Trademark Law - Disclaimers - Tabberone Disclaimer

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Tabberone Disclaimer

We recommend a seller pay particular attention to the wording of their auction and use a disclaimer when appropriate.
As William Peceau told us, "There is a difference between light red and red light."
When selling an item crafted from licensed material, auction titles are important. For example, let's say you are selling a baby bib made from licensed Disney fabric. Your action title should read something like this:
Baby Bib Made From Winnie The Pooh Fabric
Not something like this:
Winnie The Pooh Baby Bib Home Made

The first auction title is more precise and cannot be considered deceiving.

Disclaimer Do's and Do Not's

Do put a disclaimer close to the top of the listing.
Do Not put the disclaimer at the bottom unless it is there a second time.
Do Not put your disclaimer in smaller font or cutsie font.
Do Not get overly wordy and long-winded in your disclaimer. Just the facts.
Do Not make your disclaimer hard to read with fancy colors and backgrounds.

A disclaimer at the bottom of the listing could be ignored and then it would be ineffective. You want the wording of the disclaimer in the same size font as the description. We recommend something like what we call the Tabberone Disclaimer:

This is not a licensed Disney product.
It is however, hand-crafted from licensed Disney fabric.
I am not affiliated with or sponsored by Disney Enterprises.

Cut and Paste this code into your listing
 <table align=center border=3 bordercolor=red bgcolor=00ffff width=60%><tr><td align=center> <font size=3> <b>This is not a licensed Disney product. <br> It is however, hand-crafted from licensed Disney fabric. <br> I am not affiliated with or sponsored by Disney Enterprises.</b> </td></tr> </table> 

You can change the font size by changing the number after the code font size=. The disclaimer font should be at least as large as your listing font. DO NOT make the disclaimer smaller than your listing font.
If you add wording, be careful, but you can make the disclaimer box wider by increasing the table width= value. It is expressed in a percentage figure. Enlarge the width of the box by making the percentage number larger.
The br code is a line break. Change table bgcolor= to change the background color. But keep the color light so the wording can be easily read. A hard-to-read disclaimer is as bad as no disclaimer.
DO NOT use cutesy coloring that YOU LIKE but that is hard for others to read. You are selling an item, not a painting or work of art.

From Graham Webb Intl v Emporium Drug Mart, 916 F.Supp. 909 (E.D. Ark1995):
The Court likewise rejects Graham Webb's argument that the warnings Drug Emporium has posted disclaiming any affiliation with or authorization by Graham Webb are ineffective and not a question properly resolved by summary judgment. While it is true that the effectiveness of a disclaimer in a Lanham Act case may generally be a question of fact, see Home Box Office, Inc. v. Showtime/Movie Channel, Inc., 832 F.2d 1311, 1315 (2nd Cir.1987), a disclaimer expressly declaring that the seller is "not affiliated" with the owner of the trademark or is "not an authorized distributor" of the trademark owner's products has been held to be an effective means of preventing confusion in the minds of consumers as to affiliation with the owner of the trademark. Matrix Essentials, 756 F.Supp. at 282. As in Matrix Essentials, the only reasonable conclusion in this case is that Drug Emporium's warnings to consumers disclaiming any affiliation with or authorization by Graham Webb effectively prevents likelihood of confusion in the minds of consumers as to sponsorship or affiliation.
[emphasis added]

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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