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  "The only thing necessary for the triumph of evil is for good men to do nothing"
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Laurel Burch Artwork
Hall Of Shame Member
Added July 7, 2008

Last Updated November 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.

Laurel Burch must be spinning in her grave. She died last year of a rare bone disease. She was a strong and determined woman who started with little and refused to be defeated even though she failed in business once and struggled with congenital disorder osteoporosis. Barely nine months after her death her son, Jay Burch, seemrd to not care about her reputation or the business she worked so hard to build.

We have long advocated the fact that making and selling items made from licensed fabric is perfectly lawful as long one does not misrepresent the item as being licensed itself but made from licensed fabric. This is not some silly notion we evolved. You see, there are federal court cases that state that it is perfectly legal. In Precious Moments v La Infantil, 971 F. Supp. 66 (D.P.R. 1997), the court stated making and selling items made from licensed precious Moments fabric was lawful. In Scarves By Vera, Inc. v. American Handbags, Inc, 188 F. Supp. 255 - US: Dist. Court, SD New York 1960, the court declared it was lawful to cut copyrighted and trademarked towels to make and sell handbags. Also see the first sale doctrine.

And, we have personally been in federal court six times (M&M/Mars, Disney, Major League Baseball, Sanrio, United Media, Debbie Mumm) over the use of licensed fabrics and every time the other side wanted to settle rather that litigate what they knew they would lose. And folks, these companies have a lot more money than Laurel Burch Artwork. What Laurel Burch Artwork makes in one year is chump change to M&M/MARS, Major league Baseball, Sanrio, United Media and Disney, and they didn't want a court fight over this issue.

We can now add the recent order handed down in the Middle District of Pennsylvania for the Third Circuit whereby a Pennsylvania eBay seller, representing herself, got a declaratory judgment against Laurel Burch Artworks stating that her use of their licensed fabrics to make and sell items was not trademark or copyright infringement. In paragraph #4 of the Order:

It is declared that plaintiff has not infringed upon defendant’s copyright and trademark rights. Defendant is ordered to instruct eBay to reinstate the listings that it ordered eBay to remove on copyright and trademark grounds and to refrain from challenging any future listings by plaintiff based on the same grounds.

Jay Burch, president and acting asshole of Laurel Burch Artworks ignored the service upon him of the lawsuit and ignored the motion for judgment. What is his problem? Only a complete flaming idiot ignores a federal lawsuit even if it was filed pro se (representing yourself). The case here isn't settled yet as the Court has ordered a hearing on damages. This last part should be interesting since the motion for judgment included a request for $100,000 damages for each of the ten auctions illegally terminated by Laurel Burch Artworks, now apparently being run into the ground by Jay Burch, president and acting asshole. We wonder what is in the water in Marin County were Jay's office's are located.

Ina Steiner of the on-line e-newsletter Auction Bytes has done two pieces on this decision. The first piece, eBay Seller Wins Trademark Case Against Laurel Burch Artwork, talks about the decision. The second piece, Interview with eBay Seller Jennifer Heist is a personal interview. Both are worth reading.

The blog web site, the LIKELIHOOD OF CONFUSION®, posted an article called VeRO takedown - but not the usual way, by Ron Coleman, July 8, 2008.

Jay Burch Called A Liar!

UPDATE - July 26, 2008 - We find PACER to be such a handy tool to have. Every so often we check court records to see what's been happening. With PACER, if you know the court and the case number, you can see what's been filed and get a copy of it. We were looking for the clerk's filing of the default and lo and behold, that

"after 105 days of ignoring the lawsuit, and ignoring the Motion For Summary Judgment, and ignoring a copy of the Reply Summary Judgment, that two days before the court ordered a default judgment, the skies in Thailand opened up, the sun shone down brightly on Jay Burch, and he had a revelation. While in Thailand, a third-world country with limited internet access, he suddenly determined he needed a lawyer and contacted his present counsel." (emphasis in original)

                from Plaintiff's Response To Defendant's Motion To Set Aside Entry Of Default filed July 22, 2008

Seems Jay Burch hired some bottom feeder named Timothy P. Polishan to represent him and try to get the default judgment set aside. In the response Jennifer Heist filed she also says:

There is negative “culpable conduct” on the part of the Defendant. He is lying about not being familiar with the rules and/or he is lying about having counsel in March; one or both. He is lying when he tries to portray the “settlement talks” as being a negative time factor when in fact they were not. He is lying when he attempts to portray his mother's death as a reason he has little time. He is lying about not having the time to consult an attorney.

He is lying to this court in a desperate attempt to get the default judgment set aside

So Jay, tell us, we're all dying to know. Are you lying to the federal court? Hmmmmm? Inquiring minds want to know. Stand up like the wimp you are and announce to the world: are you lying or you not? We can't wait to see your reply to her claims.

And, in a more polite tone, she says the lawyer Jay Burch hired, some bottom feeder named Timothy P. Polishan, also lied to the court! We're shocked, we say, we're shocked, that someone would allege that a lawyer, an officer of the court, would lie. (snicker, snicker)

Reading the motion filed by Jay Burch's bottom feeding lawyer named Timothy P. Polishan, we wonder that they are trying to accomplish. The motion portrays Jay Burch as some sort of baboon swing from tree to tree, gleefully unaware that he has a company to protect. Only an apple-brained moron would ignore a federal lawsuit like he did. And now (actually July 8) he's claiming it wasn't his fault. He was busy. Huh? Busy doing what?

From what we see about Jay Burch from the response, and evidence submitted, Jay Burch is lying to the federal court. Jay, baby, your mother must be very proud of you. You're dragging her good name and reputation through the pigsty and back. It's obvious Jay didn't get his mother's brains. He's at the shallow end of the gene pool from what we can see.

And we like Laurel Burch's artwork and jewelry. And Tabberone has some, including decorator plates, earrings, scarves, t-shirts, etc. Jay, after you've finished degrading you mother's reputation, if you're looking for more recognition, your village called and they are too embarrassed to admit you were once their idiot and they do not want you back.

It seems that Burch settled the case rather than fight the issues. Too bad. We would have loved to see how this one turned out.




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