Trademark Issue - DMCA Notice

[theone12]

My friend is currently selling jewelry online through third party vendors (i.e Amazon - Ebay etc)

She recently received a DMCA notice from a company claiming trademark of the term "Ear Pin"

She sells ear pins and uses this term in her product description and descriptive titles.

"Orogem® Corporation is the trademark owner of EAR PIN (U.S. Reg. No. 1791517)" is an excerpt that was included in the message - I looked up the Trademark and the term registered is "The Ear Pin" not "Ear Pin". I'm assuming "Ear Pin" would be too general of a term to be trademarked?

Any advice would be greatly appreciated - btw, my friend is not located in the US.

 

[quincy]

My friend is currently selling jewelry online through third party vendors (i.e Amazon - Ebay etc)

She recently received a DMCA notice from a company claiming trademark of the term "Ear Pin"

She sells ear pins and uses this term in her product description and descriptive titles.

"Orogem� Corporation is the trademark owner of EAR PIN (U.S. Reg. No. 1791517)" is an excerpt that was included in the message - I looked up the Trademark and the term registered is "The Ear Pin" not "Ear Pin". I'm assuming "Ear Pin" would be too general of a term to be trademarked?

Any advice would be greatly appreciated - btw, my friend is not located in the US.

First, the DMCA is part of the US Copyright Act.

A trademark holder will notify a site (like Amazon, eBay) if what is being sold on the site violates the trademark holder's trademark rights (or if the trademark holder believes what is being sold violates his rights). The sites once notified will, as a rule, remove the alleged-to-be-infringing item.

If your friend is using "Ear Pin" to describe her works in a way that confuses consumers into believing she is The Ear Pin company or her products are affiliated with or endorsed by the Ear Pin corporation, she could potentially be sued for trademark infringement. It really depends on all of the facts, and these facts should be personally reviewed by an attorney in your friend's area of the world. It will be the laws in her country that will apply to her if she is sued for infringement.

As to whether "The Ear Pin" can be registered, it apparently has been but, just like Kentucky Fried Chicken or Arizona Iced Tea, the fact that there has been registration does not prohibit others from using common words like Kentucky, fried, chicken, Arizona, iced, or tea, and it does not prohibit others from using words like ear and pin. It is HOW these words are used and in what context that can make the use of the combination of the words infringing.