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Mcintosh lawyer harassing me - Part 2

171.64.154.218

The following is a response from Wayne Cooper, Mcintosh’s attorney explaining why my ad was revoked. He is aware it is being publicized so I assume it is meant to educate. Although his tone, language, and personal attacks suggest we've been in constant communication, it is my first contact with him since the removal of my ad. What I have kept secret until now is, I HAVE PROOF THAT SUBSTANTIATES MY CLAIM. Ebay has supplied me the text of my ad prior to removal. Once posted, there will be little doubt to the validity of my statements. More interestingly, I believe it proves Mr. Cooper on the behalf of Mcintosh falsified facts in the process of having my ad removed which, according to the Ebay notice is, under penalty of perjury. I have no hidden agenda in this, in fact, the resale of my amps which I intend to sell will plummet. I simply feel my rights were jeopardized and the principle at stake is worth fighting for.

To be continued…

Mr. Vu:

I do not propose to get into a dialogue with you. I explained to you in my earlier correspondence that advertising an MC501 as "only two weeks old" and "never installed" created the appearance that the unit was new and therefore within McIntosh's factory warranty, whereas it is clearly stated in the warranty (which you had, but your bidders did not) that coverage terminates upon resale. I asked that you clarify in your ad that the McIntosh warranty would not apply, so that potential purchasers would not be misled by your ad, and you refused to do so. In refusing, you placed yourself in the position of violating Section 43(a) of the Federal Lanham Trademark Act, as well as California's false advertising statute, by omitting from your ad a materially important fact about the advertised product. It was in order to remedy that violation, and not to interfere with you or your relationships, that I instructed eBay to terminate your auction. My actions were entirely consistent with the applicable laws and with eBay's well established policies.

Sellers like you, who would willingly conceal the facts about their products in order to maximize their sale price, and whose guiding credo is "let the buyer beware," are the very reason that McIntosh found it necessary some years ago to discontinue its long-time practice of allowing warranties to remain in effect regardless of a change of ownership. Your refusal to disclose the warranty restriction is no different from someone's use of a copyrighted stock photo of a new 501 to sell a unit which in actuality has suffered wear and tear.

Your contractual relationship with eBay, and your rights generally, are subject to the applicable laws. You are indeed free to sell you products, whether they be McIntosh products or anything else. However, there are numerous laws, both state and federal, that make it clear that you are not free to conceal from buyers material information about those products.

As far as other eBay sellers are concerned, I can assure you that your ad was in no way singled out. I check eBay daily, and if I find anyone advertising a McIntosh product in a manner which suggests that it is covered by the manufacturer's warranty, whether by calling it "new," "new in box," "only xxx months old," or in any other manner, I require the same disclosure that I requested of you. In almost all instances, the sellers comply with my request, because they recognize both that they would be in legal jeopardy if a purchaser bought the unit thinking it was warranted and then later found that the seller had knowingly withheld that information, and also because they recognize that it is morally wrong to mislead people, whether by affirmative lies or by concealment.

You chose instead to put yourself in the small minority of sellers who prefer to ignore their obligations, both legal and moral, and in doing so you bear the sole and total responsibility for your auction's having been terminated. Those few sellers who decline to correct their ads always, without exception, have their auctions terminated as you did. The only time this would not occur would be if I were unable to reach eBay before the auction closed.

I am fully aware that you have published our earlier correspondence on the internet, and I welcome your doing so with this message as well. Perhaps it will open the eyes of your readers to the real facts underlying your complaint. Insofar as the various regulatory agencies mentioned in your message are concerned, I would be most surprised to see any of them take the position that action provided for under the law is somehow wrong, whereas intentionally false and misleading advertising of products worth thousands of dollars is to be protected, but it is certainly your right to complain should you wish.

Finally, I have never indicated that your ads violated McIntosh's copyrights. Had there been a copyright violation, it would have been an additional basis for terminating the ad, but the absence of a copyright issue in no way relieves you of your other violations.

Now, I truly feel that I have exhausted my ability to try and explain these matters to you. If you still do not understand that it was entirely your own conduct that caused your ad to be terminated, and that you were treated exactly the same as everyone else who conducts themselves in this manner at the risk of the public, you will have to seek counsel from someone better able to communicate than I seem to be. Please do not contact me further, as I do not believe that further dialogue between us will be productive.

Wayne Cooper

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Topic - Mcintosh lawyer harassing me - Part 2 - Ethannnn 11:45:35 02/25/04 (248)
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