Tabberone is pronounced tab ber won
not tay ber own
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Tabberone is pronounced tab ber won |
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From: Michael Van Wieren Cc: Jack Landrigan Sent: Wednesday, February 25, 2009 4:48 PM Subject: RE: MC019 eBay Listing Removed: Trademark Violation - Unauthorized Item (277571164) Roberto: I am unsure as to whether your statements below were drafted by you or “cut and paste” from other sources. However, those statements center on copyright law and are not applicable. We are discussing trademark law. The First Sale Doctrine, as it applies to trademark law, is a defense, not a right which is granted – let alone a right granted by the Supreme Court, whose role is to interpret law. The First Sale Doctrine as it applies to trademark law is narrowly tailored and does not apply when the alleged infringer sells trademarked goods that are materially different then those sold by the trademark owner. The threshold for “materially different” is low and includes even subtle differences between products. Your product is materially different which is self-evident. You are not reselling licensed fabric. You are selling a product of first creation. The mark holder has the right to control the initial sale of the finalized product – especially the quality of the good that is being sold. They have never had the opportunity to inspect certain materials such as the thread you used, the stitching techniques employed or the degree of inconsistency that arises from any “handcrafted product.” Furthermore, the court in Au-Tomotive Gold, Inc. v. Volkswagen of America, Inc., 544 F.Supp.2d 933 stated that “lawful acquisition of an emblem does not give them the right to attach it to a new item of manufacture that is not licensed by VW.” As it applies here, your acquisition of licensed fabric does not grant you the right to create a new item from the fabric and deem it outside the scope our university-clients’ trademark rights. You claim that no reasonable person would believe that this is a licensed product because of your disclaimer. While not granting any creditability to this statement, you fail to mention post-purchase confusion which can be used to establish likelihood of confusion. Likelihood of confusion can be established if someone other than the purchaser simply sees the item after it has been purchased. Lanham Trade-Mark Act, § 1 et seq., 15 U.S.C.A. § 1051 et. seq. I hope this response helps to clear any confusion as to why your auction was closed. Very truly yours,
Michael Van Wieren |
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