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socrateaser
socrateaser, Lawyer
Category: Intellectual Property Law
Satisfied Customers: 38910
Experience:  Retired (mostly)
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My name is ******. I run a Facebook group and a blog site.

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Hello, My name is Monte ******. I run a Facebook group and a blog site. Our focus is Merch By Amazon. It allows everyone the opportunity to design t-shirts and sell them on Amazon.com; It has been called the new gold rush. Anyways, I have a shirt design. Could you please look at the original idea and then look at my design, and tell me if I would be safe to publish my shirt design or would I be infringing on someone else's work i.e. a derivative. If I would be infringing on the other designers work, could you please provide some insight, maybe a rule of thumb that I could share with my merch group or on my blog at merchfuel.com so that we do not violate any copyrights including derivatives. Some members are under the impression that if they change the font and color and swap out for a similar graphic or flip an element of the design layout that they will be fine.

Customer: replied 4 months ago.
The sticker IMAGE is the original, the 2nd IMAGE is my shirt design.

Hello! My name is ***** ***** I am an attorney with Just Answer. I'll be here to help today! Do you mind if I take a moment to review your question?

By the way, the system will automatically ask for a phone call. By no means are you required to accept it.

I think that this is a very cool idea. To help, I can provide some general information based on my experience, but it is important to know that only a trier of fact (judge or jury) will be able to determine for certain whether the design infringes on someone's trademark.

The first thing to understand is that images and marks are actually trademarked and not copyrighted. A copyright is a literary or artistic work of some kind a a trademark is usually brand of some kind. So, generally copyrights are going to be books, photographs, songs, etc. A trademark is something like the Nike Swoosh or the apple made by Apple, Inc. In this case, the image is going to be a trademark because it is a mark for which you're going to be receiving money for it through trade. With that out of the way, we can move onto the next thing.

The main element of trademark infringement is the “likelihood of confusion” (i.e., whether the similarity of the marks is likely to confuse customers about the source of the products). In evaluating the likelihood of confusion between related goods or services, the following factors are considered:

    • strength of the mark
    • proximity or the goods or services
    • similarity of the marks
    • evidence of actual confusion
    • the marketing channels used
    • the type of goods or services and the degree of care likely to be exercised by the purchasers of the defendant’s product
    • defendant’s intent in selecting the mark
    • the likelihood of expansion of the product lines

Because we aren't a judge or jury, we would not be able to tell for sure whether this mark would infringe on someone else's. However, you are allowed to use your best judgment. If you feel as if the item is distinct and non-confusing, then you are going to be in great shape. If you click here, you can find more information on trademarks.

Follow up questions are free so did you have any additional questions? If not, were you satisfied with my service today?

Hello,

I may be misunderstanding, but I only see a single image in the uploaded file. Please advise. Thanks!

Customer: replied 4 months ago.
Here are the 2 images you should see.

Ok, thanks. Please give me about 30.minutes to get back to you. I'm on a conference call.

Okay, Monte...thanks for your patience. There are three different issues here:

1. Trademark. If (any or all of) the design/ogo or text is actually registered as a trademark for a business that uses the logo or text in commerce (i.e., to sell a product or service), then your use may be considered trademark infringement. The critical factor is whether or not an ordinary consumer would associate your work with the trademark owner's business. If yes, you're infringing. Otherwise, not.

2. Copyright. U.S. copyright law does not protect catchwords, catchphrases, mottoes, slogans, or short advertising expressions. So, the phrase used in the design cannot be protected by copyright (though, it may (or, may not -- depends on a lot of factors that only a court can resolve) be protected as a trademark). The design, however, can be copyright protected. In this case, if an ordinary person would view one design and immediately associate it with the other, than that's copyright infringement. Example:

If you draw a mouse with big eyes and a huge smile wearing lederhosen, then you're probably infringing on Disney's Mickey Mouse. But, if you draw a mouse with small eyes and a huge smile wearing a suit, then you're probably not infringing.

Which brings us to issue 3...

3. Who are the litigants. Trademark and Copyright litigation is very costly. Lawyers charge $400-600 per hour for this sort of work. So, if you're adversary is an individual with "shallow pockets," then the chance of being sue for infringement is low, even if you make a verbatim infringement. Secondarily, there's the issue of "Who are you?" A lawyer that might take a copyright or trademark infringement case on contingency (pay only if you win) -- is far more likely to take the case if there is a lot of infringement (massive sales), or you have deep pockets with which to pay a damage award. Whereas, if you or your adversary are "small potatoes," then no one will sue and no one will defend -- and if someone does sue, then the defendant may simply file bankruptcy and that will end the dispute in a hurry.

Note: Trademark infringement can be sued on in any court -- even in small claims court without a lawyer. Copyright infringement must be sued on only in U.S. District Court, which is the most expensive legal forum.

That's the "broad brush."

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socrateaser, Lawyer
Satisfied Customers: 38910
Experience: Retired (mostly)
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