Am I breaking some trademark thing for giving away crochet items?

[Crocheting]

What is the name of your state? I live in New York

Sorry if this isn't the right place to post this or if it's a silly question. I've been going through some stuff and I have a lot of time on my hands. My friend is very into crochet and and sells her projects and patterns as a side business. She suggested I try crocheting and I've been using her patterns. I've really gotten into it. I don't really need all the things I've made though so I've been giving them away to friends. Some of these friends are mutual friends of the one that makes the patterns. She found because they cancelled their commissions with her since I already made them the things they wanted. My friend is really upset now and she says I violated her trademark on her patterns and I need to pay her for the profit she lost. Some of the items I've made, such as blankets, she will sell for several hundred dollars. She says if I don't she's going to take legal action against me. I never take money for the items I've crocheted, but I do have people buy the yarn they want.

 

[adjusterjack]

It's not a trademark issue, it's a copyright issue. If she created the pattern then she owns the exclusive right to use them.

What she sells the items for is not the same as her profit.

It might not matter that you made no money. What matters is that she lost money due to your actions. She might be entitled to recover that loss from you.

That being said, when "She suggested I try crocheting and I've been using her patterns" did she give you consent to use her patterns? If so, were there any limitations on that use? And, most important, do you have anything in writing as evidence to the agreement.

Threatening legal action is often a bluff to scare people into paying. Actually suing may be problematic.

Stop using her patterns, create your own. Don't give away any more items made with her patterns.

If you want to give her some money for her lost profit, ask her to prove the amount of the loss by providing you with a copy of her Schedule C from her last IRS income tax return. That will tell you what percentage of her sales are profit.

If she can't produce the Schedule C, it's likely that she didn't report the income, which may be revealed in any legal action she takes. Might get her to back off.

 

[Crocheting]

After we first talked about it and she showed me how to crochet she offered to send me some patterns and later emailed them to me. I don't think there were any limitations. Her first email just said "Here are the patterns". After that they just said "more patterns".

I definitely stop using her patterns and ask about a Schedule C. Thank you.

 

[adjusterjack]

she offered to send me some patterns and later emailed them to me. I don't think there were any limitations. Her first email just said "Here are the patterns".

Hope you still have the email. There's your consent to use the patterns without any specified limitation.

 

[LdiJ]

After we first talked about it and she showed me how to crochet she offered to send me some patterns and later emailed them to me. I don't think there were any limitations. Her first email just said "Here are the patterns". After that they just said "more patterns".

I definitely stop using her patterns and ask about a Schedule C. Thank you.

You can still use patterns. Just buy them from your local craft/fabric store. As far as asking her for a copy of her Schedule C is concerned I disagree a bit with that advice at this point. I think it is a little premature. I would simply ignore her for now and use asking for the Schedule C as a fallback position if she persists.

 

[Crocheting]

Hope you still have the email. There's your consent to use the patterns without any specified limitation.

I do have all the emails still.

 

[Crocheting]

You can still use patterns. Just buy them from your local craft/fabric store. As far as asking her for a copy of her Schedule C is concerned I disagree a bit with that advice at this point. I think it is a little premature. I would simply ignore her for now and use asking for the Schedule C as a fallback position if she persists.

Okay, I'll wait to see what happens. Thank you,

 

[Taxing Matters]

I agree with LdiJ that this is not the time to be asking for the Schedule C information. First, it contains a lot of personal information to which you are not currently entitled to get and that I'd advise any client in her position not to give you at this point. Second, you don't know for sure that she's operating as a sole proprietor/single member LLC, do you? Her business might be a partnership with someone else or a S corporation. If she sues you for copyright infringement, which is extremely unlikely because that must be done in federal court and would be very expensive to litigate, then asking for the proof of her profit via her tax returns would be appropriate. If she tries to sue you in state court, whether small claims court or otherwise, you may want to file a motion with the state court to dismiss for lack of jurisdiction or a motion in federal court to remove the case to federal court. I suggest you consult a litigation attorney prior to making that choice.

 

[quincy]

What is the name of your state? I live in New York

Sorry if this isn't the right place to post this or if it's a silly question. I've been going through some stuff and I have a lot of time on my hands. My friend is very into crochet and and sells her projects and patterns as a side business. She suggested I try crocheting and I've been using her patterns. I've really gotten into it. I don't really need all the things I've made though so I've been giving them away to friends. Some of these friends are mutual friends of the one that makes the patterns. She found because they cancelled their commissions with her since I already made them the things they wanted. My friend is really upset now and she says I violated her trademark on her patterns and I need to pay her for the profit she lost. Some of the items I've made, such as blankets, she will sell for several hundred dollars. She says if I don't she's going to take legal action against me. I never take money for the items I've crocheted, but I do have people buy the yarn they want.

First, I question whether your friend actually has any enforceable rights in her patterns that can prevent you from making, and giving away or selling, what you make.

Patterns can be protected (under trademark, patent and copyright laws) but what is copyright protectable would be the pattern’s written instructions and any images used to illustrate the pattern instructions, and any original and creative design. A copyright holder could prevent the reproducing and distributing and selling of the pattern and the copying of an original design but cannot (necessarily) control what a user of the pattern does with what is made from the pattern.

Here is a link to an explanation of copyright law’s “useful article” doctrine:
https://copyright.gov/register/va-useful.html

And here is a link to the protection of original designs: https://www.copyright.gov/title17/92chap13.html#1302

Assuming your friend has rights that I actually don’t think she has , and if she has not already, your friend would need to register her copyrights in the crochet patterns with the US Copyright Office before suing you for copyright infringement.

When copyrights are not registered prior to an infringement, a copyright holder would not be eligible for statutory damages ($750-$30000/infringed work) and could only sue for proven profits (if any) of the infringer or proved losses.

The patterns apparently were given to you by your friend for your own personal use and enjoyment so I am sure she is upset that you are interfering with her business and cutting into her profits. It sounds like a misunderstanding. An apology might be nice. I don’t think you owe her anything but that.

 

[not2cleverRed]

First, I question whether your friend actually has any enforceable rights in her patterns that can prevent you from making, and giving away or selling, what you make.

And part of this would be: how unique are these patterns? If it's one of the many variations of a granny square, not so much. If it's just rows and rows of a stitch pattern you can find in any crochet book, not so much. Actually, page through a crochet book at the library, and you might find something more interesting. Or go to ravelry.

 

[quincy]

And part of this would be: how unique are these patterns? If it's one of the many variations of a granny square, not so much. If it's just rows and rows of a stitch pattern you can find in any crochet book, not so much. Actually, page through a crochet book at the library, and you might find something more interesting. Or go to ravelry.

I agree. I think a unique crochet design would be a bit of a rarity. If a design incorporates a company’s trademark (e.g., a Coca-Cola logo or a McDonald’s “M”) then it could have some trademark licensing restrictions (which could limit commercial use) but geometric figures generally would not be eligible for copyright protection.

The whole purpose of selling patterns is for use by the consumer.

 

[xylene]

She gave you patterns she also sells.

What are the terms applied when she sells them?

 

[quincy]

She gave you patterns she also sells.

What are the terms applied when she sells them?

Unless there is a trademark or patent involved, a pattern-maker cannot restrict what a pattern-buyer/user does with the product created from the pattern. This, regardless of terms that might say “no commercial uses permitted.”

The pattern-maker also cannot prevent the resale of the pattern, even if the pattern says “one use only.” The pattern-maker is only offered protection from those who copy the actual written pattern or instructions. Reproduction of the pattern itself is an exclusive right held by the copyright holder.

This old but still good US Supreme Court case explains why:

Baker v. Seldon, 101 US 99 (1879):
https://supreme.justia.com/cases/federal/us/101/99/

 

[FarmerJ]

Print those emails out on real paper and store them in a safe place should she ever make a issue of this legally and as far as what you already made that was a so called her pattern if you gave them away how would she prove that it was her design? If your really going to give them away anyway then I suggest donation to a church run or local thrift store anonymously so the materials used dont go to waste. Or just give them to her and tell her that this is a closed subject.

 

[quincy]

Print those emails out on real paper and store them in a safe place should she ever make a issue of this legally and as far as what you already made that was a so called her pattern if you gave them away how would she prove that it was her design? If your really going to give them away anyway then I suggest donation to a church run or local thrift store anonymously so the materials used dont go to waste. Or just give them to her and tell her that this is a closed subject.

The items were gifted by Crocheting to mutual friends, which is how the pattern-maker learned of Crocheting’s alleged infringement.

With copyright infringement, the infringer does not have to profit from the unauthorized use. The infringement comes with the unauthorized use.