C&D Request

[ghazz]

What is the name of your state (only U.S. law)? Washington

I got a Cease and Desist notice in the mail. I have got these before and we usually just take down the item in question from our store. We are selling a product that they claim is improper use of likeness. They want me to remove the product and provide them with a full accounting of all merchandise sold. I have taken the merchandise down from our website. I want to know if I should respond and if I need to actually provide them with any information on what was sold. I think we sold about 9 of this item and it accounts for $200 or less in proceeds. How should I proceed?

 

[quincy]

What is the name of your state (only U.S. law)? Washington

I got a Cease and Desist notice in the mail. I have got these before and we usually just take down the item in question from our store. We are selling a product that they claim is improper use of likeness. They want me to remove the product and provide them with a full accounting of all merchandise sold. I have taken the merchandise down from our website. I want to know if I should respond and if I need to actually provide them with any information on what was sold. I think we sold about 9 of this item and it accounts for $200 or less in proceeds. How should I proceed?

I recommend you have the cease and desist notice you received reviewed by an attorney in your area. This is the best way to determine how you should respond to the notice and the request from the company for a full accounting of your sales. The attorney can also tell you if this is something you need to respond to at all.

I am not exactly sure what the "improper use of likeness" complaint is all about. It sounds as if the company is claiming a publicity rights problem with your product. Does the product that you are selling use without authorization a real person's image on it (like the image of a celebrity) or do you use a real person in your advertising?

You were probably smart to remove the products from your website until you know where you stand legally.

Good luck.

 

[ghazz]

I recommend you have the cease and desist notice you received reviewed by an attorney in your area. This is the best way to determine how you should respond to the notice and the request from the company for a full accounting of your sales. The attorney can also tell you if this is something you need to respond to at all.

I am not exactly sure what the "improper use of likeness" complaint is all about. It sounds as if the company is claiming a publicity rights problem with your product. Does the product that you are selling use without authorization a real person's image on it (like the image of a celebrity) or do you use a real person in your advertising?

You were probably smart to remove the products from your website until you know where you stand legally.

Good luck.

Hello,

They claim our product makes use of a likeness of their client without permission. It's basically their clients first name and an image. It isn't their picture, or their full name, but they claim we're using the persons "likeness" on the merchandise. It's really quite silly. I feel like taking the product down is enough, but wondered peoples opinions.

 

[quincy]

Hello,

They claim our product makes use of a likeness of their client without permission. It's basically their clients first name and an image. It isn't their picture, or their full name, but they claim we're using the persons "likeness" on the merchandise. It's really quite silly. I feel like taking the product down is enough, but wondered peoples opinions.

Where did you get the image?

 

[ghazz]

Where did you get the image?

I am not sure where the image is from, but it is not their property. It's a very general image/clip art. They are claiming that the name on the merchandise and the image together display a likeness to their client.

 

[quincy]

I am not sure where the image is from, but it is not their property. It's a very general image/clip art. They are claiming that the name on the merchandise and the image together display a likeness to their client.

I think you need to find out who holds the rights in the image, first of all. You need to be wary of pulling things off the internet for your own commercial use. Most images have copyright holders and most will require a license to use an image for commercial purposes.

Who, by the way, is the "they" who sent you the cease and desist notice and who is claiming infringement on rights?

Do you know what the client looks like and if the image does indeed resemble the client?

 

[ghazz]

I think you need to find out who holds the rights in the image, first of all. You need to be wary of pulling things off the internet for your own commercial use. Most images have copyright holders and most will require a license to use an image for commercial purposes.

Who, by the way, is the "they" who sent you the cease and desist notice and who is claiming infringement on rights?

Do you know what the client looks like and if the image does indeed resemble the client?

The image is not owned by them and it's just general clip art. That's not an issue here. I deal with C&D's once in awhile, but usually they are not requesting an accounting and reimbursement of sales of past merchandise. The clip art is not a person, it does not resemble anyone. It's more about the use of their first name and the clip art that they claim creates a likeness of this individual.

The notice was sent from the celebrity's attorney.

 

[quincy]

The image is not owned by them and it's just general clip art. That's not an issue here. I deal with C&D's once in awhile, but usually they are not requesting an accounting and reimbursement of sales of past merchandise. The clip art is not a person, it does not resemble anyone. It's more about the use of their first name and the clip art that they claim creates a likeness of this individual.

The notice was sent from the celebrity's attorney.

If it was a celebrity's attorney who sent you the cease and desist, you may have cause to worry. Celebrity names often are trademark-protected. Using "their" name (whether first name, last name, or both) in a way that implies the celebrity has an affiliation with your product is legally problematic.

Even without a registered trademark, celebrities have publicity rights in their likenesses (names, images, voices, all aspects of their persona) that cannot be infringed.

As to clip art, most clip art cannot be used for commercial purposes without authorization.

I recommend you have the notice you received, and the products that are creating a legal issue for you, personally reviewed by an attorney in your area. We cannot do personal reviews on this forum.

Good luck.