Tabberone's Hall of Shame - John Deere and De Novo Legal

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"The only thing necessary for the triumph of evil is for good men to do nothing"
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John Deere
and Deere's CyberCops
DeNovo Legal
Hall Of Shame Member
Added December 1, 2007

Last Updated - January 1, 2010

Nothing Bums You Out Like A Deere

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.

Doesn't everyone like John Deere?. What's not to like? They have (had) a clean image and a great product. They are an internationally recognized symbol of performance, quality, and reliability. So, you ask, what in the world did The Deere Do to get into Tabberone's Trademark & Copyright Abusers' Hall of Shame? We'll enlighten you right now.
rainbows*n*smiles is a work-at-home-mom (commonly abbreviated WAHM) whose sole income is selling on eBay. She has a nice niche that works for her. She uses fabric to make and sell checkbook covers and the like. She said it beats the three part-time jobs she used to have to work. As of December 1, 2007, she had a 99.9% feedback rating on eBay with almost 5,000 unique feedbacks. A lot of happy customers.
Imagine her surprise when she began receiving threatening emails through the eBay messaging option from a company claiming to represent the John Deere Company. This company is one of the many Cyber Cops who have conned companies into believing the Cyber Cop is protecting the company's trademark when it appears all they really are doing is racking up them billable hours. We suggest a new motto for John Deere: Nothing Bums You Out Like A Deere.
The Cyber Cops are a company called De Novo Legal, LLP, located at 171 Saxony Road, Suite 209, Encinitas , California 92024. It appears to be run by two "lawyers", Maria Johnson, Esq. and Pollie Gautsch, Esq., or as we are calling them, "The Clueless Sisters, Esq".
De Novo Legal, LLP sent rainbows*n*smiles emails about two of her auctions where she was using licensed John Deere fabric to make her items and then sell them. The first email on November 26, 2007, targeted auction 220174632801, "Checkbook Cover Debit Set w/ John Deere Brown Fabric". The second email on November 26, 2007, targeted auction 220108220534, "Debit Card ID Holder w/ John Deere Tractor Green Fabric".
Auction 220174632801, "Checkbook Cover Debit Set w/ John Deere Brown Fabric" has been recreated here for your viewing plasure. This gives you the chance to see exactly what is at issue.
De Novo Legal, LLP, acting on behalf of John Deere, asserted in the first mail:
[she was] "using the Deere trademark in an unauthorized manner, as your listings are likely to confuse consumers into thinking that these items are licensed Deere-branded products".
The problem here is that the "unauthorized use" of a trademark falls under the Lanham Act. The Lanham Act deals with counterfeits. The act of counterfeiting someone's trademark, or placing a mark similar upon a product, with the intent to deceive the public as to the origin or manufacturer of the, is infringing. The Lanham Act repeatedly refers to this as the "unauthorized use" of another's trademark. Using the trademark (in this case, the name John Deere) to fairly and accurately describe an item is considered "fair use" under the same Lanham Act. The "mark" was not being counterfeited. The fabric being used was licensed John Deere fabric.
They also said in the first email:
"Please remove the John Deere trademark in your listing title. and within the body of your description state that your items are not John Deere licensed items."
What is De Novo Legal, LLP smoking out there in California? That must be some whacky-weed. In the body of the description is the exact following statement colorized, back-lit in yellow, and displayed ABOVE the description of the product!

This is not a licensed John Deere Product. It is however hand-crafted with care from licensed John Deere fabrics. Rainbows*n*Smiles is not affiliated with John Deere or the manufacturer of the licensed product.

She WAS stating the items were not John Deere Licensed items, you bozos. Very plainly and very prominently. Only a complete MORON, or pair of MORONS, collectively called De Novo Legal, LLP, or as we are calling them, "The Clueless Sisters, Esq" acting on behalf of John Deere, could miss this. And since she already has the right under fair use to use the name "John Deere" to describe her item, there was nothing with which to comply.
Has the Deere been chomping on loco weed in the pasture to hire such an incompetent and obviously uninformed company such as De Novo Legal, LLP to harass legitimate eBay auction sales? rainbows*n*smiles ended the two auctions because she wasn't sure what to do. She has a small at-home business to protect. But, since she isn't doing anything wrong, why does she have to "protect" anything? Because jerk-wad companies, like De Novo Legal, LLP, engage in threatening, unethical, and questionable tactics to pad their billing.

At one time, many years ago, John Deere was on our friendly list. They appeared to understand that the use of lawfully acquired fabric to make and then sell items was legal unless the item was described in such a way as to confuse the public. No confusion here, however. John Deere has joined our list of companies who have crossed over to the Dark Side.

Rebuttals
In an effort to provide a balanced view, we make the following offer to anyone who feels they have been wrongly accused on this web site.
If you, or your company, have been referenced on these pages, and you would like the chance to post a rebuttal, we will post your rebuttal (provided it is in good taste) so others can read it. The rebuttal must be submitted in a format that can easily be converted into HTML. We reserve the right to alter the rebuttal to make it more readable. However, we will not alter the content (unless there is offensive material to be removed). We also reserve the right to comment on any rebuttal received. Emails protesting the content of this web site may be treated as rebuttals by us at our discretion.

Federal Court Cases
Alphabetically | by Federal Circuit | by Subject | by Court Quotations

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
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