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Delta-Lawyer
Delta-Lawyer, Patent Prosecutor
Category: Intellectual Property Law
Satisfied Customers: 3546
Experience:  Patent Bar Certified
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Need information regarding jewelry copyright infringement. I

Customer Question

Need information regarding jewelry copyright infringement. I received a letter telling me I could not sell a particular bracelet in my leather bracelet line because of copyright. While the designs are similar in that they use the same easily available components, theirs are advertised as usable as both bracelet and necklace and mine are only usable as a bracelet. There are also differences in the way each design is clasped (leather loop and spring clasp vs spring clasp hooked into a link on chain) and the way they are created. Mine being made from 4-5 stands of leather wrapped twice around the wrist. Theirs are made from one continuous strand wrapped until they can be clasped. I have seen many versions of this style bracelet sold in many stores. What constitutes infringement given the stated facts? Cheryl Thompson
Submitted: 1 year ago.
Category: Intellectual Property Law
Expert:  Delta-Lawyer replied 1 year ago.

Cheryl, I hope this message finds you well, present circumstances excluded. I am a licensed IP attorney with over a decade of legal experience.

This is an issue that is becoming more and more common. We have companies that market product on-line, which makes it easier to search for what could be infringement and we have law firms willing to pursue these allegations of infringement (and even search them out).

As you likely know, infringement in this context is determined by whether or not there is a likelihood of confusion on the part of the consumer. In the present case, as with all copyrights, by you creating your product, you have a common law copyright. If they have filed for federal copyright protection, then there is a presumption in their favor that they own what they claim to be theirs. However, they still must put forth evidence to show that you are indeed infringing on their idea. This means expensive litigation and expert fees (it means that for you too if they sue, unfortunately).

Based on what you have shared with me, I don't think you are infringing on their copyright. That said, defending frivolous litigation is still expensive. Therefore, we must also think of this in business terms. You must ask yourself, am I making enough money off of this design to justify potential litigation that could cost me north of $100K to defend?

If the answer to that question is no, then you should remove it from your product line. If the answer is yes, then you should respond to them that you are not infringing on their copyright and therefore you are going to proceed in making and selling this product, to which you have a common law copyright yourself.

If you decide to remove it, send them a certified letter with a return receipt which specifically states that while you feel as though you are not infringing, and that they may even be infringing your common law copyright, you are going to remove this from your line as a token of good faith.

I know that this is frustrating. However, under the circumstances, these are the options at your disposal.

Let me know if you have any other questions or comments.

Please also rate my answer positively (three or more stars) so I can receive credit for my work.

Best wishes going forward!

Expert:  Delta-Lawyer replied 1 year ago.

This popped back up on my screen. Just checking to see if you had other questions

Expert:  Delta-Lawyer replied 1 year ago.

Just checking in with you this morning to see if you had any other questions. I want to make sure you are as comfortable as possible moving forward. Thanks!

Customer: replied 1 year ago.
Thank you for your quick response, even if it was not what I wanted to hear. There are numerous designers making a similar style bracelet on numerous sites online. They have only shown photos of two of my bracelets using silver/gold beads and leather close to the color they offer and claim I am infringing on the designs similar in their collection. I carry many other colors. I'm inclined to let them spend money and time attempting to force me to stop selling those two combinations while I move forward with derivatives using obviously different components. The design they claim to be theirs, is growing stale anyway. In any of my advertisements, I will stress the differences in the similar and the derivative designs so there is no conflict. If it gets to the point I'm served with a lawsuit, then I will no longer sell the color combos they claim to own. Apparently, they are delivering a letter copy of the email by UPS today. As long as I do not have to spend money on any further legal assistance, specifically defending a lawsuit, I'll let them do what they must. Sound okay?
Cheryl Thompson
Expert:  Delta-Lawyer replied 1 year ago.

If it gets to the point I'm served with a lawsuit, then I will no longer sell the color combos they claim to own.

Sounds like a good plan, Cheryl. As stated before, I do not believe that you are in danger of losing a law suit. There is also the chance they are bluffing to try to diminish competition and that they never intend on filing suit anyway. That said, I do think you have a sound plan here. Understand that once they file (if they file) your ceasing to use does not really help you legally speaking in that they can continue to pursue lost profits. That said, I don't think they will be successful with a suit - and they probably know that too.

Let me know if you have any other questions. Please also don't forget to rate my answer positively as well.

Thanks!

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