Think You Could Buy a Real Cleveland Wedge for $30? It Would be Nice, But Get Real! Cleveland Golf Sues an Alleged Counterfeiter
Last week Roger Cleveland Golf Company, Inc. filed a lawsuit against Guangdong Yuedragon Casting Company, Ltd. ("Yuedragon") and Jack Dabing Wan ("Wan") alleging that they produced, sold, and shipped counterfeit Cleveland wedges to the United States.
The following paragraphs from the Complaint do a good job of explaining the events that led up to the lawsuit:
39. The Mystery Shopper purchased these clubs for a price of $30.00 USD each. See
transaction record attached hereto as Exh, F (identifying information of Mystery Shopper redacted).
40. The current Manufacturer's Suggested Retail Price ("MSRP") for each of these
clubs is as follows:
41. The Mystery Shopper transferred the purchase price for the four clubs purchased from Wan and Yuedragon, a total of $180.60 USD, including shipping and handling, from his credit card to Wan via www.Paypal.com, an on-line banking institution ("Paypal"), Id. The Paypal transaction number for the transfer of funds from the Mystery Shopper to Wan was: 1V.195192FA951204F. Paypal's transaction records indicate that the payment was sent to Dabing Wan at export@golfcluben.com. Id.
42. The 4 counterfeit clubs that had been ordered by the Mystery Shopper were received by the Mystery Shopper at his New York address. The 3 clubs purporting to be Cleveland Golf clubs were then forwarded to Cleveland Golf for testing.
43. Cleveland Golf examined the purported Cleveland Golf Clubs and determined that the clubs sold by Wan to the Mystery Shopper were counterfeit. Attached hereto as Exh, G is a series of photographs cataloging the differences between an authentic Cleveland Golf Club and one of the purported Cleveland Golf Clubs sold by Wan to the Mystery Shopper.
44. After continued and ongoing communication with Wan and Yuedragon, on or about January 24, 2008, Cleveland Golf’s Mystery Shopper made an additional purchase from Wan and Yuedragon. The Mystery Shopper purchased what purported to be a Cleveland Golf 588 DSG 56 Degree Wedge (the "Counterfeit Cleveland Golf Club").
45. The Counterfeit Cleveland Golf Club was purchased from Wan for a price of $30 USD, plus shipping and handling. See Paypal transaction record attached hereto as Exh. H (identifying information of Mystery Shopper redacted).
46. Cleveland Golf's MSRP for a genuine Cleveland Golf 588 DSG Wedge is $129.99 USD.
47. The Mystery Shopper transferred the purchase price for the Counterfeit Cleveland Golf Club, a total of $64.05 USD, including shipping and handling, from his credit card to Wan via www.Paypal.com. The Paypal transaction number for the transfer of funds from the Mystery Shopper to Wan was: 80M 11472U4455420E. Paypal's transaction records indicate that Wan's email address is export@golfclubcn.com. Id.
48. The Counterfeit Cleveland Golf Club arrived at the Mystery Shopper's New York address on or about February 7, 2008, via the EMS (a worldwide air freight service) with a tracking number EB006583675CN (Transit record attached hereto as Exh. I). The package containing the Counterfeit Cleveland Golf Club bore a label indicating that it had been sent from: No 38 Jzefang Road Liuzhou Czty Guangxicxz, China.
49. The Counterfeit Cleveland Golf Club was then forwarded to Cleveland Golf.
50. Cleveland Golf examined the Counterfeit Cleveland Golf Club it received from the Mystery Shopper and determined that it was also a counterfeit. Attached hereto as Exh. J is a series of photographs cataloging the differences between an authentic Cleveland Golf Club and the Counterfeit Cleveland Golf Club.
51. On February 13 and 15, 2008, Wan sent the Mystery Shopper emails inquiring as to whether the Mystery Shopper had received the golf club that he had ordered and indicating that Wan was ready to take more orders. See emails attached hereto as Exhs, K-L (identifying information of Mystery Shopper redacted).
52. In his communications with the Mystery Shopper, Wan has used a variety of email and web addresses, including: export@golfclubcn.com and export@wisecorp.en.
53. As of April 10, 2008, the "Who Is" information for the Domain Name
golfclubcn.com, used by Wan, is as follows:
54. "Wan Dabing" is also listed as the Administrator of www.golfclubcn.com, with a listed email address of wandabing2008@yahoo.com.cn; a phone number of +86.102031338-0 and a fax number of +86.102031338,
55. As of April 10, 2008 the "Who Is" information for the domain name www.wisecorp.cn lists wandabing2008@yahoo.com.ca as its administrative contact.
56. The sales by Yuedragon and Wan of counterfeit Cleveland Golf products to the Mystery Shopper are violations of Federal trademark law.
57. It is highly likely that Yuedragon and Wan's sales of the Cleveland Golf clubs to the Mystery Shopper are not the only sales that they have made or will make of counterfeit Cleveland Golf products to importers/resellers in the United States.
58. Given the manner in which Wan conducted his sales with the Mystery Shopper, including Wan's clear intention to sell products to the Mystery Shopper in bulk and Wan's ability to provide the Mystery Shopper with a pre-prepared price list containing a variety of trademarked goods, it is highly likely that Wan is engaged in the systematic bulk shipment of counterfeit goods bearing the Cleveland Golf trademarks into the United States. By advertising in English, selectively seeking relationships with existing Cleveland Golf distributors, and shipping worldwide, Wan and Yuedragon have targeted, not the individual consumer, but instead black market importers/resellers who will in turn defraud individual consumers in the United States, including specifically consumers in New York State.
59. Wan's statement that his products were "100% close to originals," accompanied by a price list that offered an array of products from Cleveland Golf at prices far lower than the MSRP, indicates to any purchaser of goods from Yuedragon and Wan that the goods being purchased are counterfeit.
60. It is a violation of Federal trademark law to import counterfeit goods into the United States.
61. It is a further violation of Federal trademark law to purchase a counterfeit product and re-distribute that product once it has been purchased.
62. Upon information and belief, the John Doe Defendants in this action have purchased, from Yuedragon and Wan, and have imported into the United States, counterfeit Cleveland Golf products to re-sell to additional distributors and/or to re-sell to unsuspecting consumers,
63. As described above, Wan maintains an account with Paypal, through which he conducts his unlawful transactions.
64. As described above, Wan maintains an account through Yahoo, through which he conducts his unlawful transactions.
65. Plaintiff expects that by examining the Yahoo and Paypal records of Wan's transactions, the Plaintiff will be able to determine the identities of the John Doe Defendants in this matter.
Pretty amazing allegations! How fun would it be to be Cleveland’s “mystery shopper!” Click HERE to read the Complaint, and click HERE to check out the exhibits, which contains some interesting material.
Another interesting golf litigation case to watch.
David Dawsey – Keeping an Eye on Counterfeit Golf Club Litigation
The following paragraphs from the Complaint do a good job of explaining the events that led up to the lawsuit:
23. Yuedragon and Wan have sold, and are presently selling, counterfeit products bearing the Cleveland Golf Marks from China to the John Doe Defendants in the United States including in New York State.
24. The John Doe Defendants knew and/or reasonably should have known that the products they purchased from Yuedragon and Wan, and imported into the United States, were counterfeit.
25. The Defendants' use of the Cleveland Golf trademarks is likely and intended to deceive and confuse consumers into believing that the products sold by Yuedragon and Wan and imported/resold by the John Doe Defendants are sponsored by, authorized by, associated with and/or originate from Cleveland Golf.
26. On information and belief the John Doe Defendants re-sold said counterfeit Cleveland Golf products to purchasers in the State of New York.
27. To protect its trademarks and to ensure that consumers are getting authentic Cleveland Golf products, Cleveland Golf hired a mystery shopper to purchase its products from a variety of sources in the marketplace.
28. Cleveland Golf’s mystery shopper is an individual resident of the State of New York (the "Mystery Shopper").
29. In or about November, 2007, an authorized Cleveland Golf distributor received an email solicitation from a counterfeit seller to become a potential distributor. The authorized distributor forwarded the solicitation to Cleveland Golf. In the solicitation, the counterfeit seller claimed to be an individual named "Jack" from the Guangdong Yuedragon Casting Company, Ltd., located in China. The solicitation included "Jack's" phone number, email address, and a link to a website, www.golfclubcn.com.
30. Yuedragon created sales leads to distribute its products on the worldwide web, specifically through the websites www.fuzing.com ("Fuzing website") and www.allproducts.com ("Allproducts website"). See excerpts from the Fuzing website, attached hereto as Exhibit ("Exh.") A; excerpts from the Allproducts website, attached hereto as Exh. B.
31. On the Fuzing website, Yuedragon lists Jack Wan as the contact person and states, "our monthly production capacity now stands at over 2000 sets [of golf clubs]." See Exh. A. Additionally, the Fuzing website also states; "our products are exported to countries and regions including Europe, America, Australia, and South East Asia." Id.
32. On the Allproducts website, Yuedragon holds itself out as a manufacturer based in China that exports its products throughout the world. See Exh. B.
33. On or about November 28, 2007, at the direction of Cleveland Golf, the Mystery Shopper made telephonic contact with Wan using the phone number listed in the solicitation. Wan and the Mystery Shopper spoke by telephone and Wan then responded to the inquiry by email, requesting that the Mystery Shopper send him an email to confirm their conversation.
34. On or about November 28, 2007, the Mystery Shopper sent an email to Wan requesting a product list. The email also indicated that the Mystery Shopper was interested in making an initial order for sample products, and that he had an interest in setting up bulk orders in the future. See email dated 11/28/07, attached hereto as Exh. C (identifying information of Mystery Shopper redacted).
35. That email was sent by the Mystery Shopper to the email address listed in the solicitation: exportagolfclubcn.com.
36. Later, on November 28, 2007, Wan responded from the email address, export@golfclubcn.com, to the Mystery Shopper's November 28, 2007, email as follows:
24. The John Doe Defendants knew and/or reasonably should have known that the products they purchased from Yuedragon and Wan, and imported into the United States, were counterfeit.
25. The Defendants' use of the Cleveland Golf trademarks is likely and intended to deceive and confuse consumers into believing that the products sold by Yuedragon and Wan and imported/resold by the John Doe Defendants are sponsored by, authorized by, associated with and/or originate from Cleveland Golf.
26. On information and belief the John Doe Defendants re-sold said counterfeit Cleveland Golf products to purchasers in the State of New York.
27. To protect its trademarks and to ensure that consumers are getting authentic Cleveland Golf products, Cleveland Golf hired a mystery shopper to purchase its products from a variety of sources in the marketplace.
28. Cleveland Golf’s mystery shopper is an individual resident of the State of New York (the "Mystery Shopper").
29. In or about November, 2007, an authorized Cleveland Golf distributor received an email solicitation from a counterfeit seller to become a potential distributor. The authorized distributor forwarded the solicitation to Cleveland Golf. In the solicitation, the counterfeit seller claimed to be an individual named "Jack" from the Guangdong Yuedragon Casting Company, Ltd., located in China. The solicitation included "Jack's" phone number, email address, and a link to a website, www.golfclubcn.com.
30. Yuedragon created sales leads to distribute its products on the worldwide web, specifically through the websites www.fuzing.com ("Fuzing website") and www.allproducts.com ("Allproducts website"). See excerpts from the Fuzing website, attached hereto as Exhibit ("Exh.") A; excerpts from the Allproducts website, attached hereto as Exh. B.
31. On the Fuzing website, Yuedragon lists Jack Wan as the contact person and states, "our monthly production capacity now stands at over 2000 sets [of golf clubs]." See Exh. A. Additionally, the Fuzing website also states; "our products are exported to countries and regions including Europe, America, Australia, and South East Asia." Id.
32. On the Allproducts website, Yuedragon holds itself out as a manufacturer based in China that exports its products throughout the world. See Exh. B.
33. On or about November 28, 2007, at the direction of Cleveland Golf, the Mystery Shopper made telephonic contact with Wan using the phone number listed in the solicitation. Wan and the Mystery Shopper spoke by telephone and Wan then responded to the inquiry by email, requesting that the Mystery Shopper send him an email to confirm their conversation.
34. On or about November 28, 2007, the Mystery Shopper sent an email to Wan requesting a product list. The email also indicated that the Mystery Shopper was interested in making an initial order for sample products, and that he had an interest in setting up bulk orders in the future. See email dated 11/28/07, attached hereto as Exh. C (identifying information of Mystery Shopper redacted).
35. That email was sent by the Mystery Shopper to the email address listed in the solicitation: exportagolfclubcn.com.
36. Later, on November 28, 2007, Wan responded from the email address, export@golfclubcn.com, to the Mystery Shopper's November 28, 2007, email as follows:
"Thanks a lot for your enquiry and nice talking to you on the phone! Can I know how you find us?
Enclosed please find our complete price list for your reference! But we have Cleveland wedges (cg10,cgl1,cg12, 588) and titleist wedges (by oil can finish) at 100% close to originals.
So please let me know which items you want to sample and I will come up with the total for you.
Thanks again!
Looking forward to hearing from you soon!"
Enclosed please find our complete price list for your reference! But we have Cleveland wedges (cg10,cgl1,cg12, 588) and titleist wedges (by oil can finish) at 100% close to originals.
So please let me know which items you want to sample and I will come up with the total for you.
Thanks again!
Looking forward to hearing from you soon!"
See email and attached price list, attached hereto as Exh. D (identifying information of Mystery Shopper redacted).
37. The Mystery Shopper responded on or about November 28, 2007, by email. The email included the following statement:
37. The Mystery Shopper responded on or about November 28, 2007, by email. The email included the following statement:
"I would like to order 4 sample clubs to start with, if all works out well then we can discuss the purchase of larger quantities."
See email attached hereto as Exh. E (identifying information of Mystery Shopper redacted).
38. After continued and ongoing communication with Wan, on or about November 29, 2007, Cleveland Golf's Mystery Shopper purchased from Wan and Yuedragon 4 golf clubs that purported to be the following:
38. After continued and ongoing communication with Wan, on or about November 29, 2007, Cleveland Golf's Mystery Shopper purchased from Wan and Yuedragon 4 golf clubs that purported to be the following:
(a) 1 Cleveland 588 RTG 56 Degree Wedge;
(b) 1 Cleveland CG 10 56 Degree Wedge;
(c) 1 Cleveland CG 12 56 Degree Wedge; and
(d) 1 Titlest Oil Can Finish 56 Degree Wedge.
(b) 1 Cleveland CG 10 56 Degree Wedge;
(c) 1 Cleveland CG 12 56 Degree Wedge; and
(d) 1 Titlest Oil Can Finish 56 Degree Wedge.
39. The Mystery Shopper purchased these clubs for a price of $30.00 USD each. See
transaction record attached hereto as Exh, F (identifying information of Mystery Shopper redacted).
40. The current Manufacturer's Suggested Retail Price ("MSRP") for each of these
clubs is as follows:
(a) 1 Cleveland 588 RTG 56 Degree Wedge
Cleveland Golf no longer carries this golf club. A new club, the CG12 DSG, took its place, The CG12 DSG has an MSRP of $138.00 USD for the steel version of this club and $163.00 USD for the graphite version of this club;
(b) 1 Cleveland CG 10 56 Degree Wedge - Cleveland Golf no longer carries this golf club;
(c) 1 Cleveland CG 12 56 Degree Wedge - The CG12 56 Degree Wedge has an MSRP of $138.00 USD for the steel version of this club and $163.00 USD for the graphite version of this club; and
(d) 1 Titlest Oil Can Finish 56 Degree Wedge -The MSRP for this Titlest club is $125.00 USD.
Cleveland Golf no longer carries this golf club. A new club, the CG12 DSG, took its place, The CG12 DSG has an MSRP of $138.00 USD for the steel version of this club and $163.00 USD for the graphite version of this club;
(b) 1 Cleveland CG 10 56 Degree Wedge - Cleveland Golf no longer carries this golf club;
(c) 1 Cleveland CG 12 56 Degree Wedge - The CG12 56 Degree Wedge has an MSRP of $138.00 USD for the steel version of this club and $163.00 USD for the graphite version of this club; and
(d) 1 Titlest Oil Can Finish 56 Degree Wedge -The MSRP for this Titlest club is $125.00 USD.
41. The Mystery Shopper transferred the purchase price for the four clubs purchased from Wan and Yuedragon, a total of $180.60 USD, including shipping and handling, from his credit card to Wan via www.Paypal.com, an on-line banking institution ("Paypal"), Id. The Paypal transaction number for the transfer of funds from the Mystery Shopper to Wan was: 1V.195192FA951204F. Paypal's transaction records indicate that the payment was sent to Dabing Wan at export@golfcluben.com. Id.
42. The 4 counterfeit clubs that had been ordered by the Mystery Shopper were received by the Mystery Shopper at his New York address. The 3 clubs purporting to be Cleveland Golf clubs were then forwarded to Cleveland Golf for testing.
43. Cleveland Golf examined the purported Cleveland Golf Clubs and determined that the clubs sold by Wan to the Mystery Shopper were counterfeit. Attached hereto as Exh, G is a series of photographs cataloging the differences between an authentic Cleveland Golf Club and one of the purported Cleveland Golf Clubs sold by Wan to the Mystery Shopper.
44. After continued and ongoing communication with Wan and Yuedragon, on or about January 24, 2008, Cleveland Golf’s Mystery Shopper made an additional purchase from Wan and Yuedragon. The Mystery Shopper purchased what purported to be a Cleveland Golf 588 DSG 56 Degree Wedge (the "Counterfeit Cleveland Golf Club").
45. The Counterfeit Cleveland Golf Club was purchased from Wan for a price of $30 USD, plus shipping and handling. See Paypal transaction record attached hereto as Exh. H (identifying information of Mystery Shopper redacted).
46. Cleveland Golf's MSRP for a genuine Cleveland Golf 588 DSG Wedge is $129.99 USD.
47. The Mystery Shopper transferred the purchase price for the Counterfeit Cleveland Golf Club, a total of $64.05 USD, including shipping and handling, from his credit card to Wan via www.Paypal.com. The Paypal transaction number for the transfer of funds from the Mystery Shopper to Wan was: 80M 11472U4455420E. Paypal's transaction records indicate that Wan's email address is export@golfclubcn.com. Id.
48. The Counterfeit Cleveland Golf Club arrived at the Mystery Shopper's New York address on or about February 7, 2008, via the EMS (a worldwide air freight service) with a tracking number EB006583675CN (Transit record attached hereto as Exh. I). The package containing the Counterfeit Cleveland Golf Club bore a label indicating that it had been sent from: No 38 Jzefang Road Liuzhou Czty Guangxicxz, China.
49. The Counterfeit Cleveland Golf Club was then forwarded to Cleveland Golf.
50. Cleveland Golf examined the Counterfeit Cleveland Golf Club it received from the Mystery Shopper and determined that it was also a counterfeit. Attached hereto as Exh. J is a series of photographs cataloging the differences between an authentic Cleveland Golf Club and the Counterfeit Cleveland Golf Club.
51. On February 13 and 15, 2008, Wan sent the Mystery Shopper emails inquiring as to whether the Mystery Shopper had received the golf club that he had ordered and indicating that Wan was ready to take more orders. See emails attached hereto as Exhs, K-L (identifying information of Mystery Shopper redacted).
52. In his communications with the Mystery Shopper, Wan has used a variety of email and web addresses, including: export@golfclubcn.com and export@wisecorp.en.
53. As of April 10, 2008, the "Who Is" information for the Domain Name
golfclubcn.com, used by Wan, is as follows:
Creation Date: 2006-09-18 18:33:44;
Registration Date: 2006-09-18 18:33:44;
Expiration Date: 2008-09-18 18:33:44;
Organization
Name and Address: wan dabing, 217 Tiyu Xihengjie, Tianhe District, Guangzhou, 510620 BJ CN.
Registration Date: 2006-09-18 18:33:44;
Expiration Date: 2008-09-18 18:33:44;
Organization
Name and Address: wan dabing, 217 Tiyu Xihengjie, Tianhe District, Guangzhou, 510620 BJ CN.
54. "Wan Dabing" is also listed as the Administrator of www.golfclubcn.com, with a listed email address of wandabing2008@yahoo.com.cn; a phone number of +86.102031338-0 and a fax number of +86.102031338,
55. As of April 10, 2008 the "Who Is" information for the domain name www.wisecorp.cn lists wandabing2008@yahoo.com.ca as its administrative contact.
56. The sales by Yuedragon and Wan of counterfeit Cleveland Golf products to the Mystery Shopper are violations of Federal trademark law.
57. It is highly likely that Yuedragon and Wan's sales of the Cleveland Golf clubs to the Mystery Shopper are not the only sales that they have made or will make of counterfeit Cleveland Golf products to importers/resellers in the United States.
58. Given the manner in which Wan conducted his sales with the Mystery Shopper, including Wan's clear intention to sell products to the Mystery Shopper in bulk and Wan's ability to provide the Mystery Shopper with a pre-prepared price list containing a variety of trademarked goods, it is highly likely that Wan is engaged in the systematic bulk shipment of counterfeit goods bearing the Cleveland Golf trademarks into the United States. By advertising in English, selectively seeking relationships with existing Cleveland Golf distributors, and shipping worldwide, Wan and Yuedragon have targeted, not the individual consumer, but instead black market importers/resellers who will in turn defraud individual consumers in the United States, including specifically consumers in New York State.
59. Wan's statement that his products were "100% close to originals," accompanied by a price list that offered an array of products from Cleveland Golf at prices far lower than the MSRP, indicates to any purchaser of goods from Yuedragon and Wan that the goods being purchased are counterfeit.
60. It is a violation of Federal trademark law to import counterfeit goods into the United States.
61. It is a further violation of Federal trademark law to purchase a counterfeit product and re-distribute that product once it has been purchased.
62. Upon information and belief, the John Doe Defendants in this action have purchased, from Yuedragon and Wan, and have imported into the United States, counterfeit Cleveland Golf products to re-sell to additional distributors and/or to re-sell to unsuspecting consumers,
63. As described above, Wan maintains an account with Paypal, through which he conducts his unlawful transactions.
64. As described above, Wan maintains an account through Yahoo, through which he conducts his unlawful transactions.
65. Plaintiff expects that by examining the Yahoo and Paypal records of Wan's transactions, the Plaintiff will be able to determine the identities of the John Doe Defendants in this matter.
Pretty amazing allegations! How fun would it be to be Cleveland’s “mystery shopper!” Click HERE to read the Complaint, and click HERE to check out the exhibits, which contains some interesting material.
Another interesting golf litigation case to watch.
David Dawsey – Keeping an Eye on Counterfeit Golf Club Litigation
Posted by David Dawsey PE Esq at 4/20/2008 12:00 AM 
Categories: Knock-Offs and Counterfeit Clubs, Litigation, Irons, Trademarks, General Legal
Categories: Knock-Offs and Counterfeit Clubs, Litigation, Irons, Trademarks, General Legal
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