Recommended Posts

Legal Question - I got a cease and desist letter from a private seller stating I'm using their design in my etsy shop. However I have purchased the images separately and put the weapons together to spell "LOVE" which is very popular on my shop. I looked up the trademark she has and all of her weapons are different though - the overall look is similar. If you were to search it out on Etsy you would find HUNDREDS of listings for similar art decals (which understandably doesn't really help me any). Also should be noted they said "Trademark" which i believe is completely different from the word "copyright." I looked her TM # up and she does indeed have it for HER image. What do I do? Find my own representation? I feel like this is that weird gray area of intellectual property. I'm scheduling an appointment with JAG in the morning since it's available to me, but thought I'd ask you guys first - plus they aren't open til the morning. :/ 

 

There is about a 50% (+) difference between mine and hers. 

Share this post


Link to post
Share on other sites

I'm not a lawyer, so don't take anything I say too seriously.

 

Trademark- http://en.wikipedia.org/wiki/Trademark

 

Registered Trademark- http://en.wikipedia.org/wiki/Registered_trademark

 

Copyright- http://en.wikipedia.org/wiki/Copyright

 

Registered Copyright - http://en.wikipedia.org/wiki/Registered_copyright

 

 

I doubt that she is the original creator of the LOVE design made out of weapons. Everything I see on the major poster sites is by Steez. If that is the original designer or not I don't know. Technically, anyone recreating the design is in violation of the copyright of the original designer, whomever that may be. She owns the rights to her design, you own the rights to your design, but they both are most likely infringing on the rights of the original designer.

 

Sadly, all she needs to do it convince Etsy that she owns the rights to it and that you are violating her rights, then they will remove your listing.

Share this post


Link to post
Share on other sites

Ask her for her lawyers name call her bluff

Share this post


Link to post
Share on other sites

Yep call her bluff and see where, it goes but continue untill you get a court order or it is just too much of a hassle to make it fesiable.

I had a company send me a cease and desist for my company name stating that they had copright to the name, slogan and logo the only thing similar was the name Mr. Handy Man is my business name theirs is mr handyman. After some research I found I had been using the name longer then them and that it is in a different format and that maybe I should consult legal advice about them infringing on my company name...i have not heard from them since.

Share this post


Link to post
Share on other sites

Be sure to read the disclaimer under this post and I am also in no way offering legal advice but if you are underselling their product or hampering their sales it would be a pretty simple way to try and dissuade you and maybe get you out of competition by just drafting up a C&D letter hoping to scare you off. 

Share this post


Link to post
Share on other sites

Oh and definitely call their lawyer and have as long a conversation with them as possible because it will likely cause them to receive a big bill. <snicker>

  • Like 1

Share this post


Link to post
Share on other sites

I recently became aware that there is such a thing as a design trademark, as used by Glock firearms, to cover the shape of their handguns

 

search "glock design trademark"

 

as for how forcefully that could be applied like copyright to artwork that resembles the shape is a grey area,

 

I personally doubt it can be applied to "similar" non-competing artwork

 

but if they wish to litigate the issue, that could be a very expensive argument to try to win

 

normally, a design trademark is very specific such that only some small portion of a similar shape would be at issue

 

such that they should have a very specific complaint as to how the artwork overlaps the trademark

 

if not, write back, "your complaint is ambiguous, please clarify, meanwhile no action will be taken"

 

do not dismiss it or "wait for a court order" or "call their lawyer", that would be risky if they are not bluffing, and not a good way to handle a potential legal issue, it's best to confer in writing and stay focused on facts.

 

based on your description it is hard to imagine a "private seller" having a "trademark" infringed by an image of a weapon sending a C&D with any merit, but I'm speculating...

  • Like 1

Share this post


Link to post
Share on other sites

Remember, trademarks are used to avoid consumer confusion - Coca-Cola and their distinctive bottle designs are trademarked so no one else can use those designs to market soft drinks.

 

Copyright covers original ideas, and only that particular expression of the idea.

 

If you use non-copyrighted elements, or elements that you have purchased the rights to use, to spell out letters and it's distinctively different than the original, then it is NOT covered by their copyright (or bogus trademark claim).

 

Sign Torch has the best idea of lingo to use "your complaint is ambiguous, please clarify, meanwhile no action will be taken" and I would ask for specific links to their trademark/copyright registration.   Chances are very good that they have copyrighted a very specific version of LOVE spelled with weapons and don't realize that does NOT give them exclusive rights to all versions of LOVE spelled with weapons.

 

Note: If the only difference between your LOVE and their LOVE is that your sniper rifle has a right-hand twist in the barrel and their's has a left-hand twist in the barrel and the average Joe can't tell them apart, it's possible that you're infringing, but if your's is distinctively different, then it should NOT be infringing.

 

I am not a lawyer.  Ask your doctor if free legal advice from a random stranger on the internet is right for you.  Your mileage may vary.  May cause drowsiness.  Do not read this post and operate heavy machinery. 

  • Like 4

Share this post


Link to post
Share on other sites

I forgot to update you guys. I went and spoke with a JAG attorney about the situation and he basically laughed his butt off and told me she was an idiot. He helped me write and email back to her basically telling her such. I haven't heard a thing back from her in about 2 weeks. :)

  • Like 6

Share this post


Link to post
Share on other sites

Create an account or sign in to comment

You need to be a member in order to leave a comment

Create an account

Sign up for a new account in our community. It's easy!

Register a new account

Sign in

Already have an account? Sign in here.

Sign In Now