Trademark Infringement Help

[chazus]

Well for starters, specific names are trademarked. So, things like "Hufflepuff" can only be used with express written permission

We actually looked into that, and having a word or name trademarked does not mean "nobody can use it for anything". It's perfectly legal as long as there is no 'intent to copy the original' or 'confuse public ideas of the original' (I don't have the actual legal paperwork in front of me, but thats what it said)

What are the images on the perfumes? What are their descriptions? If those two, together with the scent's name, bring up enough resemblance to the franchise, they can ATTEMPT to call it a trademark infringement.

I posted an image of it a few posts back, but she makes a very definite avoidance of commenting on it being like, similar, or directly taken from such things.

Example for TARDIS scent: "Inspired by the famous blue police box, this scent is the interpretation of a blueberry steeped English breakfast tea."

I personally haven't gone through each listing, but I think she's very careful to only use the names in the perfumes, and not in the descriptions or relations.

[Kuntantee]

What is a trademark?
A trademark is a word, phrase, symbol or design, or a combination thereof, that identifies and distinguishes the source of the goods of one party from those of others.

I very much doubt using English as advertisement infringes this definition. I have a specific question for those who know these kind of issues. If someone develops a game called Cataclysm, is it copyright or TM infringement?

[Namarus]

Jesus, make up original names instead of using movies for your inspiration.

I'm really surprised noone have reported the Hufflepuff.

[Deleted]

Jesus, make up original names instead of using movies for your inspiration.

I'm really surprised noone have reported the Hufflepuff.

Indeed, it is pretty cheap to cash in on someone elses work in order to sell a product.

[chazus]

Indeed, it is pretty cheap to cash in on someone elses work in order to sell a product.

You could say the same about the other hundred thousand products on etsy or ebay inspired by stuff. It's not really 'cashing in on someone elses work', since there's no competition. That's neither here, nor there though. What I'm looking for is legal resources to help in the matter.

[Deleted]

I'd recommend she stops infringing upon trademarks.

Fair use doesn't cover anything you have described. Using an aspect of a film, game, whatever and selling it alongside an item is misleading the public into believing it is an officially licensed product. You have no legal right to sell "Creeper perfume".

[chazus]

Fair use doesn't cover anything you have described.

Actually, it does. We checked, and verified with Etsy's team the first time it happened.

Using an aspect of a film, game, whatever and selling it alongside an item is misleading the public into believing it is an officially licensed product. You have no legal right to sell "Creeper perfume".

We checked on that too, and it is only considered 'misleading' if it were a competing product, or a product in the same or similar industry (i.e. a game, a film, etc).

So far, there has not been any confirmed legal infringement. A company waving it's hands and going "rawrr, you're infringing!" does not actually mean you are. It's just them being dicks, pretty much. Certainly, if they had perfumes or something remotely similar that would be different... But they don't. Again, not the purpose of this thread though. Certainly, if she were infringing on something, she would have to follow up on it appropriately. We're just trying to deal with the bogus stuff in the meantime.

[Deleted]

Please stop seeking legal advice from the internet.

Quite frankly I find this kind of parasitic behaviour really rather abhorrent.

[Orlong]

Thats no fun! The idea sounds pretty cool, but to hell with mega corps imo.

What difference does the name make? Its a cologne so the only thing that matters is the smell. I say just change the names

[chazus]

What difference does the name make? Its a cologne so the only thing that matters is the smell. I say just change the names

If it continues to become a problem, even if she isn't doing anything wrong, it may be necessary to do so. Customers though have made it abundantly clear that they'd rather have the original names created, rather than a janky spin-off. Especially with scents, a number of the buyers buy it off the name, regardless of what it smells like. She has had a number of people saying they bought a specific line for the name, and liked the scent after the fact (and some even didn't like the scent, but glad they bought it purely for the name). She's also asked buyers what they want to see, and that influences what she makes. It's pretty much trend marketing, to a degree.

[chazus]

If youtubers are allowed to do it why not a perfume maker.

Yeah, I mean. If you go to Etsy and search "Games"... about 98% of what you'll find on there would be "infringement" if using as inspiration was not allowed.

It looks like she's going to be speaking with a couple local firms to see if we can get some free/cheap counseling on the matter, but I was hoping to see if there were any online firms that people might know of.

[OzoAndIndi]

Etsy seems to be on a 'shoot first, ask questions later' basis.

Yeah it's really gone in that direction. I forget what it was a bit ago, last year I think... some uproar over copyright stuff, companies getting more uptight about it... gah! What was that over?? Whatever news drama that was, I remember Etsy turned real serious over any hint of potential infringement around that time.


Really I don't know what to suggest other than contacting them as you guys already have. The laws leaves your hands a bit tied and it's hard for an unknown to get any kind of footing in this sort of thing against a company or someone known. All you can do is contact people I guess, but it's difficult when they outweigh you.

It's ridiculous though that they'd want to dispute things that are simply "inspired" by their media, companies have really a stick up the butt over this stuff anymore. I could understand if they actually were working on coming out with their own fragrances, but come on... in Minecraft really going to do that? >.>


I can understand the feeling of having this happen though. Years ago I had CafePress pull a creation of mine, that I'd had on there for quite a while, thanks to the complaint of some bitch who well after me came up with the same idea and had managed to get it on a shirt seen on SNL (which I saw and was not too pleased with). She had the weight, I lost. Far as I know copyright laws, at least in the U.S., apply to someone's work when created, with or without an officially registered copyright. However... For all I could figure I had my design first, but I had no proof.

I emailed via her website, never heard anything back. It was not even exactly the same, but too similar for her liking. Stupid thing is the whole concept was a spin off of yet another older image, so why wasn't hers AND mine infringing in that case? That older image being the mudflap girl silhouette... this was however a male version in question. And since then of course there are others that have turned up but have remained on CafePress...ugh. I was quite mad, though I later created another to put on CafePress though, one of a guy this time sitting up and giving the middle finger. *evil grin* (I've somewhat recently created a Blood Elf male version... been waiting for someone to get mad at that one. Just a personally created profile silhouette though, don't think even Blizz would take issue in that case.)

[chazus]

so why wasn't hers AND mine infringing in that case?

Yeah. It's stuff like that that makes it even more frustrating. Why is this somehow more 'infringing' than this? Even the descriptions are safer.

From the (currently inactive) Etsy site: "Ssssss... That's a nice everything you have... A powder keg stuffed with sweet lime and grass, this scent is innocuous at first with a smoky, spicy undertone."

But this is totally okay: "A Hand stitched Creeper from the hit online game Minecraft"

Not "inspired" not "looking like", it literally says "From the game"

Bleh, I'm just ranting now. It's just frustrating to see a business built up from months of work be put on hold because of poor IP management.

[Csnyder]

you need to look into the laws better cause if what you say is true she is in trouble for copyright infrigement, i deal with it all the time
you basically admitted she has in your post, not to smart on your part, seems you do not understand the laws one bit
but ignorance of laws will not save her in court, laws are laws and from what youve said she has broken them clearly

[chazus]

you need to look into the laws better... you basically admitted she has in your post...youve said she has broken them clearly

What are you talking about? Getting a notice from Etsy doesn't mean you've broken any laws. It means someone contacted them, nothing more. As I said earlier, we verified that the first infringement (Leaf on the Wind) was bogus, and basically a scare tactic. Etsy has since allowed to continue selling it, after it was questioned. I don't... think you read the entire post.

[Dispersedshadow]

I don't think the problem is the inspiration, it's the product names.

As I stated before, a trademark holder has the right to product their mark against dilution, even from a non-competitive product. For a good example, see the Apple v. Apple settlement agreements and cases. It's a law with some grey area to it, but trademark holders have to constantly press against dilution or infringement or risk having their trademarks could lapse, which at the very least means she can expect trademark holders to at least make a claim.

She's obviously creative. So, as your stated above, the easiest path to take may be for her to come up with some of her own creative names and then seek legal advice for how to best put the source of her inspiration into her marketing materials. IMHO, "Angel in a Trenchcoat" sounds like a cooler name for a fragrance than "Castiel"

[Caitlyne]

My girlfriend runs a perfume shop on Etsy. Most of the scents on there are game or television inspired. She's gotten two trademark infringement hits so far, and it's becoming an issue.

Her first was "Leaf on the Wind" (from Serenity). She contacted Fox about it, and they had no legal backing. The skinny of it is 'Trademark Infringement' only really applies on unique works if it is something that might confuse people. Obviously, a 5ml bottle of perfume is not very similar to a blockbuster movie.

Her second was "Creeper" (from Minecraft). Again, it's not an exploding creature in a game. It's perfume. Yet despite that, there are hundreds of people on Etsy making actual creeper plushies and the like, without problem.

My question is, does anyone know any decent, cheap (or free!) resource to help her deal with these? Having looked through the legal papers, rights of fair use, she hasn't made any kind of infringement. Etsy seems to be on a 'shoot first, ask questions later' basis. It's also been discovered (in Fox's case) that many TM handlers will often wave papers around to get stuff taken down, even if they don't have legal backing, which really serves no purpose but inconveniencing people.

just prepare a standard template letter to dipsute the infringement to save tinme, and ignore until a real complain arrives

[Alnilam81]

To answer your question you should really just communicate with Etsy as much as possible, and get firm details on their policies regarding getting flagged. If you have confirmation off the copyright holder that they have no issue with you then i don't really see how Etsy can put a long term black mark against you, and i'd argue that with them, just understand that certain products might have to be down from time to time.

However, it's not surprising your getting flagged for stuff, you are using those references to games, films etc. to add additional value to your product that wouldn't be there otherwise. Therefore you're profiting off the work of someone else, which is a big no no, especially when all you're really doing is printing a label and sticking it to a generic bottle of perfume. Personally I think you should be grateful for getting this far without bigger issues. You acknowledge that changing the names isn't ideal and that's because you know that doing so will remove all the "value" in those products, and no doubt kill sales.

Your attitude towards other sellers won't help you either, you think that just because they're (currently) getting away with it you can do it too? Sure it's frustrating, but you don't know what reports they're having to deal with, or if they'll get closed by Etsy suddenly.

[chazus]

Just an update. J!NX rescinded the infringement claim. They personally looked over the product and found no infringing content, and "Creeper" is perfectly fine to use, as long as she doesn't list it as "Minecraft Creeper" (Which she didn't in the first place).

It's essentially a case of either scare tactics, hoping people don't fight back, or an extremely lazy IP/legal team.

[Dispersedshadow]

Just an update. J!NX rescinded the infringement claim. They personally looked over the product and found no infringing content, and "Creeper" is perfectly fine to use, as long as she doesn't list it as "Minecraft Creeper" (Which she didn't in the first place).

It's essentially a case of either scare tactics, hoping people don't fight back, or an extremely lazy IP/legal team.

TBH, the two that have filed complaints seem the weakest potential claims. "Leaf on the Wind" and "Creeper" aren't easily defendable because those terms have existed before Serenity and Minecraft, respectively. Some of her other names seem more unique to the IP they are inspired by (TARDIS and Catwoman, for example).