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Tabberone is pronounced tab ber won
not tay ber own

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"The only thing necessary for the triumph of evil is for good men to do nothing"
Edmund Burke


Selvage

Selvage is the edge of unfinished fabric. Generally speaking it is trimmed off before the fabric is sewn. Fabric manufacturers use the selvage to print their names and product description as well as including their copyright statements. Sometimes the copyright holder is someone other than the fabric manufacturer and this is also noted.

A copyright statement as defined in the US Copyright Act is using the symbol © along with the word "copyright" (or abbreviated "Copr."), the first year of publication of the work, and the name of the copyright owner. Nothing else. Any other statement by the copyright owner is irrelevant, extraneous, unenforceable and improper.

For example, makers of hair care products frequently place prominent labels on their products stating "Professional Use Only - Not To Be Sold at Retail," or words to that effect. None of the numerous courts that have considered such labels has found them to prevent transfer of title. Nor do label notices create an "implied equitable servitude upon the chattel," such restraints on alienation being disfavored at common law. Clairol, Inc. v. Cody's Cosmetics, Inc., 353 Mass. 385, 393 (1967) (finding labels stating "For Professional Use" to have no legal significance). See, e.g., Tripoli Co. v. Wella Corp., 425 F.2d 932, 941 (3d Cir. 1970) (enforcement of legend on products "marked 'for professional use only' not to be sold retail" would be "a serious restriction on freedom of trade and competition"); Matrix Essentials v. Quality King Distribs., 522 F. Supp. 2d 470, 478-79 (E.D.N.Y. 2007) (finding that the trademark first sale doctrine barred enforcement of "professional use only" restriction); Matrix Essentials v. Cosmetic Gallery, 870 F. Supp. 1237, 1241 (D.N.J. 1994) (refusing to enforce a legend stating "For professional use. Not for retail sale."); Polymer Tech. Corp. v. Mimran, 841 F. Supp. 523, 529-30 (S.D.N.Y. 1994) (no valid claim for unauthorized distribution despite plaintiff's "expression of intent so to restrict sales by labeling its products 'For Professional Use Only.'").

Unfortunately, a number of fabric manufacturers have taken to including additional statements on the selvage that are not legally binding upon the purchaser although they, the manufacturers and the owners of the copyrights, insist these pronouncements are legally binding. However, the courts do not agree. The wording on the selvage is not a license nor is it a contract. For it to be either the fabric would have to be sold under contract, or mutual agreement between the buyer and the manufacturer. This isn't practical since most fabric is sold through a retail establishment that purchased it from the manufacturer so the buyer is not contracting with the manufacturer. As such, while the fabric may have restrictive wording on the selvage, it is not offered for sale on a contractual basis, meaning it is sold to you whether or not you agree with the statement. It is not binding upon the purchaser.

On Disney fabric, Springs includes the statement: Sold for non-commercial home use only".

For My Little Pony fabric, Springs includes the statement: This product intended for non-commercial home use only.

Shamash & Sons, who manufacture Betty Boop fabric, have on their selvage: This pattern is for individual use only.

David Textiles, manufacturers of Hello Kitty fabrics, have on their selvage: Intended solely for non-commercial use.

The National Football League and Major League Baseball have more specific statements on their selvage: This is for individual consumption only. Any unauthorized use of this fabric is prohibited and illegal.

Fabrique Innovations, who sells under the name of Sykel Enterprises, goes even farther: For personal use only. Not for resale. Warning: All violators will be prosecuted to the fullest extent of the law.

So, what do all of these selvage warnings have in common? They are not legally binding upon the purchaser of the fabric!

At present, there is but one federal case concerning the use of licensed fabrics, Precious Moments vs La Infantil 1997, (D.P.R.) 971 F.Supp. 66. Precious Moments lost the case over the use of their licensed fabric being turned into bedding and then resold.

However, it isn't the ONLY licensed fabric case to be filed in federal court. In July 2002, M&M/Mars sued Tabberone for making itmes from their fabric and then selling the items. That case was settled in November of 2002 in favor of Tabberone.

In 2003, Dudnikov vs Disney was settled some sixty days after being filed becuase Disney "did not want to be the test case on this issue". Disney easily could have spent the paltry few dollars to establish their "rights" to control the use of the fabric but declined. In 2002, Disney Enterprises earned 34 billion dollars so a few thousand on a court case was chump change.

Also in 2003, Dudnikov sued Major League Baseball Properties, United Media (Peanuts fabric), Sanrio (Hello Kitty fabric), and Debbie Mumm. All preferred settlement in lieu of going to Court to establish their right to control the use of licensed fabrics after they have been sold. Why do you suppose that is? Especially considering that the plaintiffs, Karen Dudnikov and her husband, an accountant/seamstress and a computer programmer, were representing themselves in court.

When confronted with the challange to produce in federal court a federal or state law that upheld their contention that the wording on the selvage was legally binding, Major League Baseball Properties was unable to cite anything remotely close to support their claims. That was because there are none.

In Quality King Distributors, Inc. v. L'Anzaresearch Int'l, Inc (98 F.3d 1109, reversed), Justice Stevens noted for a unanimous court:

        "The whole point of the first sale doctrine is that once the copyright owner places a copyrighted item in the stream of commerce by selling it, he has exhausted his exclusive statutory right to control its distribution."

Sykel Enterprises routinely emails people telling them that their attempts to either re-sell the fabric or to make something out of it and sell it violates Sykel's licensing agreement. What? Sy Garfinkel, president of Sykel, has been repeatedly told that a his licensing agreement is not binding on a third party. Despite repeated threats, Sykel has yet to take anyone to court over the use of their fabrics. Nothing but a bag of hot New York City air.

What is the bottom line? As long as someone does not misrepresent a home-made item as being a licensed product, copyright law and trademark law allow them to use the licensed fabric for commercial purposes.

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