No Vorys; Be Happy

[legorunner]

8 hours ago, vasp said:

Maybe I should just close all non-retired sets for a while. Those don't sell anyway at the prices desired to make some $

I do wonder if they are targeting certain current/non retired listings at the moment. No inside information, just speculating. If you already received the letter I'm not sure if closing listings will do much unfortunately. Certainly can't hurt to try. 

13 minutes ago, marcandre said:

https://amazonsellerslawyer.com/blog/amazon-seller-suspended-lego-ip-complaint/

Interesting, that blog is from 2019. I thought that this was a relatively new occurrence for LEGO sellers to be targeted. It sounds like the the number has picked up significantly recently, but still, good information. Thanks for sharing. 

[brickology101]

Perhaps this situation could be resolved with a smart disclaimer:

Xkdkdk (seller name) is not a sponsored LEGO dealership. Although quality control measures from LEGO sponsored dealerships could not be implemented the set is materialistically the same and was stored with care in a pet free and dust free environment. Buyer will be reimbursed if the purchase is unsatisfactory in any ways.

Or something like that…

Maybe bad at first but when there isn’t enough supplies during the holidays and once buyers realize they are getting the same sets as before it will get better.


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[brickology101]

Perhaps this situation could be resolved with a smart disclaimer:

Xkdkdk (seller name) is not a sponsored LEGO dealership. Although quality control measures from LEGO sponsored dealerships could not be implemented the set is materialistically the same and was stored with care in a pet free and dust free environment. Buyer will be reimbursed if the purchase is unsatisfactory in any ways.

Or something like that…

Maybe bad at first but when there isn’t enough supplies during the holidays and once buyers realize they are getting the same sets as before it will get better.


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Or xdddss (seller name) is not an authorized distributor for LEGO. End. Simple as that. I do see this sometimes online not for LEGO but other items.


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[redcell]

24 minutes ago, brickology101 said:

Perhaps this situation could be resolved with a smart disclaimer:

Xkdkdk (seller name) is not a sponsored LEGO dealership. Although quality control measures from LEGO sponsored dealerships could not be implemented the set is materialistically the same and was stored with care in a pet free and dust free environment. Buyer will be reimbursed if the purchase is unsatisfactory in any ways.

Or something like that…

Maybe bad at first but when there isn’t enough supplies during the holidays and once buyers realize they are getting the same sets as before it will get better.


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That's not going to work and would actually make things worse for you because you would be admitting one of the key allegations of their claim (i.e. lack of quality control measures).  At the end of the day, what they're saying is that you cannot use our trademarks to sell our products unless we have authorized you to do so and if you do, you are violating the rights that we hold in those trademarks.  Whether they could get that to hold up in court is an open question and would depend on the evidence that they could marshal to demonstrate the need for whatever quality control measures they have put into place.  Given all that we know about knock-offs and counterfeits (which likely pales in comparison to what Lego knows), I don't think they would have a tall hill to climb in convincing a court or jury that they have an exigent need to implement whatever quality control measures they have implemented to control the sale of their products in order to protect their brand and brand rights.  Although I don't think that every federal judge out there would rule in their favor, this is the kind of issue/case/claim that would likely get traction with a large number of the judges on the federal bench.   

 

[Bricklectic]

1 hour ago, brickology101 said:

Perhaps this situation could be resolved with a smart disclaimer:

Xkdkdk (seller name) is not a sponsored LEGO dealership. Although quality control measures from LEGO sponsored dealerships could not be implemented the set is materialistically the same and was stored with care in a pet free and dust free environment. Buyer will be reimbursed if the purchase is unsatisfactory in any ways.
 

I dont get it.  Vorys argument is that lego can block unauthorized sellers. Youre literally making their job easier by agreeing that that is what you are.

[Mark Twain]

That's not going to work and would actually make things worse for you because you would be admitting one of the key allegations of their claim (i.e. lack of quality control measures).  At the end of the day, what they're saying is that you cannot use our trademarks to sell our products unless we have authorized you to do so and if you do, you are violating the rights that we hold in those trademarks.  Whether they could get that to hold up in court is an open question and would depend on the evidence that they could marshal to demonstrate the need for whatever quality control measures they have put into place.  Given all that we know about knock-offs and counterfeits (which likely pales in comparison to what Lego knows), I don't think they would have a tall hill to climb in convincing a court or jury that they have an exigent need to implement whatever quality control measures they have implemented to control the sale of their products in order to protect their brand and brand rights.  Although I don't think that every federal judge out there would rule in their favor, this is the kind of issue/case/claim that would likely get traction with a large number of the judges on the federal bench.   
 

But I am authorized to sell Lego products in new and used condition in Lego’s owned and operated online marketplace: BrickLink. Furthermore, Lego collects fees from each sale that I make on their marketplace. Thus, I am authorized by Lego to sell its product in new and used condition on their online marketplace and am under no obligation from Lego to limit my sale of their product solely to their online marketplace based on the terms of service agreement I digitally acknowledged and signed when I began selling their product on BrickLink.


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[redcell]

5 minutes ago, Mark Twain said:

But I am authorized to sell Lego products in new and used condition in Lego’s owned and operated online marketplace: BrickLink. Furthermore, Lego collects fees from each sale that I make on their marketplace. Thus, I am authorized by Lego to sell its product in new and used condition on their online marketplace and am under no obligation from Lego to limit my sale of their product solely to their online marketplace based on the terms of service agreement I digitally acknowledged and signed when I began selling their product on BrickLink.


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That's certainly an argument that you can make.

[brickology101]

Ok, never mind, this was based on reading the otter box court case details and one key argument that got traction with the jury was that the buyers were mislead into buying a product that ultimately wasn’t the product they thought they were buying. By clarifying to the buyer what they are buying I thought it could help.


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[Bold-Arrow]

I would start saving those statements by Lego that they don't have a problem with secondary market  sellers. 

[redcell]

7 minutes ago, brickology101 said:

Ok, never mind, this was based on reading the otter box court case details and one key argument that got traction with the jury was that the buyers were mislead into buying a product that ultimately wasn’t the product they thought they were buying. By clarifying to the buyer what they are buying I thought it could help.


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I get where you're coming from with the thought, but it's important to understand that when they talk about the consumer being "misled," they don't mean mislead into buying something that isn't made by Lego or is otherwise inauthentic (in terms of the pieces not being made by TLG).  Rather, they mean that the consumer is "misled" into buying something that doesn't come with the full backing that flows from whatever stringent quality control measures Lego puts into place.  The argument makes a lot more sense when you're talking about a product that comes with an express warranty that only runs to the initial purchaser.  In that scenario, the consumer is being misled because they think they're buying something that carries the manufacturer's warranty, when, in fact, they are buying from the person who the warranty protects and who is not able to pass the warranty onto them.  The argument is definitely awkward in this context, but I've spent enough time in federal courts to know that any such awkwardness can be easily overcome with the myriad stories that TLG will be able to marshal about all the ways in which their products have been counterfeited over the years and why they need to ensure that every product that reaches a consumer's hands is one that has only flowed through the hands of middlemen (distributors / retailers) who have agreements with TLG that ensure the quality of the product.  Throw in some references to China, lead paint, and children, and it becomes a tough argument to overcome.

[brickology101]

I would start saving those statements by Lego that they don't have a problem with secondary market  sellers. 

Good point. Also, How about opening a thread so we can all post pics of damaged sets as we all find them too often on shelves of some B&M stores. No names. Just to document how effective quality control is with some authorized sellers.


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[Mark Twain]

25 minutes ago, redcell said:

That's certainly an argument that you can make.

This was just a general rebuttal, but I think a much more straightforward and pointed response to Vory's specific allegation is that Lego takes no action on its online  marketplace in regard to the condition of it's product being sold in new and used condition by third party sellers and allows the general public to sign up for accounts to resell its product, knowing that these are coming from people's homes in a variety of storage conditions and include used pieces that are often commingled with other manufacturer's plastic bricks. Thus, their claim that a 3p seller is in violation of quality controls, trademark infringement, or issues related to authenticity appears lacking in substance. 

 

[Alpinemaps]

So I'll admit I haven't opened this thread before today, and only read the posts since Jan 1.  So apologies if some of this has already been covered, but:

1. Is there evidence that Vorys has actually filed any legal action (injunction, suit, etc) in any court?
2. Did anyone actually sign for any of these letters? Or did they just arrived via FedEx / USPS drop off without signature?
3. Has anyone looked up Vorys, called them, and asked if they actually represent LEGO?

Seems sketch if no one has actually signed for a letter. How do they know you actually received the letter? Proof of service, you know?

Also, if anyone called Vorys (or is planning on it), don't call the number on the letter. Actually look them up and cross verify the number before you call them. You don't have to identify yourself, but you can say that you've gotten a letter from their agency, and you're verifying that the letter actually came from them, and that you need to know if they really do represent LEGO, before you waste your attorney's time.

[vasp]

22 hours ago, river41 said:

was it nastier then the first one ?

No. Just another letter and they attached a copy of the first letter sent. same terminology.

[LegoBro]

3 hours ago, vasp said:

No. Just another letter and they attached a copy of the first letter sent. same terminology.

So what's your game plan going forward if you don't mind sharing? 

Edited February 18, 2022 by LegoBro

[vasp]

6 hours ago, LegoBro said:

So what's your game plan going forward if you don't mind sharing? 

TBH - I don't have one yet. Going to pull all the listings for Lego's that are in the market even though they are not QFLL.

I have to figure it out.

[Darth_Raichu]

6 minutes ago, vasp said:

TBH - I don't have one yet. Going to pull all the listings for Lego's that are in the market even though they are not QFLL.

I have to figure it out.

So what percentage of your inventory is LEGO ?

[vasp]

5 hours ago, Darth_Raichu said:

So what percentage of your inventory is LEGO ?

90%

[SleepingGiant]

We got the Vorys letter in back in January and immediately hired an IP attorney.  Our letter called out our presence on Amazon, eBay and Walmart but of course not on Bricklink.  We use a different store name on Amazon because we sell more than Lego but it was probably our business address that linked them together.  After my attorney spent a couple weeks getting the lay of the land understanding our position in the market, where we source our products, our quality control measures and near flawless customer service for 15 years, he recommended we respond with an 8 page "Thanks but no thanks" which was sent about 2 weeks ago.   At first I was nervous about responding in fear of putting a target on my back (knowing so many others are tossing the letter in the trash) but too much of my life has been dedicated to Lego for me to sit on my hands.   

Most of us reading this thread can legitimately say we are more knowledgeable about Lego products than most (if not all) of Lego's authorized resellers in the US.   I can also tell you with 100% confidence that by "us" reselling genuine Lego products and providing a 2nd life only adds to the perceived value of the Lego brand.  If Lego sliced the necks of ALL legitimate Lego resellers then Lego would quickly become nothing more than Mega Bloks with a shinier brick.  The perceived value of Lego would erode very quickly ...the parents who now justify buying a $350 Gunship by saying "I can probably sell this eBay in 2 years and get my money back" would no longer have this option and thus make better buying decisions.  This would also produce many more "pop-up shops" with a higher number of scammers and the market will have a tougher time determining the good sellers from the bad.

We are one of the good guys and treat Lego like part of the family so for us to be called out in this dragnet is very disappointing.  We intend on fighting this until we run out of resources.    

[redcell]

What size font did he use to take 8 pages to say "Thanks, but no thanks"?

Just kidding, but I am curious about it...was it 8 pages of legal argument or did the lawyer lay out a bunch of facts about you and your business?

[vasp]

3 hours ago, SleepingGiant said:

We got the Vorys letter in back in January and immediately hired an IP attorney.  Our letter called out our presence on Amazon, eBay and Walmart but of course not on Bricklink.  We use a different store name on Amazon because we sell more than Lego but it was probably our business address that linked them together.  After my attorney spent a couple weeks getting the lay of the land understanding our position in the market, where we source our products, our quality control measures and near flawless customer service for 15 years, he recommended we respond with an 8 page "Thanks but no thanks" which was sent about 2 weeks ago.   At first I was nervous about responding in fear of putting a target on my back (knowing so many others are tossing the letter in the trash) but too much of my life has been dedicated to Lego for me to sit on my hands.   

Most of us reading this thread can legitimately say we are more knowledgeable about Lego products than most (if not all) of Lego's authorized resellers in the US.   I can also tell you with 100% confidence that by "us" reselling genuine Lego products and providing a 2nd life only adds to the perceived value of the Lego brand.  If Lego sliced the necks of ALL legitimate Lego resellers then Lego would quickly become nothing more than Mega Bloks with a shinier brick.  The perceived value of Lego would erode very quickly ...the parents who now justify buying a $350 Gunship by saying "I can probably sell this eBay in 2 years and get my money back" would no longer have this option and thus make better buying decisions.  This would also produce many more "pop-up shops" with a higher number of scammers and the market will have a tougher time determining the good sellers from the bad.

We are one of the good guys and treat Lego like part of the family so for us to be called out in this dragnet is very disappointing.  We intend on fighting this until we run out of resources.    

Thanks for you post. Please keep us updated if you receive a response from Vorys.

[SleepingGiant]

The letter was 6 pages long and full of of baseless claims.  We responded to each and every one of them. 

For example, one of their main arguments to the First Sale Doctrine is material difference.  Everything we sell on Amazon and Walmart (including Collectible Minifigures) are sealed in the original factory packaging.... even if the listing says "opened to verify".   So it's baseless to claim we're selling a materially different product and the quality is the same as it was when it left the Lego factory.   For sellers that open packages ... well I could be swayed to see Lego's point of view.  We chose to do it this way from the beginning because it's almost impossible for a customer to claim we're selling counterfeit or used as new when they are cutting open the packages themselves.  This also tells me they've didn't do test buys or they'd know that. 

[ravenb99]

hmmm did they awake a sleeping giant????  

[redcell]

11 hours ago, SleepingGiant said:

The letter was 6 pages long and full of of baseless claims.  We responded to each and every one of them. 

For example, one of their main arguments to the First Sale Doctrine is material difference.  Everything we sell on Amazon and Walmart (including Collectible Minifigures) are sealed in the original factory packaging.... even if the listing says "opened to verify".   So it's baseless to claim we're selling a materially different product and the quality is the same as it was when it left the Lego factory.   For sellers that open packages ... well I could be swayed to see Lego's point of view.  We chose to do it this way from the beginning because it's almost impossible for a customer to claim we're selling counterfeit or used as new when they are cutting open the packages themselves.  This also tells me they've didn't do test buys or they'd know that. 

Typically, the material difference argument relies on a product warranty that is designed to only benefit the first person to purchase an item.  So, if a reseller buys from a retailer, they get the benefit of the warranty, but cannot then pass it on to the person that they sell the product to.  I think this is how they did it in the Otterbox case and it makes sense given that the end consumer is getting something different (in terms of the rights that come with the product) by buying from the reseller than they would buying from an authorized retailer.  As far as I know, Lego doesn't offer express warranties on its products so I'm not sure how they are planning to make out their material difference argument.

[Banjoman]

A little update.....I hired an attorney (teaches Trademark law at a major law school) who has reached out and had some back and forth contact with Vorys....our approach was to be pretty open in that I buy from authorized retailers including Lego, many times at full price,  I hold until they are unavailable on these platforms, and then I resell, with fulfillment through Walmart or another AUTHORIZED Lego retailer.  I voluntarily sent them a month of receipts showing $25K in legit purchases from Amazon/Walmart.   I have specifically asked how long I would need to hold inventory to be considered a retailer vs the need to be an authorized seller (and requested approval to be an authorized seller if required for these type of purchases.)  It seems a disclaimer of this was is being RESOLD as repurchased and as a collectors item.  

I hope I wasn't too open but sort of dumbed it down to anyone in the world can walk in Walmart and buy a set (or 200 of a set) and stick it in storage for two years and then resell it for twice the value.  I had pretty high volume (probably much smaller than people on here) , but I do not know that they can see that.  I also think they target the non-WFS or FBS sales where we ship and manage customer service.   Still waiting on the requested clarification, and we may not get it.    They did make it sound like if I immediately stopped buying, they would gladly let me sell out my legit inventory...but again no full clarification.