Articles on Trademark and Copyright Infringement Alphabetically.

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These articles concern what we consider major trademark and copyright issues. They are usually reproduced with the original source referenced. Bear in mind, these articles are copyrighted and commercial use without permission of the authors may be considered infringement. The intended use here is educational, commentary and non-commercial. The reason they are reproduced in the Tabberone™ Archives, as opposed to just providing a link, is because links disappear and pages are removed. That presents a messy confirmation process that is annoying to the browser (you) but also presents a credibility issue. We do not claim any rights in these pieces. Do not regard the absence of a copyright statement or © to mean the article is not copyrighted. Some sites do not have a copyright statement.
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Archived Articles on Trademark and Copyright Infringement
Alphabetically Listed

Last Updated January 16, 2010

We do not agree with all of the opinions or conclusions stated in these articles. We only present articles that we consider to be well-argued and factually supported about relevant matters. The articles here are arranged alphabetically. For these same articles arranged by subject matter click here.

See the Federal Court Cases page for more information.

A

Abusive Copyright Takedowns Aimed at McCain and Obama Show the Need to Amend the DMCA , by Paul Alan Levy, talks about the need to reform the DMCA. October 16, 2008.
A Design for the Copyright of Fashion by Jennifer Menckin, December 12, 1997, really bad and self-serving arguments about whether clothing designs should be copyrightable.
'Affair of Heart' hopes not to repeat university trademark infringements fiasco, Associated Press, Tulsa World, February 8, 2008. Organizers of a popular craft show said Friday that they hope to avoid a repeat of a previous show when representatives from the University of Oklahoma and Oklahoma State University seized merchandise that bore licensed school trademarks.
Alteration Issues By Donald M. Gindy, 2002 article about the First Sale Doctrine as applied to trademarks. Appears to be quite biased towards the corporate lawyer view of trademarks and copyrights but has some good references.
A lenghty American Bar Association report Committee #304 Report from 1996-1997, presents some interesting ABA views as to the trademark and copyright laws such as "fair use", "framing", and "useful articles".
Anonymity Preserved for Online Embroidery Fans, press release by the Electronic Frontier Foundation (EFF) who blocked ESPC's attempt to learn the identities of bloggers who dared to criticize the almighty ESPC. September 14th, 2006.
America Online, Inc. v. AT&T Corp article by Phillip Nizer about this 2001 case. Cites a lot from the court decision concerning generic trademarks.
Are Unfair Takedowns Becoming EBay's Trademark? posted by Ed Foster of The InfoWorld Gripe Line, June 12, 2007

B

"Beware Designer Items" April 22, 2001, by Auction Bytes, about Chanel terminating auctions "claiming" counterfeits when they weren't. Chanel is notorious about this.
Beanie Baby Trademark Wars article by Eric J. Sinrod for USA Today, October 10, 2002.
Beanie Baby Trademark Wars 2 article by Phillip Nizer about this 2002 case.

C

Calder and World-Wide and Shoe, Oh My!, an article posted on Concurring Opinions by Jaya Ramji-Nogales on February 15, 2008. It talks about the clearly-written 10th Circuit Appeals opinion, Dudnikov v. Chalk & Vermilion Fine Arts.
Car-Freshner Corporation v. S.C. Johnson & Son an analysis of the 1996 decision where the Second Court of Appeals held that descriptive use of a trademark is fair use.
City of Heroes Lawsuit--New Ruling on False DMCA Takedown Notices, September 6, 2005 article by Eric Goldman about Marvel being attacked in court for bogus takedown notices.
Computer Software Terms Unfair, a BBC report from February 2008 about EULAs (shrinkwrap licenses).
Contract Formation and the Shrink Wrap License: A Case Comment on ProCD, Inc. v. Zeidenberg, A lengthy paper by Robert J. Morrill which talks about ProCD and shrink-wrap licenses and why the court got it wrong in this case.
Copyright and Politics Don't Mix , by Lawrence Lessig, Op-Ed piece in the New York Times, October 20, 2008.
"Copyright dispute becomes quite a yarn", A Seattle Times article 2003, about Alice Starmore, some ditz who was illegally terminating knitting eBay auctions. Kevin Pursglove, resident idiot at eBay, falsely states that language included with a sale limits resale of the item.
Copyrighted fabric: no selling the stuff you make from it, by Cory Doctorow, October 17, 2006, about use restrictions on licensed fabrics.
Copyright Law and Parallel Imports by Paul D. Supnik, discusses Quality King Distributors, Inc. v. L'Anza Research International Supreme Court decision.
Copyright Protection For Short Phrases, By Richard Stim, J.D., Stanford School of Law, article about the limits of copyright protect and short phrases.
Copyright Registration and Derivative Works By Jonathan Hudis and Amy C. Sullivan, 2001 article.
Copyright Registration Requirements Strictly Upheld by David Roy Ellis, 2003 article.
Council to weigh settlement of $20,000 in T-shirts arrest Denver, October 27, 2007. Major League Baseball illegally ordered a woman arrested for selling a t-shirt and the City of Denver paid the woman $20,000 to drop the false arrest charges.
Court Rules That Software License Transfers Ownership, by Kate Wevers for Harvard Law School posted on Jolt.Law.Harvard.edu. Analytical discussion of the case.
Court: Sewing Patterns are Data, Not Code from Wired.com, August 31, 2006.
Court smacks Autodesk, affirms right to sell used software by Timothy B. Lee, published: May 23, 2008 for ars Technia

D

Designer Jewelry vs Inspired-by Jewelry, an article by Daliah Saper of Saper Law, September 18, 2008. Debunks some of the "myths" about being "inspired" being a defense to infringement.
Disclaimers And Federal Court article from LSU about the Westchester Media Co., L.P. v. PRL USA Holdings, Inc decision
Does eBay really understand the big picture?, editorial about eBay terminating an auction that was selling a jar of sand from the beach in Atlantic City. Terminated at the request of the city! Posted by the Online Auction Users Association, January 2003.
DMCA Online Safe Harbor Empirical Study by Urban and Quilter, November 22, 2005 article by Eric Goldman discussing the DMCA study by Urban & Quilter.
Don't Post This Cease And Desist Letter Or Else by Greg Beck, October 5, 2007.
Do You Want Doctrinal Feedback Or Trademark Extortion With That Burger? posted by Dick Troll, September 13, 2007 Talks about trademark extortion.
DMCA Takedown Abuse, March 25, 2009 article by LibraryCopyright.net about Google's claims that 57% of takedowns under the DMCA are from competitors and 37% of takedown notices under the DCMA are invalid copyright claims.

E

"eBay and Privacy", April 22, 2003, is actually two letters sent to the FTC about eBay and eBay's practices concerning privacy and how these policies are deceptive and very possibly illegal.
eBay Seller Wins Trademark Case Against Laurel Burch Artwork, by Ina Steiner of the on-line newletter Auction Bytes, August 7, 2008, talks about the lawsuit filed when Jay Burch unlawfully terminated an eBay auction.
eBay Strikes Back, Sues for Frivolous DMCA Takedowns , dragged into a lawsuit, eBay retaliates. January 5, 2008.
eBay to Law Enforcement - We're Here to Help, February 17, 2002, an article about eBay and how willing it is to give private information to just about anyone who wants it. What he article does not cover is the fact that eBay will not under any circumstances give a VeRO'd seller any information about the VeRO member.
Efficient Process or "Chilling Effects"?, subtitled Takedown Notices Under Section 512 of the Digital Millennium Copyright Act. In depth 2005 study of the DMCA by Jennifer M. Urban and Laura Quilter that shows as many as 30% of DMCA takedowns are flawed. HTML format. For this case study in PDF format, CLICK HERE
Embroidering On a Copyright Shakedown Theme, by Ed Foster on his GripLog, a highly critical analysis of the tactics of the ESPC and their claims. September 11, 2006.
Embroidery Copyright ~ Buyer's . . . liable or not?, from a FreeAdvice.com discussion board. The original question is accompanied with excerpts from the first, and most comprehensive, reply. It reiterates the facts about which the ESPC commonly lies. September 24, 2005.
Emphasizing the Copy in Copyright, 2005 article about derivatives by Michael K. Erickson

F

Federal Judge Approves eBay Auction of Copyrighted Autodesk AutoCAD Design Software, posted on LawUpdates.com, analytical discussion of the case.
Fighting Back And Winning In Trademark-land, a MicroEnterprise Journal article about Tabberone fighting Major League Baseball over fabric from 2003.

G

Girl Scout banned from selling cookies on YouTube, article from the Washington Times about the Girl Scouts telling a little girl she cannot sell cookies on-line.
Google Submission, detailed article from PC World New Zealand about Google's claims that 57% of takedowns under the DMCA are from competitors and 37% of takedown notices under the DCMA are invalid copyright claims. March 19, 2009.

H

"HOG" Generic for Large Motorcycle, article by Peter S. Sloane for Ostrolenk, Faber, Gerb & Soffen, LLP.
How To Use A Licensed Fabric, by eHow.com, from 2010 and posted here October 7, 2011, about licensed fabrics and your right to use them.

I

Initial Interest Confusion: Standing at the Crossroads of Trademark Law , article by Jennifer E. Rothman, Loyola Law School, in the Cardozo Law Review, Vol. 27, p. 105, 2005.
Initial Interest Confusion, article by Jonathan Pink, ipFrontLine.com, July 6, 2005.
Interview with eBay Seller Jennifer Heist is a personal interview by Ina Steiner of the on-line newletter Auction Bytes, August 7, 2008, about the lawsuit Heist filed against Lauerel Burch.
Is This An Infringement Of Copyright Laws? article by Carolyn V. Peters who is a licensed attorney. She discusses using patterns to make and sell items regardless of the wishes of the pattern manufacturer.

J

Judge Shoots Down Universal's Bogus Infringement Allegations article from the EFF about Troy Augusto and his fight against Universal Music Group (UMG). The ruling affirmmed an eBay seller's right to resell promotional CDs that he buys from secondhand stores.
Judge Sides with Vernor, Slams Autodesk, posted by Thom Holwerda on OSNews.com.
,

K

L

L'anza Research International Inc. v. Quality King Distributors is discussed in this edited article. The only editing was to exclude other cases. The wording was not altered. This ruling was appealed to the Supreme Court which reversed.
Lindows Ruling Appealed by Microsoft, Sam Costello, IDG News Service, April 3, 2002.
Lindows Wins Over Windows, Microsoft loses a big one, by Brenda Sandburg for The Recorder, March 19, 2002.

M

Mattel Loses Again, Yahoo! News, Wednesday, December 31, 2003, By David Kravets, Associated Press, Tuesday December 30,12:28 AM ET.

N

N

The No Electronic Theft ("NET") Act, from the Department of Justice web site, http://www.usdoj.gov. This page is referenced and linked to by the ESPC on its web site as explaining copyrights. The DOJ page is unreadable. It is readable here but the question still remains: what does this have to do with someone innocently buying software? Disinformation by the ESPC.
Not Too Precious Moment where Precious Moments lost most of what they wanted, article about the 1998 case, Enesco Corp. et al. v. Price/Costco, Inc.

O

P

Paypal (eBay) loses suit over mandatory arbitration. A federal judge in San Jose, California, ruled against Paypal (eBay) and the mandatory arbitration clause in their user agreement. September 2002.
ProCD Inc. v. Zeidenberg concerns "shrinkwrap licensing agreements". Excerpted article.
Prosecutors might charge OU and OSU university officials after craft show incident, Associated Press, Tulsa World, November 9, 2007. Prosecutors still are considering whether to file theft charges against representatives from the University of Oklahoma and Oklahoma State University who seized college-themed merchandise from several vendors at an Oklahoma City crafts show.

Q

R

Restricted Fabrics: Cutting against the grain of personal property, by Wendy Seltzer, October 17, 2006, where she comments on the article by Cory Doctorow titled Copyrighted fabric: no selling the stuff you make from it.

S

Scientology: eBay E-Meter Auctions Yanked, article from Apr 28, 2000 on Slashdot.org about the improper use of the DMCA by the "Church of Scientology" to end auctions they didn't like.
Scientology abuses eBay's VeRO program, article from February 18, 2008 on RealityBasedCommunity.net.
The 7 Deadly Myths of Internet Copyright by Attorney David L. Amkraut, not all of them with which we agree. He appears to have a strong "picture use" bias from his tone.
Standing Up To Takedown Notices, By Catherine Rampell Washington Post Staff Writer, Friday, October 19, 2007; Page D01. Article about people fighting back.
Stop Mucking up Copyright Law: A Federal Common Law of Contract as a Clean Exit Strategy (PDF file), a 2003 paper by Llewellyn Joseph Gibbons, Associate Professor, College of Law, University of Toledo, 36 pages.
Subliminal Copyright Infringement, a 1998 case about de minimus use in a copyright case.
The Supreme Court's Allowance That Consumer Confusion May Be Iinvoked To Defeat Fair Use by By Beth S. Brinkmann and Matthew C. Schruers, about KP Permanent Make-Up, Inc. v. Lasting Impression I, Inc, 125 S. Ct. 542 (2004), PDF format article about fair use in context with this decision. PDF format.

T

Taking an Aggressive Stance Against Counterfeiters:
An Overview of Trademark Counterfeiting Litigation Under the Lanham Act posted by Mark Sommers, October, 1999. Lengthy but a good outline of the possible steps a trademark owner can take. It points out the legal steps required to do many things such as seizing infringing material, etc.
Taking Pictures of Our Product Is Copyright Infringement by Greg Beck of the Public Citizens Litigation Group.
The Man Who Dared To Sell Auto CAD R14 OnEbay, on 3D CAD News blog, Wednesday, September 12, 2007.
Trademark Abuses Of The Month posted by David Nieporent, June 27, 2007, about Ed Hardy and others who are abusing the VeRO program.
Trademarks on eBay: worse than the DMCA posted by David Alpert for The Information Policy Action Committee, June 22, 2007
Trademark Infringement -Perceived meaning of the mark, article by Sam Biers for 4lawschool.com. Discusses New Kids On The Block ruling by the 9th Circuit. December 12, 1997

U

Universal: You don't own those promotional CDs we gave you by Nate Anderson, April 09, 2008. Article about lawsuit filed by Universal to stop eBay sales of promo CDs.
Using U.S. Intellectual Property Rights to Prevent Parallel Imports, a lengthy article about parallel imports and the Quality King decision, by Lynda J. Zadra-Symes and Joseph J. Basista, May 1998, for Knobbe, Martens, Olson & Bear, LLP.
Universities strive to protect brand, Associated Press, Daily Oklahoman, November 17, 2007. The weekend of Oct. 26-28, more than 15 vendors filed complaints of theft against Suzanne Staley, OU's director of brand development, and Judy Barnard, OSU's director of brand development, after the two women allegedly went through the event and seized merchandise that contained any reference to their respective universities, accompanied by an off-duty officer from another jurisdiction. This article sounds like a puff piece dictated by the universities.

V

Vendors don't want you to sell used software as you would used books or CDs, The Gripe Line, by Ed Foster and InfoWorld from 2001, about software auctions on eBay and how software vendors are abusing the DMCA and VeRO.
Vendors won't be charged, DA says, Associated Press, News OK, November 9, 2007. The Oklahoma County district attorney's office does not intend to prosecute vendors who allegedly infringed the University of Oklahoma and Oklahoma State University trademarks by selling college-themed merchandise at An Affair of the Heart, Assistant District Attorney Scott Rowland said this week.
VeRO takedown - but not the usual way, by Ron Coleman, July 8, 2008, about the lawsuit filed against Lauerel Burch.

W

What Is a Derivative Work ... (continued) By David Goldberg and Robert J. Bernstein from September 19, 1996. Discusses how the 9th Circuit is out of step.
Woman Threatened With Lawsuit Over...Embroidery?, by WIBW reporter Brian Quick. Short piece about a typical ESPC victim. March 13, 2008
Women face inquiry in confiscation of OU, OSU crafts, Associated Press, Tulsa World, October 31, 2007. Representatives from the University of Oklahoma and Oklahoma State University face larceny of merchandise complaints following one of the country's largest arts and crafts shows where OU and OSU-themed merchandise was confiscated.
Woods v. Bourne Co article discussing the 2nd District case that established a derivative has to be copyrightable.

X

Y

Z

More articles as they are found.

Federal Court Cases
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Federal Statutes
Copyright Act 17 U.S.C. 5 | Digital Millenium Copyright Act 17 U.S.C. 12 | Lanham Act 15 U.S.C. 22