Adobe threatening to sue me over selling copies of Lightroom 5 marked not for resale

I'm an IP attorney, and I think you're a victim of a spamigation:

http://en.wikipedia.org/wiki/Spamigation

Below is solely my opinion, and do not use this as a legal advice. If you received a letter such as this, PM/message me separately and I can advise what to do. I hope OP found a good lawyer that can resolve the matter cleanly for him. Best of luck to OP.


Johnson & Pham have at least several major clients, including Product Partners, LLC - the makers of the P90X, BeachBody Fitness, and Your Baby Can, LLC - the makers of Your Baby Can Read, Your Baby Can Think, and now Adobe.

Johnson & Pham, in their normal course of business are known to send emails and snail mail to people who have sold, or attempted to sell, their client's products online, especially through eBay. These emails/letters accuse the recipient of selling counterfeit products bearing the trademark of their clients and also of violating copyright laws. These letters usually demand the recipient cease and desist selling such products and demand a payment of roughly $1,000 or else!

A Google search of "JOHNSON & PHAM" (using the quotes to eliminate posts that have nothing to do with the law firm, that simply contain both the words Johnson and Pham) yields over 34,000 results.

Most of these posts were made by people who bought the legitimate products from the respective companies and no longer want or need them, and attempted to sell them through eBay. Certainly, some of the posts might be by people who have attempted to sell counterfeit goods, but it is my belief they are in the minority.

For someone who has never dealt with the legal system and has never been sued, these letters can be VERY SCARY and cause people to lose sleep, cause excess stress, or even cause tension within their families. From the internet posts, we can guess that HUNDREDS, or even THOUSANDS of people receive such letters each year.

These lawsuits all have several things in common, but the ONE THING that jumped out at me is that in each and every case CHRIS JOHNSON of Woodland Hills, California made a PayPal purchase of the product. The PayPal payment screen printout is attached as an exhibit in every case. Chris Johnson is THE Johnson in Johnson & Pham.

The letter made some very strong accusations that are simply not true, and cannot be proven in the court of law. There is no proof of any counterfeit item being sold on ebay other than Mr. Johnson's statement that he allegedly purchased the item, and he allegedly sent the item for analysis, and the item was then allegedly declared as a counterfeit by Adobe.

Assuming the allegations of the item being a counterfeit is true, then this creates a very serious and large implication to J&P's client (Adobe) and several other large players in the online wholesale business. Allow me to explain.

OP legally purchased the software from an online retailer known as BuyDig.com. BuyDig.com has been around since 2000, and have been selling various items online. OP then purchased the Adobe Software from the website during an online promotion that was featured on SlickDeals.com, and was brought to BuyDig's website. OP should have a true and correct copy of the purchase invoice to prove that he legitimately purchased the software.

I now assume OP received the package from BuyDig, and OP kept the original packaging of the software. OP did not inspect the software because OP was under the assumption that it purchased from a well known retailer that the software is in a working condition and was not a counterfeit software. OP decided that OP did not need the software, and sold the item on eBay, at which point Mr. Johnson purchased the item from OP.

Since OP did not open, inspect, or alter any of the packaging of the software sent to OP, assuming what Mr. Johnson alleged is true for a moment, then OP purchased a counterfeit software online from BuyDig, and OP is not the only person who purchased said counterfeit software. This means BuyDig has been selling massive amounts of counterfeit software for a while, and we just discovered them doing so. In addition to BuyDig, now SlickDeals, FatWallet, and other similar deal news websites are also potentially liable for false advertisements of counterfeit items. THIS IS HUGEEE!!!!111!

It is unthinkable that a large scale online retailer located in the United States would be so reckless in openly selling pirated copies of famous, well known software. The liability would be enormous, and if this sees the light of day, we may see an Enron grade scandal and fallout coming out of this scenario.

It is equally unthinkable for Adobe to not immediately take action upon discovering that a major American online retailer is selling counterfeit, pirated copies of their software. We would have heard a press release from Adobe, because Adobe is also indirectly liable if the pirated copies of the product contain malicious software.

This scenario blows my mind, such that I had to consider the only other possibility: The allegations of the Cease and Desist Letter is false, and the software in question is actually a legitimate copy sold by BuyDig. Therefore, Johnson & Pham's claims are false, and if they file this suit in a court of law, they are misrepresenting the facts to the court. Very common spamigation tactics here.

Johnson & Pham are notorious for sending cease and desist letters that allege sales of counterfeit products of their clients, without any substantial proof of such claims. As a matter of fact, the cease and desist letters are usually prepared from a template, where they modify the name, date, and address of the recipients, and everything else substantially stay the same, including the amount demanded. There is no substantial proof of the item being a counterfeit other than Mr. Johnson's allegation that it was sent to the manufacturer and was deemed false. I seriously doubt Adobe can make such a mistake like this.

I have conducted an extensive research on the issue, and I have not found any reference that any Adobe software sold by BuyDig was discovered to be a pirated copy by anyone online. A pirated copy of the software would either have failed the online authentication of Adobe's sophisticated DRM system, or it would involve complex steps that require considerable computer expertise to perform.

Since reading this post, I have spoken to customer representatives from BuyDig, and PC Treasures LLC. PC Treasures LLC is the name of the company who supplied the bundled software, and their contact information is printed on the front of the packaging of the software (you can see it if you zoom in on the ebay screenshots). In both cases, the representative I spoke with on the phone verified and assured that their software is legitimate, and was supplied directly from Adobe. I have no reason to believe they are not telling the truth, but OP should not hesitate to name them as parties to the suit in order to prove OP's innocence in this matter. I am sure Adobe will be delighted to hear that their distributors and wholesalers are being involved in a baseless counterfeit allegation suit in a US District Court.

At this point, the cease and desist letter and draft complaint hinge solely upon the nature of the software. If the software is indeed a counterfeit, then we must name BuyDig, PC Treasures LLC, and SlickDeals as co-defendants in order to get the bottom of the matter. OP should refuse to be held liable for purchasing a counterfeit item that OP had no expectation nor knowledge that it was a counterfeit, and in turn selling said item because OP had no knowledge of it being a counterfeit item. If OP purchased a pirated software, then OP should seek for indemnification and damages for such misrepresentation.

On the other hand, if the software is indeed a legitimate copy, then Johnson & Pham have made serious misrepresentations on the C&D letter, and if it were to file a suit knowingly to be false, Johnson & Pham are liable for Rule 11 sanctions, not to mention defamatory action, vexatious litigation, harassment, and will seriously tarnish the Adobe's reputation as a professional software provider.

OP should now respectfully request Johnson & Pham to stop any further attempts of harassment, unless Johnson & Pham can substantiate the nature of their allegations by showing additional evidence that the software is indeed a counterfeit. If OP does not receive any substantial proof that can support Johnson & Pham's allegations within 10 calendar days from the date of this letter, then Johnson & Pham agrees that the matter is resolved, and they agree not to harass or attempt to file an action against OP regarding this matter in the future.


Again, this is not an advice, but this is my conclusion based on reading OP's post.

/r/legaladvice Thread