| Email To Precious Moments October 16, 2002 |
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To: lemrich@pmilicensing.com To Whom it may Concern: Tabberone is not doing anything wrong or illegal. There is no trademark infringment or copyright violation concerning her eBay auction Item # 723387347, or any other auction. Under the First Sale Doctrine, using legally acquired copyrighted fabric to make and then sell fabric items is perfectly legal (see Precious Moments vs La Infantil, 1997, (D.P.R.) 971 F.Supp. 66). The specifics of this case are identical to what Tabberone is doing. Using a picture, or pictures, of the item, even when there are copyrighted images on them, constitutes fair use of those images under federal law. The pictures used are strictly to show the product and the fabrics used. There is no inference of any type that Tabberone is connected to the manufacturer. Section 33(b)(4) of the Lanham Act defines fair use as: a use, otherwise than as a mark, of . . . a term or device which is descriptive of and used fairly and in good faith only to describe the goods or services of [a] party . ... 15 U.S.C. § 1115(b)(4) (1994). The defense permits others to use protected marks in descriptive ways, but not as marks identifying their own products. Car-Freshner Corp. v. S.C. Johnson & Son, Inc., 70 F.3d 267, 270 (2d Cir. 1995). The auction listing carefully points out to a prospective bidder that the item is hand-crafted from licensed fabric and that Tabberone is not affiliated with the manufacturer of the fabric. There is no confusion as to the origin of the product. Tabberone is not in violation of any laws and therefore does not have to cease.
Karen Dudnikov |