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Last updated - January 29, 2010

The Copyright Claims The copyright claims against Purple Mountain Sweaters, Cheer Chics Charms, and Blue Brownies are fairly similar in content and in the lies told by D Scott Hemingway, the erstwhile and lowly attorney feeding off of m3girl designs. We do not have a comparison of artwork between Blue Brownies and m3girl designs but based upon the Comparison Artwork Table that we have compiled for the other two defendant parties, we have no reason to believe that the artwork of Blue Brownies is infringing. And since our Copied Artwork Table shows that m3girl designs copies a good portion of the images from other sources, most likely without permission or payment, the claim of "unique artwork" created by the Plaintiff is not only suspect but a deliberate lie. The question of whether the Defendants infringed on the copyrights of m3girl designs turns on whether their products are substantially similar to the protectable elements of the Plaintiff's product. Country Kids v. Sheen, 77 F.3d 1280 (10th Cir 1996); Folio Impressions, Inc. v. Byer California, 937 F.2d 759 (2d Cir. 1991); Yankee Candle Co. v. Bridgewater Candle Co, 259 F.3d 25 (1st Cir. 2001). Since the Plaintiff, m3girl designs, has three registered copyrights, the burden of proof that the copyrights are not valid falls upon the Defendants. The first challenge to the registered copyrights would be that the items are not copyrighted but rather the pictures of the items are copyrighted. For instance, Registration Number VA0001665059 dated April 27, 2009, is titled Snap Caps Keepers and it consists of "photographs of product" and is a Visual Material. What is protected under this copyright registration? The pictures of the products but not the products in the pictures. m3girl designs is attempting to claim her Snap Caps Keepers has copyright protection when in fact it is only the specific pictures of the Snap Caps Keepers that are copyrighted. Likewise, the images on the bottle caps. It is only those images that would qualify for copyright protection and not the "idea" of art work in bottle caps. Registration Number VA0001665063 dated April 27, 2009, is titled "Snap Caps Jewelry Design/Marketing Materials". This is registered under "Visual Material" and involves "Photographs of product". This submission was 25 pages long (the attached PDF copy is 26 pages long because of the "certification" attached as page 1). The first eight pages are badly done pictures of various bottle cap art work. Page 9 and 10 are both sides of what appears to be an advertising brochure about m3girl designs and what they sell. Pages 11 and 12 appear to be advertising circulars than mention or highlight m3girl designs. Pages 13 and 14 are screen shots of the web site. Pages 15 through 25 are much better photographs of their collections and their art work. No where in the advertising pages is there the trademark SNAP CAPS®, or the words SNAP CAPS, nor is there the other claimed trademark, THE ORIGINAL INTERCHANGEABLE BOTTLECAP NECKLACE® being used as a trademark. The brochure (pages 9 and 10) mentions magnets several times and does use the word necklace but not in the same paragraphs. The advertising on page 11 uses the word "interchangeable" but in a descriptive sense, not as a trademark. Page 12 twice uses the phrase "magnetic bottlecap necklace" but not as a trademark but as a descriptor of a product. Federal law requires the use of either "™" or "®" to show use as a trademark. There is no mention of either SNAP CAPS® or THE ORIGINAL INTERCHANGEABLE BOTTLECAP NECKLACE® in the two screenshots of the web pages. Registration Number VA0001684413 dated August 27, 2009, is titled "Snap Caps Marketing Materials Vol. III" and is three pages long (PDF file is three plus the certificate). Pages 1 and 2 are photographs of more bottle cap art work. Page 3 is what appears to be more advertising for the Snap Cap™ Keepers. This time SNAP CAPS has the little &trade: symbol. SNAP CAPS® was federally registered May 26, 2009.

Claim I - No reasonable person would compare the art work of the Plaintiff and the art work of any of the Defendants and conclude there was any copying done. See the Comparison Artwork Table for yourself. The claim of substantial similarity by m3girl designs applies to the actual physical artwork, not the underlying concept or idea. The "jewelry artwork created by the Plaintiff" is (except where she blatantly copied the artwork of others) each individual design and not the idea of initials on an animal skin background or the idea of using a basketball, softball, or other sports object, on the inside of a bottle cap. See PPS, Inc. v. Jewelry Sales Representatives, Inc.,, 392 F. Supp. 375 (SD NY 1975); Country Kids v. Sheen, 77 F.3d 1280 (10th Cir 1996); Folio Impressions, Inc. v. Byer California, 937 F.2d 759 (2d Cir. 1991); Yankee Candle Co. v. Bridgewater Candle Co, 259 F.3d 25 (1st Cir. 2001). Claim II - m3girl designs is illegally attempting to claim that the "idea" of "interchangeable bottle cap necklaces" and the idea of a 'magnetic "keeper" board' belongs to m3girl designs and is protected by copyright registration.

11. Three United States federal copyright registrations have been obtained covering the interchangeable bottle cap necklaces, their unique artwork, and a magnetic “keeper” board, which includes United States Copyright Registration Nos. VA-1-665-063, VA-1-684-413 and VA-1-665-059. The Plaintiff has been assigned all rights to the above-identified Copyright Registrations. [emphasis added]

Cf 09-cv-2334, paragraph 11, and 09-cv-2335, paragraph 10, and 09-cv-2390, paragraph 11. This is a false claim in as much as the registrations do not cover "interchangeable bottle cap necklaces" because "interchangeable bottle cap necklaces" are not mentioned anywhere in the three copyright registrations. Even if "interchangeable bottle cap necklaces" were mentioned or descibed in any of the three registrations, the copyright would not apply to the idea as claimed. As for the "keeper boards", the registrations only cover the specific photographs taken of the 'magnetic "keeper" board'. In any event, the registrations would not cover the idea of these boards but rather the manifestation of the idea. The "interchangeable bottle cap necklaces" and the magnetic "keeper boards" are subjects for patent protection, assuming they would be issued a patent (as of February 1, 2010, there are no patents issued or pending to m3girl designs or Maddie Bradshaw according the the Patent Office on-line search facility). Any IP lawyer who does not know this is, or claims he did not know this, is lying. D Scott Heminway is lying when he makes the claims. Claim III - m3girl designs is illegally attempting to claim that the bottle cap artwork idea belongs to m3girl designs.

13. The Defendants have purposefully, willfully and with bad faith intent copied the copyrightable subject matter, the jewelry artwork created by the Plaintiff and the unique design of selling jewelry painted on the interior (inside) of the bottle cap. [emphasis added]

See 09-cv-2334, paragraph 13, or 09-cv-2335, paragraph 12, or 09-cv-2390, paragraph 14. This is a false claim because ideas are not protected under copyright law and m3girl designs has no patents issued or patents pending covering anything much less "jewelry painted on the interior (inside) of the bottle cap", therefore there are no rights at issue. Besides, the artist Remi Reubel made bottle cap jewelry famous in 1986. Not only did she use bottle caps in large and really "unique" ways, she painted the insides of bottle caps for use as earrings, bracelets and necklaces. The "idea" is public domain. A cursory search of internet references show that by 2003 bottle cap jewelry was already being sold by a variety of artists, three years before Maddie Bradshaw "invented" bottle cap jewelry.

Misappropriation and Unfair Competition In Seatrax, Inc. v. Sonbeck Intern., Inc., 200 F. 3d 358 5th 2000), the Court of Appeals for the 5th Circuit stated:

The law of unfair competition is the umbrella for all statutory and nonstatutory causes of action arising out of business conduct which is contrary to honest practice in industrial or commercial 368 matters. American Heritage Life Ins. Co. v. Heritage Life Ins. Co., 494 F.2d 3, 14 (5th Cir.1974). Misappropriation is a branch of the tort of unfair competition which involves the appropriation and use by the defendant, in competition with the plaintiff, of a unique pecuniary interest created by the plaintiff through the expenditure of labor, skill and money. See Conan Properties, Inc. v. Conans Pizza, Inc., 752 F.2d 145, 156 (5th Cir.1985).

In contrast to federal copyright law, which focuses on the value of creativity, state misappropriation law is specifically designed to protect the labor, the so-called "sweat equity", that goes into creating a work. This purpose is evident in the elements of proof required to succeed under a Texas misappropriation claim. These elements, as articulated by the Texas Court of Appeals in United States Sporting Products, Inc. v. Johnny Stewart Game Calls, Inc., include: (i) the creation by plaintiff of a product through extensive time, labor, skill and money; (ii) the use of that product by defendant in competition with plaintiff, thereby giving the defendant a special competitive advantage because he was burdened with little or none of the expense incurred by plaintiff in the creation of the product; and (iii) commercial damage to plaintiff. D Scott Hemingway is faced with an unusual problem here. In order to get a favorable judgment on the copyright issues, D Scott Hemingway must convince the court that the many items mentioned are copyrightable. Then, in order to get a favorable judgment from the court on Misappropriation and Unfair Competition, under Texas law, he must convince the court the many items mentioned are not copyrightable. It that a dilemma or what? You see, there is something called "Preemption by Federal Copyright Law". Federal copyright law preempts state law causes of action that create equivalent rights. see 17 U.S.C. § 301. It seems that this Texas law is preempted. Cf. Alcatel USA, Inc. v. DGI Techs., Inc., 166 F.3d at 785-89 (action for misappropriation under Texas common law of unfair competition preempted because misappropriation does not require any element beyond those required for copyright infringement). But, as we have stated, the "interchangeable bottle cap necklaces" and the magnetic "keeper boards" are not copyrightable, although D Scott Hemingway does assert otherwise. And, "the unique design of selling jewelry painted on the interior (inside) of the bottle cap" is not copyrightable. So, one would assume that at least these three items would fall under the Texas common law of unfair competition. Right? Wrong, browser breath. You see, the Plaintiff must have a legal interest in the the product. This legal interest must be more than (for example) being the first to just open a store selling chocolate-covered widgets and thereby creating an intense demand for chocolate-covered widgets. The Plaintiff must have a patent on those widgets. But, you say, that is not what the above quote says, "(i) the creation by plaintiff of a product through extensive time, labor, skill and money."? As stated by Supreme Court in Sears, Roebuck & Co. v. Stiffel Co., 376 U.S. 225, 84 S.Ct. 784, 11 L.Ed.2d 661 (1964),

[W]hen an article is unprotected by a patent or a copyright, state law may not forbid others to copy that article. To forbid copying would interfere with the federal policy, found in article I, § 8, cl. 8, of the Constitution and in the implementing federal statutes, of allowing free access to copy whatever the federal patent and copyright laws leave in the public domain. 376 U.S. at 237, 84 S.Ct. at 782.

The court reasoned that one of the essential goals of the patent laws was to ensure that all inventions and discoveries were freely available to the public except those that were found to merit the temporary (17 years at that time) reward of protection from competition by meeting the stringent requirements of patentability. Devices that did not meet those standards, the court reasoned, were intended by Congress to be freely available to the public, and state laws that effectively removed such devices from the public domain conflicted with the Congressional purpose and, consequently, were preempted. Sorry, Maddie. No patent: no protection under Texas common law.

Trademark Infringement 15 U.S.C. §1114 Cheer Chics Charms is not accused of trademark infringement but Purple Mountain Sweaters and Cheer Chics Charms are. The federal registration for SNAP CAPS® was issued May 26, 2009. On October 6, 2009, D Scott Hemingway notified Purple Mountain Sweaters the the use of "Snappy Bottle Cap Necklaces" was an infringement of SNAP CAPS®. This is a common tactic of low life corporate lawyers whereby they make the absurd claim of "confusingly similar" to bully the other party into compliance. This is trademark abuse. Purple Mountain Sweaters was using the term "Snappy Bottle Cap Necklaces" in a descriptive manner, not as a trademark or other designation. This is supported by the fact that on the same page where "Snappy Bottle Cap Necklaces" was used, and above it, was a bottle cap logo for "Purple Mountain Ice Caps" inside a bottle cap. In any event, Purple Mountain immediately stopped using the term, "Snappy Bottle Cap Necklaces". In any federal court, the immediate cessation of use would be an indicator that the defendant was not a willing infringer. No willfulness: no enhanced damages or legal fees. So why bother? Because couples with the claims of copyright infringement and misappropriation it makes the law suit look worse. Another school yard bully tactic. Blue Brownies was using the term "Click It Caps". Only a moronic corporate lawyer would claim that their client owns all possible combinations of the word "Caps" simply because the client owns "Snap Caps". But that appears to be what D Scott Hemingway is trying to do. Reasonably, and legally, the claims of trademark infringement fail. D Scott Hemingway is an ass.

The law suits are bogus. The claims are frivolous. D Scott Hemingway and m3girl designs should have to pay court costs, damages and attorney fees. D Scott Hemingway should be disbarred.