I am pissed as hell.
It has been a while since I have had a true rant on something, so here it is.
I hate it when a certain type of person or organization with clout and money can strong arm us every day type of people with threats. In particular and exactly to the point, I hate it when attorneys representing big corporations go after artists and crafts people with threats of a huge financial penalty because there was a "Violation" of the law.
Over the years, I have seen this happen to friends, acquaintances and have read about grandmothers being sued by the homes of famous cartoon characters because she happened to paint one of them on a Christmas Ornament and offer it for sale on her website.
I know of an artist personally who was sued by a company’s attorney because she made a cartoon image of the company’s product, made it in her line of craft work and was selling it. The notice she got was “Pay damages of $4,000 or go to court potentially incur court fees and more in addition to the $4000”. Note that this fine was not court ordered, but levied by the attorney with the THREAT of potentially paying more with court costs. It did not matter that she only made about $60 in 3 years from sales of the questionable product.
I have been very careful over the years not to use material that is covered under copyright laws. I will not use famous cartoon characters, logos used by sporting teams or companies, nor will I use current artwork. The artwork I use is in the “public domain”. I have also educated myself as much as I can (without becoming an attorney myself) on copyright laws. I have even (at no small expense) consulted with a copyright attorney, asking all sorts of questions regarding use of images, sales of craft items made from patterns, and teaching projects from patterns. I am fairly comfortable in the decisions I make.
So, I was really at a loss when I received an email from an attorney on a site where my beadwork appears (not my own). It was stated that they had received an email from an attorney representing a company alleging that I (and several other artists) have infringed upon Company XYZ's Trademark.
The piece in question was not an image of a company logo or product. The title of the piece did not include the company name. While I will not mention the name of the business, let me just say it is NOT in the US. It is very old dating back to 1889, and it has become an icon. Let’s just call it The Blue Poodle.
An artist who used to frequent The Blue Poodle painted the image I used. This painting was done in the 1800’s. I did not use “The Blue Poodle” in the title. Nowhere on the image do the words “The Blue Poodle” appear. And in no way did I state or infer that my beadwork was endorsed by or affiliated with “The Blue Poodle”. In my description of the piece I stated, “ This piece was painted by……..who used to frequent “The Blue Poodle”. The image is of a singer who performed frequently at “The Blue Poodle”.
I cannot speak for the other artists who likewise got the same email as I did. Perhaps they used “The Blue Poodle” in their title. Or perhaps they used the image of the iconic “Blue Poodle” in their artwork. But it pissed me off. If what I did was a violation, then goddammit, we could never use “The Blue Poodle” in every day conversation without being in a Trademark Violation.
The notice stated that the use of photos, and symbols of this establishment would be in violation (which did not affect me) The part of the that does affect me reads: “According to the notice, if term XXXXXX is used in the name of the product, in text, or as a key word, please remove the term XXXXX to avoid trademark infringement.
To “AVOID TRADEMARK INFRINGEMENT”???? WTF??? Either I did or did not infringe upon the TM. There is no ½ way. That was tip off that someone was going overboard. “AVOID” my ass. Don’t threaten me with the word AVOID in the allegation! So , DID I?? Don't come after me with your legal bullshit speak. Christ! I can read legal documents, I do it all day in my day job!!!
So…I researched trademarks. I could find websites, and other businesses that once had “The Blue Poodle” as their names, and had been forced to stop using the name. Ok…I can see that. You cannot use a trademark as a name of your business. For example, you cannot make a drink and call it Pepsi. That made sense. But still, I could find nothing about using “The Blue Poodle” in a factual description.
Being the type of not wanting to let things alone until I have a good answer I contacted an attorney. It was worth the few bucks for me to get an answer. Especially since this question has come up in groups once before regarding the use of a manufacture’s name in the description of beadwork. (Such as: “This bracelet was made with beads from XYZ company”). And I offered my “opinion” then that still is my “opinion” only now I have a professional’s opinion that seems to agree with me.
So with all the usual legal disclaimers of “ I AM NOT AN ATTORNEY. THE ADVICE AND OPINION PRESENTED HERE IS NOT TO BE CONSTRUED TO BE LEGAL ADVICE. IF YOU NEED LEGAL ANSWERS TO YOUR QUESTION, PLEASE CONTACT AN ATTORNEY” I will give you the answer. The following response from the attorney is for you to ponder and is for your entertainment (I have remove the business name and replaced it with XXX):
“If your use of XXXXXXXXX was to merely describe your product then that is well within fair use and not a TM violation, such a use is called nominative fair use. Trademark law does not prohibit use of words/phrases being used for non trademark purposes e.g. in every day parlance, descriptive uses, references in novels, etc. as long as you are not giving the false impression that you are affiliated with, or supported by XXXXXXXXX and as long as consumers would not be confused by looking at your ad/work into thinking that XXXXXXX was the producer/seller/sponsor of the artwork, then it is ok"
So once again, strong-arm tactics by those with money against those with limited funds have their way.
And furthermore, they would prefer not to have this matter discussed. Gee a F@#$(%* gag order??
Now, I think that would be a disservice to the bead (and art) community. And I will at least stand here to give you that information, minus the business name (that I would like to piss on).
All I can advise you on, is become knowledgeable. Don’t think that by making a pattern of a famous mouse and offering it for free is ok (they will fine you if caught). Learn what you can do, and what you cannot. But do not be afraid to stand up for what it right.
In my opinion, these multi million dollar businesses that spend their time threatening, and even fining those individuals who have overstepped the law should have better things to do. How about at least giving a cease and desist order first, instead of extorting money from those who cannot afford to fight back.
These high priced corporate attorneys as in this case, I think should be taken to task. They are the ones overstepping the law. Threatening legal action for what is permissible use is inexcusable and an outright form of extortion.