A couple of weeks ago, I got an inquiry and went ahead to produce samples for a propective buyer. The samples are ready and I have been trying to get in touch with him but he didn't responsed to any of my emails.

I have no alternative but to give him 3 days to response, failing which, I reserved the rights to float the products designed by us in the market(minus his logo); I don't want to infringe any copyright's law.

I am not sure, but I beleived that I will not be doing anything wrong if I produce and market the product he asked for; in his region. BTW, it is our own design, so I am sure I will be alright.

Am I doing the right thing?

Replying To  [Big Brother]:

Have you tried to call him? There could be many reasons as to why he is not responding, including that his email could be down, he could be away on a business trip etc.

Replying to [Big Brother]:
I agree with grigo, you'd better try other ways to get in touch with him.
I've met such kind of similar matters too, and that's because the customer is in a business trip.

Replying to [grigo]:

I just can't possibly spend all my time with this guy. I've called him on numerous occasions but either it was the answering machine or the line is engaged. I even left a message for him to return my call.

I've tried all avenues and I guess that's that. I'll wait for another 3 working days and see how things turn out; or it will be Muncho Gracia senor, Adios.

Replying to [Big Brother]:

You asked a question about your legal rights under Western law.

On what you say, you and your client entered a contract where you agreed to make a sample of an item which is your own design. Therefore you have two very different aspects of law - contract law and copyright law.

CONTRACT LAW

First, your client is in breach of contract. You see, it is an implied fundamental condition in your contract that the client must remain in touch to enable you to fill your part of the bargain.

Your remedy, in contract law, is either to demand "specific performance" (which I won't go into here) or to terminate the contract. You must do one only of those two (and inform the client of your decision).

Your proposed letter should state to this effect: "If you do not contact us within 3 days, we will immediately terminate the agreement between us."

Whatever you previously agreed will then no longer exist (after the 3 days expire).

COPYRIGHT LAW

You say you designed the sample. Therefore, in copyright law, you alone own the design. You have always had the legal right to sell it to anybody else (even if your above client had kept in touch and ordered a large quantity from the sample).

The only way your client could ever prevent you from using that design for others is:

1. If your contract said the design would be owned by your client (even in emails of verbally), or

2. If your contract said you would make items of that design exclusively for the client and nobody else.

However, those rights no longer exist if you terminate the contract.

On the other hand, if your client has any case that he also helped make the design, you must add to your above letter: "Due to your breach of contract, we have suffered loss and damage which we shall remedy by retaining the samples and the design for sale to other buyers."

It is not well understood that a factory who is paid by a buyer to create a design is the ongoing actual owner of the design (unless the contract provides that ownership of the design will be transferred to the buyer or that the factory will not reproduce the design for others as above). Nor could that buyer get another factory to make the item (because the design is owned by the original factory who created it).

Not that many Chinese factories care two hoots about copyright law. However, if I paid a Chinese factory to design an item and wrote into the contract that I shall own the design, I could prevent resale of that item in the West if I proved to a Western Court that I own the design.

BOTTOM LINE

You have nothing to fear ... go ahead and terminate the contract and sell the product to others (but make sure you use the words "terminate the agreement" in your correspondence).

It is very dangerous for you to say "I reserved the rights to float the products designed by us in the market". First, it implies that you never had right to sell it to others. Second, it leaves the contract afoot. Contract law requires that you be very clear and specific when the other party is in breach. You must either demand "specific performance" or terminate the agreement (and tell the other party of your decision).

Replying to [Aussie]: good Aussie. I had the same thought but you have offered a very clear, professional advice.

Replying to [Aussie]: I agree with your point

Replying to [Big Brother]:
we also have met such a things with yours.
we trying to contact with that customer.but we didn't getting any replies from them.it's phone busy or no answer.
i think that maybe they are taking our photo sample to give any other suppliers or maybe the project are postpone or cancel.
this is a normal thing .

Replying to [Aussie]:

Thanks mate. I'll take note of everything you said. It's going to come in handy.

There's one thing I forgot to mention. We never ask our would-be buyers to pay for samples. We produce them out of goodwill and they only have to foot the freight charges. Moreover, if they place an order with us we would refund/give them a rebate for the samples' freight. In business sense, I think that is a very fair deal .

Guess what? I got a reply from the buyer yesterday. I believed I frightened him by telling him that I'll float the products in the market me self.

But, I am not too optimistic, I am prepared to see the back of him once me samples has been delivered to him. My gut feeling tells me that I will be seeing Houdini..

Well, business is business. I have to honor my words as a supplier and fullfil my obligations. If he decides to vanish after receiving the samples; so be it.

I can bring a horse to the water but I can't for it to drink.


Peace Brother.

Replying to [Big Brother]: What product are you talking about and in what country is it going? Have you signed anything ??

Replying to [Big Brother]: were the samples tohis specification