infringing

[kennae]

I have a little on line facebook business. I offer what is known as grid boards. I woodburn in designs that are used in meditations, such as sacred geometry, flower of life, lotus flower, pentagrams, etc... People can choose from design examples i have on hand or they are welcome to send me any design they choose. Most are of familiar objects or symbols and easily found on line through search engines, Pinterest, or tatoo sites. Etc.. I do not claim or create any design. My services are custom hand made wood burned grid boards. Not creating designs. If i recieve a request to burn in a design or offer it as a design choice that is copyrighted am i infringing on the copyright of the piece? Even if it is a digital rendition of familiar symbols?
If so, and 80% of the copyrighted work ties up celtic common signs such as moons stars triquitras ect.. How does one go about getting a duel copyright.

 

[quincy]

I have a little on line facebook business. I offer what is known as grid boards. I woodburn in designs that are used in meditations, such as sacred geometry, flower of life, lotus flower, pentagrams, etc... People can choose from design examples i have on hand or they are welcome to send me any design they choose. Most are of familiar objects or symbols and easily found on line through search engines, Pinterest, or tatoo sites. Etc.. I do not claim or create any design. My services are custom hand made wood burned grid boards. Not creating designs. If i recieve a request to burn in a design or offer it as a design choice that is copyrighted am i infringing on the copyright of the piece? Even if it is a digital rendition of familiar symbols?
If so, and 80% of the copyrighted work ties up celtic common signs such as moons stars triquitras ect.. How does one go about getting a duel copyright.

Are you in the US, Kennae? If so, in what state do you reside? If not, in what country do you reside?

You should refuse to create for a customer any wood burning that uses a copyrighted design unless or until you acquire permission from the copyright holder to do so.

Just because an image can be found easily online does not mean it is copyright-free. Many tattoos, for example, are now copyright-protected.

I am not sure what you mean by a "dual copyright." You can get a license from the copyright holder to use their copyrighted work for your wood burnings.

Creating derivatives is an exclusive right held by copyright owners. A wood burning of a copyrighted design would be considered a derivative of the original. To create a derivative without permission is infringement.

You are smart to consider the legalities. A copyright infringement suit can be costly.

Good luck.

 

[PayrollHRGuy]

Also, copyright isn't your only concern. Trademark infringement is as well.

Let's say I ask for a copy of the Harley Davidson logo burned on wood from you. To do so would be a violation. If you happen to take a picture of the wood burning and add it to your Facebook site as some of the work you can do there is a VERY good chance the team of lawyers that Harley Davidson have that do nothing but look for such infringements.

 

[quincy]

Also, copyright isn't your only concern. Trademark infringement is as well.

Let's say I ask for a copy of the Harley Davidson logo burned on wood from you. To do so would be a violation. If you happen to take a picture of the wood burning and add it to your Facebook site as some of the work you can do there is a VERY good chance the team of lawyers that Harley Davidson have that do nothing but look for such infringements.

No. What you said is incorrect, HRGuy.

Trademark infringement centers on consumer confusion. Unless consumers believe Harley Davidson is involved in some way with the creation of the wood burnings or the name or logo of Harley Davidson is used as a promotional tool, there is really no infringement concern.

This is a copyright concern.

 

[FlyingRon]

Harley Davidson would certainly argue dilution of their very famous mark.

 

[quincy]

Harley Davidson would certainly argue dilution of their very famous mark.

Perhaps. Harley Davidson is certainly a famous mark.

But a fair use exists if the mark is not being used as a designation for the source of goods.

A link to the Latham Act's section 1125:

https://www.law.cornell.edu/uscode/text/15/1125

 

[FlyingRon]

I disagree. He's selling a product. This is NOT a noncommercial use nor does it fall under any of the fair use exemptions in the USC.

 

[quincy]

I disagree. He's selling a product. This is NOT a noncommercial use nor does it fall under any of the fair use exemptions in the USC.

I do not see any intent to harm the reputation of the trademark holder or any attempt to trade on the recognition of the mark (this if the design is supplied by a customer) - but of course it doesn't matter what I see. If Harley Davidson has a problem with the use then it becomes a problem.

So if you feel more comfortable expanding the warning to Kannae to avoid using both copyrighted material and trademarks, I have no objection to that.

 

[FlyingRon]

This isn't fair use. Fair use is limited to descriptive things comparing products or the critique/parodying. Tarnishment is only one mode of dilution. Blurring is another. There is very much an attempt to create an association here. He is selling the product BECAUSE it includes the mark. The blurring association doesn't involve the confusion aspect and arguing that nobody would expect that he is associated with the actual mark holder doesn't cut it.

Perhaps he has a slight out if he copies something a customer sends him, but if he puts up a product with the mark of DISNEY or HARRY POTTER or MAJOR COLLEGIATE OR PRO SPORT TEAM up for sale on his own, he can expected to get slapped so damn fast his head will spin.

 

[quincy]

This isn't fair use. Fair use is limited to descriptive things comparing products or the critique/parodying. Tarnishment is only one mode of dilution. Blurring is another. There is very much an attempt to create an association here. He is selling the product BECAUSE it includes the mark. The blurring association doesn't involve the confusion aspect and arguing that nobody would expect that he is associated with the actual mark holder doesn't cut it.

I agree to an extent with your post's second paragraph additions. Were kennae marketing items with other's trademarks or promoting the wood burnings by using other's trademarks, that is legally dangerous.

Following is a good case for you to review that found no infringement in A.V.E.L.A.'s use of the name and image of the Betty Boop trademark because it was not used as a trademark and consumers inferred no connection between AVELA's products and the trademark holder.

Fleischer Studios Inc v. A.V.E.L.A. Inc: http://digitalcommons.law.scu.edu/cgi/viewcontent.cgi?article=1184&context=historical

The Intellectual Property Owners Association (IPO) has reviewed court decisions on trademark issues arising under the federal dilution law, which is informative. See: http://www.ipo.org/wp-content/uploads/2013/03/federaldilutionlawreview.pdf


And for a good overview, here is a link to the National Trademark Association (INTA) on fair use: https://www.inta.org/TrademarkBasics/FactSheets/Pages/Fair-Use-of-TrademarksNL.aspx

 

[PayrollHRGuy]

And customer confusion would happen with just about any product that you could even consider putting their logo on. Because they certainly have put it on just about everything or have licenced others to do so.

 

[quincy]

And customer confusion would happen with just about any product that you could even consider putting their logo on. Because they certainly have put it on just about everything or have licenced others to do so.

There are several factors that are looked at when determining if there is a likelihood of confusion so just because a product uses a trademark design does not mean consumer confusion is generated.

One factor that a court considers is the strength of the senior user's mark - and Harley Davidson certainly has a strong recognizable mark.

Another factor is the similarity of the marks - and if the wood burning reproduces the logo or name well, that can lead to consumer confusion.

The similarity of the goods is another factor. A single wood burning done at a customer's request with a customer-provided design is unlikely to confuse consumers into thinking the single wood burning is a Harley Davidson product.

Is Harley Davidson likely to create its own wood burning products? Probably unlikely.

If a trademark is used in bad faith (with the intent to capitalize on the senior user's fame), that can lead to consumer confusion. If a single wood burning is created for a single customer at the customer's request, this does not support a bad faith use.

Another factor judged is the sophistication of consumers. Will a consumer distinguish a single wood burning that has a Harley Davidson design from Harley Davidson goods? Probably.

If consumers are SHOWN to be confused over the origin of the goods (believe all of the wood burnings are Harley Davidson products because one wood burning uses a mark), however, that can support an infringement action (or, more likely, an injunction).

The quality of the goods created also need to be considered (and this gets into the possible dilution of a mark that FlyingRon mentioned).

When speaking of consumer confusion, it will be the average reasonably bright consumer that is looked at. Although the mark might be recognized, it seems unlikely that consumers will think the wood burning is marketed by Harley Davidson, if the marks are not used to promote kannae's business.

Obviously avoiding all unauthorized uses of others rights-protected material is legally safest. I do not see, however, that the described use here is a trademark issue of much concern. It can be a copyright concern.