I need some feedback here. The attached design was placed in pending status and I was sent the token email about "third party infringement."

I'm just curious if anyone here could be confused with my brand parody and mistake it for the original product thereby making me guilty of infringement? I am thinking that mistaking my design for the product I'm parodying is as ludicrous as the woman who wanted to sue because Cap'n Crunch with Crunchberries didn't contain any fruit.

The judge knew that she was a nutjob and through it out. I would think you would have to be AT LEAST AS BIG a nutjob to be confused by my parody. Your thoughts?


Brand Parody
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Warning... image does contain a profanity. Please do not visit if offended by four letter words that start with 'S.'

I think that CP just doesn't want to be involved in a lawsuit defending the parody. This doesn't mean that you can't do it yourself if you feel that strongly about it and are willing to go to court over it, but CafePress has chosen not to flirt with that possibility.

Even if you might win in court, would it be worth the time and money to fight over it?

Yes, I think it would be worth the time and money to fight over it. I can't speak for CafePress, but I think this is a case I couldn't lose. I'll probably get away from CafePress, ******, ***********, and POD in general and print my own.

quote:

Originally posted by JaceMan:
The judge knew that she was a nutjob and through it out.

But how much money did each side spend before that?

quote:

Originally posted by BGryphon:

quote:

Originally posted by JaceMan:
The judge knew that she was a nutjob and through it out.

But how much money did each side spend before that?

Again, CafePress is free to decide it's not worth possible litigation. That is completely within their rights. Just as it is completely within my rights to choose to print my designs myself.

Frivolous litigations don't frighten me, and my cost to defend this particular one would be zero. I wouldn't even need to hire an attorney to win this one. And the brand in question, wouldn't sue as they would know that. This wouldn't be my opponent having a weak case; it would be them having NO case.

I have several dozen designs, and I can afford to print them myself. I didn't want to be bothered with the burden of shipping, packaging, printing, etc. But I'm willing to take that on in exchange for the added freedom to work with my designs.

In short, CafePress has EVERY RIGHT to say, "No thanks." And I am aware of that. But I also maintain the right to respond with, "Alright then. I'll keep my designs to myself."

No big fuss here.

I wouldn't say the company being parodied has "no case." Their name is the first thing I think of when I see your design, and you copy their "trade dress" extensively.

Whether or not you'll be sued over it is another question entirely -- but don't be too quick to assume you have a slam-dunk case.

quote:

Originally posted by KLC Lewis:
I wouldn't say the company being parodied has "no case." Their name is the first thing I think of when I see your design,

As you should with a parody.

quote:

Originally posted by KLC Lewis:
and you copy their "trade dress" extensively.

No, I modify their "trade dress" extensively. In order for it to be a copy, they would have to demonstrate shared fonts (which there are none) and shared symbols (which there are also none)... In fact the only thing that is "copied" is color. And without that, I have no parody.

quote:

Originally posted by KLC Lewis:
Whether or not you'll be sued over it is another question entirely -- but don't be too quick to assume you have a slam-dunk case.

I assume it.

Good day.

So... you asked for feedback and end up wanting to argue the feedback?

I'm having trouble seeing how this post works?

These are valid points and it boils down to your opinion that something will or won't happen in a hypothetical situation. At this point it's entirely academic but the best feedback you could get from your premise is: it'll take a lawyer to get you to the point of finding out if you're right or not.

The opinions in this forum could also represent the same opinions to overcome in front of a judge, jury, or panel. So, if they differ from your assumption there's your first clue other humans may not immediately see things your way either.

Looks like the opinions you asked for suggest you're taking a risk and of course you're free to take that risk if you can put it fully on your own shoulders and not involve the printing/fulfillment company (who also makes a profit). Parody in commercial-use isn't quite the same as parody in journalism.

Not sure where you're headed with the opinion that replicating fonts and symbols is a major factor? Similarity and confusion can come into play as well.

...let's not even mention a company with a lawyer that just likes to yank people's financial chain over tiny details for month after expensive-month just to make your life miserable. That happens, too, unfortunately.

I'm not arguing anything, Mr. or Ms. Moderator. In fact, the responses I have received aren't anything to argue with. They have, for the most part, been people agreeing with me.

They have only been offering the word of caution that... "Is it worth the trouble/risk or possibility of being wrong?"

And that's a fine question to ask. But it's up to me to reach my answer. And I reached that answer before I began my design.

As I've already pointed out... CafePress is free to say, "No." And I'm free to say, "I'll do it myself." Which is what I have decided to do.

CafePress deciding it isn't worth the hassle doesn't mean they are correct. It is also an entirely different matter as they are in the business of printing 1000s of individuals work. It could be quite the obstacle for them to have to worry about an issue like this so often. Whereas I only have to "defend" my own. That makes for a vastly different fight. And I get and respect that.

So, what's wrong with me deciding I'll do it on my own?

quote:

I'm just curious if anyone here could be confused with my brand parody and mistake it for the original product thereby making me guilty of infringement?

Jaceman... you posed a question. Please do not get feisty when someone replies with an answer or opinion!

There is no protection in copyright law for "Parody" in a commercial situation. This slides in to the Fair Use claim. In any case, a copyright infringement lawsuit is usually settled by a jury of common folk and what they perceive. Keeping that in mind, the following is from the U.S.Copyright office:

Section 107 also sets out four factors to be considered in determining whether or not a particular use is fair:

1. The purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes
2. The nature of the copyrighted work
3. The amount and substantiality of the portion used in relation to the copyrighted work as a whole
4. The effect of the use upon the potential market for, or value of, the copyrighted work

1.) Your work is commercial
2.) The average "jury of your peers" may deem the work "vulgar" and perhaps offensive
3.) It is a can with label. The colors are the same as the company being 'parodied" as is the use of the fleur de lys ring around the bottom with the red stripe. I think you may agree that if anone does not immediately recognize the original brand, they have never gone shopping (in the U.S. at least)
4.)Given all the above, associating the brand with feces is potentially harmful to the brand itself.

Now, all that aside, next is to worry about the estate of Andy Warhol for the use of the can top from one of his paintings.

I'm not feisty. Gee whiz.

I asserted that CafePress can say, "No" and that I don't have to accept that as the final answer. That isn't feisty. It's a commitment to move forward.

The only element of my replies that can be seen as "combative" is the fact that I won't be relying on CafePress for fulfillment. But that can hardly be an issue as my response is simply a business one, just as theirs was.

Now, with that all of that being said... in response to Fair Use and other elements of your response. The Chewy Vuiton - Louis Vuitton case clearly shows that something that parodies another brand closely, for commercial purposes, can still be defended and sold. In that case, actual items were being produced to mimic another.

I think the only real cause for concern that my design triggers enters into the equation when you mention vulgarity. It could be presented to me that I could have a possible defamation lawsuit on my hands. A fact, I was aware of before I completed my design and before you brought it up. I believe that is defended by the fact that my parody goes out of its way to trigger thoughts of the brand being parodied (which is exactly what a parody does), while at the same time going out of its way to proclaim, "We aren't that product!"

In conclusion... your mention of Andy Warhol is spot on as his famous painting was the inspiration for my parody.

Andy Warhol was sued, his estate has been sued. Not even death protected him from the hazards of his choice of subject matter. He made lawyers very happy.

Three things.

First: Strictly speaking, it's trademark dilution. A little. Not really in a way rational people would be confused; but the colours, layout, fonts, et cetera are close enough that a case could be made. And, as mentioned, even if it's a really stupid case, going to court to get a ruling costs time and money.

Second: Trademark aside, it could really be called disparagement. There's all the reasons above, plus the aggression factor. Also kinda silly; but it's how the laws tend to be interpreted. For a sillier example, I think it was AlkaSeltzer who bought product placement in The Howling, then sued because, while the advert was playing on a television, a werewolf was dismantling a victim, blood spurting out all over the screen; that was ruled as disparaging too.

Third: While CP haven't got this one written down in their policy, they do in fact reserve the right to remove any design for any reason. Generally, they come up with a reason [less often, it even seems relevant]; but, as a corporation, they have the same right to refuse service for any [lack of] reason that a restaurant would have. A few years ago, there was a sudden blanket policy against anything regarding Hurricane Katrina which wasn't somehow positive, for example; nothing in the CUP really says you can't be negative about any given topic, but they pulled that rule out and rushed it into operation. Sometimes I wonder why they bother with reasons at all.

quote:

Originally posted by Tanith:
Andy Warhol was sued, his estate has been sued. Not even death protected him from the hazards of his choice of subject matter. He made lawyers very happy.

Andy Warhol was sued, but he was NOT sued by Campbell's. As long as we are stating facts, lets state facts.


@Gremlin
Thanks for your response.

With regards to points one and two, I disagree for the reasons I've already stated. With regards to the third one, I am aware that CP has the rights to say "Yea" or "Nay" to any design. I believe I have been clear on that. I hold them in no ill will for removing my design. That being said, I'm also not obligated to host any of my other designs with them either.

The CafePress model simply won't work for me. That doesn't mean that it's bad. It doesn't mean that those who use it are bad. And it doesn't mean that I'm bad since it won't work for me. It simply means, I will use another solution. It's really not that big of a deal.

I guess that response was more of a blanket response to all, than to you specifically, to the notion that I'm somehow complaining or saying CP made a mistake. I'm doing neither. Your third point regarding what is and isn't written in their policy just made me want to try to clarify this point... yet again.

Totally. Soviet though CP appear to be these days, nothing's compulsory. Other PoDs are less strict [a design which was doing well for me here before it got redbacked is now doing at least as well at a competitor]; and, if I really wanted to make a shirt I knew I couldn't legally get away with, I could screen print them in the den and sell them out of my car while, say, Campbell's tried to guess where the hell I was.

And I had something of a blanket statement too. I've been seeing people ask what was illegal about their designs for years [I've done it myself a couple times, however rhetorically], and no one ever mentions that it doesn't have to be a reason at all—least of all CP. So I thought I'd go ahead and mention that, for once.