Online Auction Title Question ~ IP Rights

What is the name of your state?Greetings from Sunny Utah!

I used an online auction site to sell a set of two scrapbooking idea books. The title: Creative Circles & Die Cuts Books Scrapbooking MEMORIES.

The titles of the books are: Creative Circles & Die Cuts, distributed by Making Memories.

Shortly after, I received a letter from another scrapbooking company, Creative Memories. Their legal counsel told me to add the word "Making" in front of Memories, in my title. I didn't have space for a ".", let alone a 6 letter word. I emailed other sellers that were using the two offending words in their titles. They were fortunate enough to not have been contacted.

Unfortunately the next day, the above named company "pulled" my auction.

Question: Does my listing the words "creative" & "memories" in the title, seperated by five words, infringe on their copyright, trademark, or other rights? I was told it could confuse their customers. Now I am confused!

If you are going to tell me I am wrong, be gentle!

If Creative Memories has a trademark on the name, then it is possible that infringement could be found in this case. Trademark infringement, in the majority of cases, is a "confusion" test -- would a reasonable consumer be "confused" as to the origin of the product.

Based on your example, saying that the title as you wrote it infringes their trademark is a little extreme -- having the five words separating would seem sufficient -- but I can see where they are coming from. If you are using eBay, for example, and you enter "Creative Memories" in the search box, your listing would come up. If you glance quickly enough at the title, you might not notice that the "Creative" and "Memories" are 5 words apart. Since the consumer, looking for something from "Creative Memories" ended up at your site, confusion has occurred, and therefore trademark infringement. I'm not saying this is a GOOD argument, just that it is likely where they are coming from...

Further, I guess if the consumer was searching for "Creative Memories" and was simply scanning auction titles in a list, if the word "Making" appeared prominently, there would be less a chance of confusion. That's probably why they suggested this.

Although the argument that your title somehow infringes on their trademark is probably pretty weak, the fact is you are going to lose with the auction site. The auction site is going to pull your auction if a bona fide trademark holder complains because if they don't, and you are later found to be infringing on a trademark, the auction site itself could be found liable for contributory and vicarious infringement, and, as you can probably guess,, the auction site doesn't want that. So, to protect themselves, they will pull an auction once they have been "noticed" that there is potential for infringement.

To make things easy on yourself, you could figure out some way to do as they suggest -- maybe drop "creative" altogether to fit under the character limit -- or you could try and obtain a noninfringement opinion from an attorney with experience in trademarks. Such an opinion letter could serve to shield the auction site from liability for contributory infringement, and therefore the auction site may allow you to use your title. However, such an opinion will not be cheap, and you should check with the auction site to see if they would accept it at all BEFORE spending the money.

Thank you, Diva.

Thank you, Diva. I was directed to your site, for good sound advive from the online auction "community". Thanks again. Advice taken!