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sHIT Entertainment
Hall Of Shame Member
Added March 21, 2007

Last Updated December 28, 2009

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.

Why are all of these children's characters smiling? Because they agree with us: HIT Entertainment appears to have left a whopping big "S" off the beginning of their name. But we won't.

Inquiring minds want to know exactly what did sHIT Entertainment do to get into Tabberone's Trademark & Copyright Abusers' Hall of Shame.

It seems that an eBay seller named glittersky5 bought some Thomas The Tank Engine and Bob The Builder fabrics and made some children's items from them. Her crime, according to sHIT Entertainment, was to try and sell these items on eBay. So what did sHIT Entertainment do? They had their legal brain-rust, Matthew W. Carlin, of Gibney, Anthony & Flaherty, LLP (New York City), send glittersky5 a Cease & Desist letter accusing her of selling "unauthorized Bob the Builder apparel" saying that she was guilty of trademark infringement because sHIT Entertainment doesn't make does not produce "such Bob the Builder apparel".

Is it just us or does everyone believe that one of the requirements for attending law school should be the ability to read and comprehend basic English? The listings by glittersky5 plainly stated that they were hand-crafted. Handcrafted doesn't mean they were "manufactured". A simple email to inquire about the source of the item, licensed fabric, would have settled that issue. But, wait! There's more.

It appears that attorney Matthew W. Carlin, of Gibney, Anthony & Flaherty, LLP (New York City), must get paid by volume because he sent glittersky5 an almost duplicate letter/email on the same day about Bob The Builder apparel. Bob The Builder is another property of sHIT Entertainment. So, why not have one letter do the job of two? Mo' money, mo' money, mo' money! Looks like Matt-boy will be hitting up HIT for mo' money, mo' money, mo' money. That's what corporate lawyers do! Hey, Matt? Can you spell S-T-U-P-I-D?


Matthew W.
Carlin
But we wonder about Matthew W. Carlin, of Gibney, Anthony & Flaherty, LLP (New York City). Three times in the letter he refers to Thomas The Tank, leaving off "engine". Seems to us Thomas The Tank should have a turret and treads. Doesn't Matthew W. Carlin, of Gibney, Anthony & Flaherty, LLP (New York City) know his client's product? Or maybe he was short on some letters (all those letters he wrote must have used up his play blocks).

On August 13, 2007, glittersky5 sent Matthew W. Carlin a response pointing out several things about the items being hand-made from licensed fabric and the Precious Moments Case.

And, to make matters worse, Matthew W. Carlin, of Gibney, Anthony & Flaherty, LLP (New York City), and sHIT Entertainment are going 180 degrees opposite of what the fabric manufacturer, Cranston/VIP, was telling people in June, 2003. According to Cranston/VIP:

"Once you buy the fabric, it is yours to do virtually anything you want. You can cut the fabric up you can make it into a craft product, an apparel item, whatever you like! (However, the fabric should not be used for children's sleepwear, as the fabric does not meet children's sleepwear standards for flammability). You can sell it, keep it, or give it away. Keep up the good work and keep buying our fabric!"
Hey, Carlin, you baboon, do you know what your licensees are doing and saying? (Please, folks. Do not sic PETA on us for insulting baboons.)

But, wait! There's more! eBay recognizes that handcrafted items from licensed fabric is perfectly legal to sell on eBay! In November 2005, eBay sent out emails telling people that selling these hand-crafted items was permissible, however, "we require that the title of these listings be worded in a particular format". That format deals with the wording, not the licensed material incorporated into the item. So, what do we have here? The federal courts in the Precious Moments Case have said using licensed fabric is legal; the federal courts in Scarves By Vera, Inc. v. American Handbags, Inc say that making items from copyrighted and trademarked fabric is legal; Cranston/VIP, the fabric manufacturer, has been telling people that using licensed fabric to make and sell things is legal; eBay has been telling people that using licensed fabric to make and sell things is legal. So, Matt? Did you not get the memo? Or did you sleep through Intellectual Law 101 or are you just some sort of ass? We are placing our bets on the "ass" definition.

As we expected, Matthew W. Carlin, of Gibney, Anthony & Flaherty, LLP (New York City), replied with the usual corporate lawyer bullshit about glittersky5 was violating trademark law, ignoring the Precious Moments Case which specifically dealt with copyrighted and trademarked fabric. His arguments are bogus as we have pointed out in other cases. The basic attitude of these BS lawyers is that the little person won't, and can't, fight back. That's why we call lawyers like Matthew W. Carlin, of Gibney, Anthony & Flaherty, LLP (New York City), bottom-feeders. They are the lowest of the low. Can it be he's been eating some of that lead-based paint used on those re-called Thomas The Tank Engine toys? He sure acts like it. What's next, Matt? Got some widows and orphans to evict?

And you know we can't ignore this jab. How about the claim made by Matthew W. Carlin that Thomas The Tank engine licensees "are required to follow strict guidelines regarding the quality of such products." What do these "strict guidelines" include? The formula for lead-based paint? You're too funny, Matt! Hit outsources the manufacturing (and the painting with lead-based paint) to China which is an oppressive Communist regime. The workers in those factories are virtual slaves which means Thomas The Tank Engine toys are made with slave labor. Importing product manufactured using slave labor is prohibited by Title 19 U.S.C. 1307 but we doubt you care about little technicalities like that.

 

 

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