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Burberry
Hall Of Shame Member

Burberry Plaid


Last updated May 1, 2016

We have located two federal courts cases concerning the use of fabric to make items to sell:

In Precious Moments vs La Infantil, 1997, the federal court invoked the first sale doctrine in denying Precious Moments attempts to block the use of its licensed fabrics to make bedding for sale. The 1st Circuit Court said making a fabric item from fabric lacked any originality so it was not copyright infringement. Since then, M&M/Mars, Disney Enterprises, Major League Baseball, United Media (Peanuts fabric), Sanrio (Hello Kitty fabrics), and Debbie Mumm, have been sued when these companies tried to block the eBay sales of items hand-crafted from their licensed fabrics. Every one of them settled rather than risk losing the issue in court.


In Scarves By Vera, Inc. v. American Handbags, Inc, 188 F. Supp. 255 - US: Dist. Court, SD New York 1960, American Handbags was using towels manufactured by Vera to make handbags for sale. On some of these handbags made with plaintiff's towels there could be seen, at the bottom, the name Vera coupled with the figure of a Scarab or Ladybug, all three of which were registered trademarks of Vera. The judge rejected Vera's copyright claims.


It should be noted that in both cases the judges required the defendants to provide disclaimers attached to the items because the items were being sold in stores. The disclaimers were to plainly disavow any relationship between the manufacturer of the item and the trademark owner. This was done so "an ordinary, intelligent purchaser" would not be misled that there was any connection. When selling on-line, a prominent, highly visible and well-placed disclaimer, such as our recommended Tabberone Disclaimer, would likely serve the same purpose and legal need as the disclaimers required by the courts. Precious Moments disclaimer court quotation and Scarves By Vera disclaimer court quotation.


UPDATE - May 1, 2016
Another Tabberone Exclusive (The hits just keep on coming!)
In May 2010, a Seattle-based restaurant, Sur La Table, Inc, filed a lawsuit against Burberry in the Western District of Washington (Case No. 10-00850). The federal lawsuit was for a declaratory judgment for non-trademark infringement over the issue of the so-called famous Burberry Plaid design. The crime of Sur La Table? Selling a pink plaid apron. Click here for the full 17-page complaint in PDF format. As a court document, it is public domain so feel free to use it as you wish.

The registered Burberry plaid mark, seen to the right, is registered with the Trademark Office. But as the lawsuit claims, that is nothing more than a generic pattern that Burberry has appropriated for its exclusive use. Generic trademarks are not allowed. Do not tell Burberry that. Over the years Burberry has been filing for trademark protection of their basic plaid design in multiple color combinations, not just their brown and black coloring. We believe that Burberry has been doing that so as to expand their false claims of owning the rights to virtually all plaid designs and color combinations. That supports their extortion claims of "similar" designs being used by others.

Pink Plaid Apron But, back to the lawsuit. If the parties reach a settlement without the defendant having to respond to the complaint, search engines rarely have the actual case available. Unless someone, like Tabberone, finds the case and posts it on-line. The parties here reached a settlement and the case was dismissed October 14, 2010, some five months after filing. Why would the almighty Burberry settle instead of defending their trademarks? We think they were afraid of the word "GENERIC". Tough to defend when the claim appears to be true. We have personally seen billion-dollar companies run from trademark and copyright lawsuits, afraid to actually defend their claims that started the lawsuits.

It also appears that Burberry has refined their extortion demands. Instead of demanding a flat amount (penalty) for the alleged trademark infringement, Burberry now wants sales information so Burberry can apply a sliding scale and demand a larger extortion amount. This is a similar tactic that used by other cyber extortionists like Continental Enterprises and CAPS. The bottom line is money, more money and more; Not trademark infringement.


UPDATE - August 7, 2011
Another Tabberone Exclusive
Folks, we just could not make this up so we provide physical proof. An internet source that shows someone else believes, as we do, that Fabio Silva is a "Somewhat Ineffective Representative" for Burberry. ZoomInfo.com claims to have the "industry's most comprehensive profiles on business people and companies" Besides "in-depth profiles", ZoomInfo.com's "professional profiles include verified contact information, biography, work history, affiliations and more."
Now we know there will be those who believe we made this up. This is on the ZoomInfo.com web site, August 7, 2011, at http://www.zoominfo.com/people/Silva_Fabio_26653876.aspx but we are guessing it will disappear so we saved a screen shot of it for those of you who might believe otherwise. Click here to see the page as a JPG file.


UPDATE - February 2, 2009
Another Tabberone Exclusive
Burberry Resorts To Trademark Extortion For Revenue Enhancement. Now Burberry has joined the ranks of what we call Trademark Extortionists. This tactic involves sending an alleged infringer a threatening letter demanding they stop unspecified activities and pay a specified sum of money otherwise they may face legal action. A scum-ball tactic that is extortion, nothing more. Invariably, as we have seen in the letters, the claims of liability are wildly exaggerated and few facts are listed. In this case, the scum-bag who is making the threats is one Melissa Roth, Associate Counsel (which we assume means she fetches coffee for Fabio, arf, arf. Does she wear a collar as well? Fabio, you dog, you.).


Tabberone welcomes Burberry to the Hall Of Shame, circa 2004, and their less than fabulous legal counsel, Fabio Silva, by giving the five reasons why we believe they belong here:
  • Burberry terminates auctions and then either refuses to response to legitimate inquiries, or, as they state on their About Me Page, they will try to respond in two weeks (?? two weeks!!). At times in the past they did respond more effectively.
  • Burberry terminates auctions for licensed Burberry articles without first asking the seller the source of these items and without a lawful reason for terminating them.
  • Burberry does not go after real counterfeiters even after they have been told of them. We know. We told Fabio about some and he ignored us.
  • Burberry terminates auctions for selling fabrics that are similar to the Burberry Trademark, using the old trademark cliché of "confusingly similar", yet they never really inquire as to the source of these fabric so they can go after the "real" alleged infringers.
  • Burberry tries to extort compliance from "infringers" by claiming they could get monies from them through a court action. As of February 2009, Burberry has shown they will demand money as well as compliance.
  • Fabio Silva, who seems to be Burberry's counsel, has dropped the ball. We once actually thought there was hope for him but he has let his lawyerly instincts get in the way of reason. Burberry attempts to claim ownership of almost any plaid they want. However, a quick look at their web site on April 4, 2007, resulted in not one image of their so-called "famous" plaid. Hmmmm. However, Burberry has laid claim to ALL COLOR COMBINATIONS of what they call the Burberry Check.

    Fabio and Burbrry came to our attention April 2, 2004, when we were contacted by a seller who had purchased fabric that allegedly mimicked the Burberry trademark. While we don't agree with Burberry that their plaid has gained secondary meaning as a trademark, we do agree that that pattern is a Burberry trademark. To most people, plaid is plaid. What we disagreed with was that Burberry, through their somewhat ineffective representative, Fabio Silva, seems to have failed to inquire and pursue the real infringer, the manufacturer of the fabric. They displayed no interest in that, preferring to punish the more innocent infringer, the unwitting end-user, by saying they weren't provided with adequate documentation. Burberry "claims" they do not sell fabric but there seems to be a lot of "Burberry" fabric out there. How did that happen?

    At one time, Fabio had eBay include his email as contact information in the "Why Ended" email sent by eBay. A mere six months later he told eBay not include it. Why, Fabio? Too many complaining emails? Did they interfere with your naps and golf? Instead, Fabio wants sellers to go to his eBay About Me Page and read the some-what incorrect chest-beating claims by Burberry about how they defend their trademarks. Burberry's claim that it "enjoys significant common law (unregistered) rights" is exaggerated. So is the "without written authorization" chestnut used by so many threatening lawyers. The wording and tone of the page is designed to put fear in your soul. Burberry doesn't define "Confusingly Similar" and we're guessing they have a very broad interpretation of what qualifies.

    Fabio recently terminated three auctions claiming "parallel imports" violations. For those of you unfamiliar with parallel imports, we copied some excerpts from the law web site of Ladis & Parry that explain US and British Laws concerning parallel imports as they would apply to the terminated auctions. The items being offered were authentic Burberry scarves bought in England from a Burberry's store.

    The three terminated auctions for authentic Burberry merchandise, with good pictures, can be viewed here:

    1. Auction #1
    2. Auction #2
    3. Auction #3

    Note the attempt by the seller to furnish pictures to show the tags and detail. These were genuine Burberry products and Burberry terminated the auctions. Shame on Burberry and their not so fabulous Fabio. Fabio doesn't produce; he cries. When confronted with the accusation that he shuts down eBay auctions while ignoring web sites that openly sell Burberry fakes, he whines, sob, that it isn't all that easy to shut down a web site. BULLSHIT, you two-faced little snot. All it takes is an affidavit from you to the provider. We think you are wimping out because you fear actually having to crack a law book and doing something LEGAL for a change.

    Update April 4, 2007

    Burberry's at it again. In March 2007, a paralegal at Burberry, Lori Sigismondo, terminated an auction, telling the seller the item was counterfeit. When the seller provided additional pictures, Burberry relented, saying the item was authentic. What? Burberry can't afford an intelligent paralegal? Hey, eBay! Isn't this the type of abuse you said you would not allow? Lori, get a job flipping burgers. Maybe you qualify to say, "Would you like fries with that?" without screwing up and hurting people.

    Update April 9, 2008

    We discovered the people at Scooter Seat Covers have a beef with Burberry as well. Someone needs to take Burberry to federal court to stop them from trademark misuse.


    UPDATE - February 2, 2009
    Another Tabberone Exclusive
    Burberry Resorts To Trademark Extortion For Revenue Enhancement. Now Burberry has joined the ranks of what we call Trademark Extortionists. This tactic involves sending an alleged infringer a threatening letter demanding they stop unspecified activities and pay a specified sum of money otherwise they may face legal action. A scum-ball tactic that is extortion, nothing more. Invariably, as we have seen in the letters, the claims of liability are wildly exaggerated and few facts are listed. In this case, the scum-bag who is making the threats is one Melissa Roth, Associate Counsel (which we assume means she fetches coffee for Fabio).


    Fabio is full of Carp!
    Could it be why Fabio has brown eyes? On May 1, 2016, we plugged "burberry replicas" into google and got some 26,300 hits. Sometimes correct wording is important so we also tried "replica burberry", and according to google, we got "About 242,000 results (0.64 seconds)"

    Years ago we asked Fabio why Burberry did not go after counterfeits being sold on replica web sites on the internet. He said it wasn't that easy. So, we suppose, Burberry turned its attention to very small sellers who could be intimidated into paying extortion for alleged trademark infringement. Shutting down replica websites would accomplish far more to get rid replica Burberry than trolling small sellers. But, extorting money from small sellers is far more profitable. Isn't it, Fabio?

     

     

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