customs decides to "crack down" on this issue and whether or not Rolex is successful in setting off their "enforcement costs" on the US Government. I think Customs decided not to pursue the fine against this guy but I don't remember the reason of if he had to hire an attorney to defend himself. Each country will have its own laws and its own enforcement policy but if you live in the US the only really safe way to buy a rep is to purchase it from someone selling it here and not then having it shipped to you from China. It is all a matter of odds. What are the odds? 10,000 to 1? 100,000 to 1? 1,000,000 to one? or less? I just don't know. But I cannot advise anyone to get their reps from out of the country with any assurance that they will never get into any trouble for doing so. Sorry. The cheap Chinese website reps do carry a risk and not just of getting the wrong watch or getting a watch that doesn't work.
SpaCityHustler: If by pain at this time of the year you are referring to Taxes due, I very much feel your pain. The tax code is too complex and has become a welfare act for accountants. It should be simple enough that any high school graduate can do his or her own taxes. A "flat tax" would accomplish that. Anything more complex than can be done by any high school graduate with a C average is an injustice to the American public.
SpaCityHustler: If by pain at this time of the year you are referring to Taxes due, I very much feel your pain. The tax code is too complex and has become a welfare act for accountants. It should be simple enough that any high school graduate can do his or her own taxes. A "flat tax" would accomplish that. Anything more complex than can be done by any high school graduate with a C average is an injustice to the American public.
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as i posted earlier in this thread it's not illegal in the usa to purchase a replica, it is illegal to import or sell.