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Background - Got Nest recently but decided against using it (went with another brand) and decided to list it on Amazon to sell it. Got the following notice via email -
Legal notice said: To Whom It May Concern:
We have been retained by Nest Labs, Inc. ("Nest"), its affiliates and licensor, in regard to issues related to your improper and tortious sale and commercial distribution of Nest products through Amazon.com. As you are aware, Nest develops, manufactures, and sells products throughout the world, including the United States. Nest sells products directly to customers through its network of Authorized Nest Dealers. Nest has and continues to designate significant resources to develop and maintain its products’ national and international image. Through this market of Nest Dealers, Nest has fostered a recognized image of quality and customer support.

All Authorized Nest Dealers are required to execute a Dealer Agreement whereby they agree in the manner in which they must promote and sell Nest products in order to maintain and foster Nest brand equity. The Dealer Agreements limit Authorized Nest Dealers to selling Nest products to the end user. Nest has no record that it has authorized your business to resell its products. Unauthorized Resellers who induce Authorized Nest Dealers to sell Nest products to them tortiously interfere with the Dealer Agreement.

Please let us know by xx/xx/xxxx by return mail or fax what steps you are taking to discontinue your tortious interference. This letter is sent without prejudice as to the other rights and remedies available to our client, including without limitation, an accounting for damages and profits, in the event that litigation is necessary.

Sincerely,
 


I removed the listing but anything else I should do?
 

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I had to remove a lot of post that brought the discussion of this thread way off topic from the OP. It is now under mode... (more)

Neilium (Jul. 25, 2016 @ 7:46p) |

Thank you Neilium.  I apologize for my off-topic and inappropriate posts.

cleanbeat (Jul. 26, 2016 @ 1:03a) |

I know, can you believe these people?

So who tattled?

Crazytree (Jul. 26, 2016 @ 1:20a) |

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I got something similar when I listed a container of Isagenix drink powder on eBay a few years ago. I told them to pound sand, but I used much, much more colorful language than that.

areseller said:   Background - Got Nest recently but decided against using it (went with another brand) and decided to list it on Amazon to sell it. Got the following notice via email -
Legal notice said: To Whom It May Concern:
We have been retained by Nest Labs, Inc. ("Nest"), its affiliates and licensor, in regard to issues related to your improper and tortious sale and commercial distribution of Nest products through Amazon. com. As you are aware, Nest develops, manufactures, and sells products throughout the world, including the United States. Nest sells products directly to customers through its network of Authorized Nest Dealers. Nest has and continues to designate significant resources to develop and maintain its products’ national and international image. Through this market of Nest Dealers, Nest has fostered a recognized image of quality and customer support.

All Authorized Nest Dealers are required to execute a Dealer Agreement whereby they agree in the manner in which they must promote and sell Nest products in order to maintain and foster Nest brand equity. The Dealer Agreements limit Authorized Nest Dealers to selling Nest products to the end user. Nest has no record that it has authorized your business to resell its products. Unauthorized Resellers who induce Authorized Nest Dealers to sell Nest products to them tortiously interfere with the Dealer Agreement.

Please let us know by xx/xx/xxxx by return mail or fax what steps you are taking to discontinue your tortious interference. This letter is sent without prejudice as to the other rights and remedies available to our client, including without limitation, an accounting for damages and profits, in the event that litigation is necessary.

Sincerely,


I removed the listing but anything else I should do?

  Yeah, relist it.

Predicatively, you will have a lot of people on FWF to act as the internet tough guy. As much as I hate it, don't treat it lightly. See what happened here:

https://www.fatwallet.com/forums/finance/1336470/


It makes quite a difference if you sell it as New or Used. How did you had it listed, OP?

jayK said:   http://www.nolo.com/legal-encyclopedia/the-first-sale-doctrine.h... 

Know your rights.

  
And be ready to spend more than the retail price of the Nest defending your rights.

ZenNUTS said:   Predicatively, you will have a lot of people on FWF to act as the internet tough guy. As much as I hate it, don't treat it lightly. See what happened here:

https://www.fatwallet.com/forums/finance/1336470/

Just like I never bought a Netgear product after that thread, Nest just made my never buy list.

Guess I better start liking Ecobee...

ZenNUTS said:   Predicatively, you will have a lot of people on FWF to act as the internet tough guy. As much as I hate it, don't treat it lightly. See what happened here:

https://www.fatwallet.com/forums/finance/1336470/

  Translation:  Let them bully you because they might pay lawyers to harass you.

DTASFAB said:   
ZenNUTS said:   Predicatively, you will have a lot of people on FWF to act as the internet tough guy. As much as I hate it, don't treat it lightly. See what happened here:

https://www.fatwallet.com/forums/finance/1336470/

  Translation:  Let them bully you because they might pay lawyers to harass you.

  That's very helpful.  

ZenNUTS said:   It makes quite a difference if you sell it as New or Used. How did you had it listed, OP?
  
I listed it as NEW.

----------

Thank you for the replies guys. It's interesting that they cite "Tortious interference" in their claim even though first-sale doctrine should let me sell what I legally own.

At the end of the day though, it doesn't really matter who's right and who's wrong until the very very end. And anyone can sue anyone for any reason at any time. I just don't have unlimited time or funds to take on a multi-billion dollar behemoth (Google owns Nest) and I'm trying to avoid pissing off the wrong people. Even though I might be proved innocent/right in court their suit could still cost me four/five/six figures if they declare a legal jihad against me (I can see why they would if I question their sexual orientation).

Anyway, some things in life are just not worth it so I'm not going to list Nest again.

The only question is do I need to reply to them stating "I have pulled the listing and won't sell Nest on Amazon again?"

I wouldn't tell them anything. If you don't list it again, they can't prove you listed it again. You have no obligation to respond to their cease and desist except (possibly) to cease and desist.

ETA: actually I would instruct them in writing to foxtrot oscar and let them waste their time trying to catch you re-listing.

I would suggest posting the names and contact information of the law firm/lawyers who signed the letter, I'm sure they would love to hear from the internet.

A Craigslist listing might be lower profile.

They're saying that you're a professional reseller and you induced an authorized dealer into wholesaling Nest thermostats to you in violation of their contract with Nest.
I'd just tell them they're barking up the wrong tree, on the wrong planet.

ZenNUTS said:   
DTASFAB said:   
ZenNUTS said:   Predicatively, you will have a lot of people on FWF to act as the internet tough guy. As much as I hate it, don't treat it lightly. See what happened here:

https://www.fatwallet.com/forums/finance/1336470/

  Translation:  Let them bully you because they might pay lawyers to harass you.

  That's very helpful.  

It's at least as helpful as, "Might is right and the ruthless shall inherit the earth."

It's at least as helpful as, "Let the other fighter win just by staring you down because he has bigger muscles than you.  Run away before he even has a chance to hit you, because it will HURT."

It's at least as helpful as, "Don't even bother trying, because you will fail, and you'll lose more if you fight and lose than if you just give up right now."

It's at least as helpful as, "Take everybody else's shit and let them walk all over you because you're powerless."

jayK said:   http://www.nolo.com/legal-encyclopedia/the-first-sale-doctrine.h... 

Know your rights.

Be careful. Nest is IP (software) and a service more than it is a thermostat. The software is most likely licensed, not owned, and likely has protective covenants in the EULA that prevent an end user from doing anything but using it. I would not be surprised if the EULA set forth that the Nest thermostat itself is considered IP and is only to be used with their servers and service which could be discontinued at any time without any notice. 

All that being so, I would not respond and ignore the nonsense about tortious interference. Unless I missed it, you didn't say how or where you obtained the Nest, so unless you obtained it wholesale, and induced someone to do so (which may be a breach of their agreement with Nest), it's not a cause of action against you.

I recently had the same problem from some seller who had the us rights to sell this camera product. I told him to show me the agreement where he holds the rights to be the us distributor of this product and I will happily remove the item. He couldn't. Amazon sent me the product by accident and didn't want it back and I had no use for it either when I asked if they wanted me to send it back in chat. I continued to harass them everyday with an Amazon email stating for them to send it to me and I got nothing. Then I got bored so I stopped. End of pointless story.

I had that from the Misfit company (fitness trackers). They would send the message 2-3 times per day. At first I ignored it, then I started writing love poems back, asking them to marry me, etc, etc.

I sold them all and nothing came of it.

Just list it as Used but in the description say unopened box.

Hence you are protected.

While nest is owned by Google, and hence Google doesn't sue end users to the ground...yet...don't get caught up like those Netgear people did.

Dear Nest, Shitty legal mill who is sending me this toilet paper, et al.,

Have your community college law professor explain the legal concept known as the "First Sale Doctrine". Oh, and next time you have more legal papers for me please print it on soft paper. I'm running low on toilet paper right now.

If you continue with the vexatious and merit less legal threats I will contact your state's bar and file a formal complaint that may result in sanctions. 

Screw yourself with a cactus.

Very Truly Yours,
AreSeller
 

IANYL, but the tortious interference claim is bunk. One of the required elements is intent to interfere with the authorized reseller contract, and you have none (unless you are leaving something out of your posts).

This could be a closer question if your were trying to be a bulk reseller of Nest products. (Even then, the claim seems quite weak, and subject to the first sale defense, etc.) Nest probably spams these letters out to everyone who lists a Nest product on Amazon as a scare tactic. 

Ignore the letter and carry on.

vadeltachi said:   Be careful. Nest is IP (software) and a service more than it is a thermostat. The software is most likely licensed, not owned, and likely has protective covenants in the EULA that prevent an end user from doing anything but using it. I would not be surprised if the EULA set forth that the Nest thermostat itself is considered IP and is only to be used with their servers and service which could be discontinued at any time without any notice. 
OP did not open the package and thus is not bound by any EULA.

jayK said:   
vadeltachi said:   Be careful. Nest is IP (software) and a service more than it is a thermostat. The software is most likely licensed, not owned, and likely has protective covenants in the EULA that prevent an end user from doing anything but using it. I would not be surprised if the EULA set forth that the Nest thermostat itself is considered IP and is only to be used with their servers and service which could be discontinued at any time without any notice. 
OP did not open the package and thus is not bound by any EULA.

 Maybe OP did or didn't. Doesn't say. And, there's more binding one to the EULA than opening the package with a service-based product like Nest.

i got a similar email from Julbo when reselling their sunglasses (new, unopened) on Amazon. I already sold 40 of them lol.

ZenNUTS said:   Predicatively, you will have a lot of people on FWF to act as the internet tough guy. As much as I hate it, don't treat it lightly. See what happened here:

https://www.fatwallet.com/forums/finance/1336470/

  Oh, right, what happened to the Netgear guy?

areseller said:   Background - Got Nest recently but decided against using it (went with another brand) and decided to list it on Amazon to sell it. Got the following notice via email -
 

  What legitimate company or lawyer sends legal notices by email? This almost wants me to go out and buy a Nest to list online just to screw with them.

atikovi said:   
areseller said:   Background - Got Nest recently but decided against using it (went with another brand) and decided to list it on Amazon to sell it. Got the following notice via email -
  What legitimate company or lawyer sends legal notices by email? This almost wants me to go out and buy a Nest to list online just to screw with them.

  Well if you are selling on Amazon, they're not going to have your street address

Then how do they send you a summons?

atikovi said:   Then how do they send you a summons?
  You asked me an easy question and I gave you an answer

Simply reply that you are not claiming to be a distributor, but only selling one purchased in error. Advised them you have not opened the package and that the item is in new condition.
IF push comes to shove, contact Nest customer service who I have found to always be reasonable and responsive.

Maybe I am behind the times, but is it that easy to be a seller in Amazon Marketplace that you decided to sell 1 item there vs. eBay or Craigslist? Or were you already a seller and you decided to also sell that 1 item there?

JW10 said:   Simply reply that you are not claiming to be a distributor, but only selling one purchased in error. Advised them you have not opened the package and that the item is in new condition.
IF push comes to shove, contact Nest customer service who I have found to always be reasonable and responsive.

  
I would take it one further, and ask them if they are offering to refund your purchase price since they are trying to refuse you First Sale rights.  You can always send them a copy of your retail purchase receipt if they actually manage to summons you.  Otherwise ignore them, email does not constitute service in any court that I am aware of.

In particular its fairly rude of them considering how many utilities give these away as part of a contract or new service agreement.  If I already have one I should have the right to sell the one my utility sent me.

List it as like-new and put in comments that its unused or unopened, whichever applies.  The only reason they cared is because it was listed as "New" and below retail price.

atikovi said:   Then how do they send you a summons?
  IANAL but they can sue you as a John Doe and subpoena your information from Amazon. Then they can amend the complaint and add you as a defendant.

Then, once they have your information they get to find where you physically are or serve you through an alternative service of process depending on state statute. It's completely impractical for them to spend thousands to accomplish all of this. 

 

alamo11 said:   
atikovi said:   Then how do they send you a summons?
  IANAL but they can sue you as a John Doe and subpoena your information from Amazon. Then they can amend the complaint and add you as a defendant.

Then, once they have your information they get to find where you physically are or serve you through an alternative service of process depending on state statute. It's completely impractical for them to spend thousands to accomplish all of this. 

 

Or they could buy the Nest from OP's AMZN listing and look at the return address.

Tortious interference? Maybe. What is their measure of damages? What is their profit on the sale of a unit... $20 maybe?

IANYL but if it were me I would respond with a one liner:

"NO HABLO INGLES"

lol. hilarious responses guys, thanks! Yeah it's completely new (factory sealed), never opened, never used.

The lawyers automatically assume that I got it from an authorized distributor (what if I received it as a gift from a friend or from a utility company?) and that I am aware (or should have been aware) of the NEST's contract with their distributors (I'm not).

I don't understand why some of your are asking me to list it as used/like-new. It's brand new still in shrink wrap so why should I lie about it being used?

It's simple really. If you go to WalMart, buy any merchandise/goods they're yours to keep and yours to sell forever. No agreement not to resell it has ever been created by anyone, with anyone, at any time.

I ran into a similar issue. I bought 25x of some item through a "non-official" channel. Listed them on Amazon and made a few sales. The "CEO" of the manufacturer starts sending me threats saying he is the only one allowed to sell them on Amazon.com or anywhere for that matter. I cite the fact that I'm allowed to sell what I damn well please, he gets pissed off. I send his emails to Amazon Seller Support, they ask me if I want to open a harassment case against them (well, against the company's seller account with Amazon). I didn't pursue it further, but Amazon's Seller Support actually seemed to scare the guy off.

areseller said:   lol. hilarious responses guys, thanks! Yeah it's completely new (factory sealed), never opened, never used.

The lawyers automatically assume that I got it from an authorized distributor (what if I received it as a gift from a friend or from a utility company?) and that I am aware (or should have been aware) of the NEST's contract with their distributors (I'm not).

I don't understand why some of your are asking me to list it as used/like-new. It's brand new still in shrink wrap so why should I lie about it being used?

It's simple really. If you go to WalMart, buy any merchandise/goods they're yours to keep and yours to sell forever. No agreement not to resell it has ever been created by anyone, with anyone, at any time.

  
Because as far as Nest is concerned its not new, and they won't honor a warranty for the buyer unless if came from one of their registered distributors.  When you are saying its "new" they are saying it cannot be "new" because its been owned.  They think of it like a car title -- once its been titled it can never be sold as new again even if it has no miles on it.

Normally you can use "common usage" and call an unopened box new, but they are basically insisting its already been owned by a retail customer and cannot be sold that way.  They can, if they want, refuse to provide transferable warranties.

The difference is if you CALL it like-new they won't bother you at all.  Price it $10 or so cheaper than a new one from a regular vendor and call it a day.

Skipping 46 Messages...
Neilium said:   I had to remove a lot of post that brought the discussion of this thread way off topic from the OP. It is now under moderation.
  I know, can you believe these people?

So who tattled?



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