Unintentional Infringement

[Shannon777]

What is the name of your state (only U.S. law)? Delaware
I manage a small, family run restaurant. The owner is originally from Istanbul, Turkey. He decided to expand his business last year, to include a family friendly frozen yogurt shop. his young daughters were the inspiration behind the construction, since many hours of their days were spent at the restaurant. He wanted somewhere fun that they could spend their time, since so much of it included having to be at the family business. He registered the new name of the addition , making sure it wasn't taken. He then had a friend come up with a cute little green bear mascot. His daughters said it reminded them of the (famous) bear, a favorite of theirs from their hometown of Istanbul, so he added a few pictures of that bear to the shop as well. The girls really liked the bear, so he added more of the bear to different things in the shop. He put stickers on the floor and machines featuring the (famous) bear, but used his own bear logo for the placemats, outside advertisement, t-shirts, pens and yogurt cups. Since he wasn't selling (famous) merchandise, or representing his shop as a (famous) place...he didn't realize he was infringing on a copyright, until he received a letter from their lawyers. He just looked at it as decorating his shop, not representing his shop. The company is asking for $2 million in damages, although he hasn't really made any money from the yogurt shop, it did not take off like he thought, he's actually lost revenue on it instead of making a profit. the company said they want to make an example out of him. What recourse, if any does he have in this matter. I'm not legal savvy, I told him he should definitely contact a lawyer asap...and offer his explanation as well as a "late copyright fee" to try to rectify the situation. He has already removed all likenesses of the (famous) bear image, and he even took down his own bear, because they feel it's too similar. Does anyone have any advice? I'm afraid for my job, and the other employees as well, if they succeed in their $2 million in damages, the business will probably falter, and we will be in the unemployment line.

 

[Proserpina]

What is the name of your state (only U.S. law)? Delaware
I manage a small, family run restaurant. The owner is originally from Istanbul, Turkey. He decided to expand his business last year, to include a family friendly frozen yogurt shop. his young daughters were the inspiration behind the construction, since many hours of their days were spent at the restaurant. He wanted somewhere fun that they could spend their time, since so much of it included having to be at the family business. He registered the new name of the addition , making sure it wasn't taken. He then had a friend come up with a cute little green bear mascot. His daughters said it reminded them of the (famous) bear, a favorite of theirs from their hometown of Istanbul, so he added a few pictures of that bear to the shop as well. The girls really liked the bear, so he added more of the bear to different things in the shop. He put stickers on the floor and machines featuring the (famous) bear, but used his own bear logo for the placemats, outside advertisement, t-shirts, pens and yogurt cups. Since he wasn't selling (famous) merchandise, or representing his shop as a (famous) place...he didn't realize he was infringing on a copyright, until he received a letter from their lawyers. He just looked at it as decorating his shop, not representing his shop. The company is asking for $2 million in damages, although he hasn't really made any money from the yogurt shop, it did not take off like he thought, he's actually lost revenue on it instead of making a profit. the company said they want to make an example out of him. What recourse, if any does he have in this matter. I'm not legal savvy, I told him he should definitely contact a lawyer asap...and offer his explanation as well as a "late copyright fee" to try to rectify the situation. He has already removed all likenesses of the (famous) bear image, and he even took down his own bear, because they feel it's too similar. Does anyone have any advice? I'm afraid for my job, and the other employees as well, if they succeed in their $2 million in damages, the business will probably falter, and we will be in the unemployment line.

He needs to see an attorney. It sounds like he's being threatened, but not sued, at this point. He should not make any attempt to rectify or settle until he's spoken to an attorney - the last thing he needs is to be ripped off on top of everything else.

 

[quincy]

What is the name of your state (only U.S. law)? Delaware
I manage a small, family run restaurant. The owner is originally from Istanbul, Turkey. He decided to expand his business last year, to include a family friendly frozen yogurt shop. his young daughters were the inspiration behind the construction, since many hours of their days were spent at the restaurant. He wanted somewhere fun that they could spend their time, since so much of it included having to be at the family business. He registered the new name of the addition , making sure it wasn't taken. He then had a friend come up with a cute little green bear mascot. His daughters said it reminded them of the (famous) bear, a favorite of theirs from their hometown of Istanbul, so he added a few pictures of that bear to the shop as well. The girls really liked the bear, so he added more of the bear to different things in the shop. He put stickers on the floor and machines featuring the (famous) bear, but used his own bear logo for the placemats, outside advertisement, t-shirts, pens and yogurt cups. Since he wasn't selling (famous) merchandise, or representing his shop as a (famous) place...he didn't realize he was infringing on a copyright, until he received a letter from their lawyers. He just looked at it as decorating his shop, not representing his shop. The company is asking for $2 million in damages, although he hasn't really made any money from the yogurt shop, it did not take off like he thought, he's actually lost revenue on it instead of making a profit. the company said they want to make an example out of him. What recourse, if any does he have in this matter. I'm not legal savvy, I told him he should definitely contact a lawyer asap...and offer his explanation as well as a "late copyright fee" to try to rectify the situation. He has already removed all likenesses of the (famous) bear image, and he even took down his own bear, because they feel it's too similar. Does anyone have any advice? I'm afraid for my job, and the other employees as well, if they succeed in their $2 million in damages, the business will probably falter, and we will be in the unemployment line.

Unintentional or "innocent" infringement is still infringement.

However, the fact that someone was not aware they were infringing on a copyright or a trademark can help to mitigate (lessen) any damages awarded against the infringer in an infringement lawsuit - even to the point where a court might issue an injunction to stop the infringement (and perhaps confiscate or destroy inventory) but might not award any monetary damages.

The company who owns the image of the bear, through copyrights or through trademark rights, may have difficulty with a $2 million suit against a small family business but, whenever you are threatened with a lawsuit or served with a summons and complaint, you should consult with an attorney for a personal review of the facts.

An IP attorney can let the business owner know, first, if the threat to sue is a legitimate one (i.e., the bear images are the same or similar and the one threatening suit actually owns rights to the image) and, second and if so, whether a settlement amount can be negotiated that is reasonable.

And there is always an outside chance, depending on all facts, that the owner of the family business might not have to pay anything at all.

Good luck.