Tabberone is pronounced tab ber won
Hall Of Shame Member
Added May 23, 2003
Last Updated February 7, 2010
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.
In November, 2003, United Media took exception to Tabberone making items from Peanuts fabric and then selling the items on eBay.
On November 14, 2003, upon orders from United Media, eBay terminated six auctions by Tabberone.
No one to take this sort of thing lightly, Tabberone immediately emailed United Media demanding a reason as to why the auctions were removed. United Media replied with the usual line of tripe about derivatives, copyright and trademark infringement, etc. They refused to restore the auctions.
On November 18, 2003, Tabberone filed a counter notice with eBay concerning the auctions. As is her custom, she filed the counter notice while on the way to the Federal Courthouse in Denver, Colorado, to file a federal lawsuit against Untied Media, Civil Action No. 03-D-2298 (PAC).
On February 3, 2004, United Media agreed to a settlement in which United Media agreed to rescind the auction takedowns and not to interfere in future auctions by Tabberone involving the use of Peanuts fabric. 2½ months from lawsuit to settlement by yet another self-righteous legal department with no real concept of fair use and the first sale doctrine. Another billion-dollar company that didn't want to try and litigate the issues because they knew they would lose. Another VeRO bully who attacked non-infringing sellers thinking no one would ever stand up to them.
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.
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