Cpoyright/Trademark Infringers Beware - Page 2

Well I dont know about anyone else, but I wish these companies would realize how much money they could make by making the figurines available to cake decorators in candle for or sugar molded. There are some but not a lot and they are not for commercial use. I would much rather make sugar flowers than figurines any day!
If the music industry had tapped into what the consumer wanted they would be much richer today (I know that they are already super rich) and would not have to spend money on prosecuting nabsters.

I apologise to scp1127.

This place is so exhausting and please Jason, I know how you love to write and write but honestly you don't need to reply to this. It was a simple apology to scp1127

That's actually a really interesting idea for a business. It would require buy-in from the IP owners, but if you were able to talk to the right people at, say, Disney and work out a business plan with projections for profits from consumable licensed figurines you might really be on to something. Of course this would also involve stepped-up enforcement of copyright infringement to increase the market for said figurines.

I don't think that the copyright issues associated with the music industry are the same as the ones for caking, because the incentives for music copyright owners to enforce their copyrights are far stronger than for a company, even Disney, to go after casual violators making Mickey Mouse cakes.

The music industry sells songs to the public. If a person downloads a song illegally, the record company, artists, etc do not get the money they would get from someone who buys that song. If enough people do this, the music industry is seriously harmed. The music industry is struggling with album sales. It pays for them to crack down on illegal down loaders. They don't have the resources to go after everyone so they go after the heavy downloaders and have also, at times, gone after casual downloaders, to make a public example of them. Many people, but not everyone, believe downloading is stealing, even people who do it anyway, so when the music industry goes after casual downloaders, they do not take a huge public relations hit.

As for character cakes, most companies need to protect the characters they own so they can make money off of selling movies,toys, etc of of these characters. Somebody making a Mickey Mouse cake doesn't directly hurt Disney's profits in the same way as someone illegally downloading music - where you get the final product without paying for it. That said, companies do need to show that they make efforts to protect their Intellectual property from violations, so companies will usually send cease and desist letters to violators that that become aware of. You don't usually see the aggressive tactics that the music industry takes for a variety of reasons, but one of them is that going after a mom and pop bakery in court without first giving them a warning to stop would be a PR nightmare for a company, which defeats the point of protecting the brand.

Did you read the article? SCOTUS did not uphold the award, they refused to hear the appeal, there is a difference. They can refuse to hear a case for any number of reasons, the refusal means the case returns to the district court. The case is not over. The appellate court decision leaves open the possibility for the award to be reduced again--if it is the plaintiff gets a new trial. This is in the article.

What the refusal means is still uncertain as the case is not settled. The district court could opt to reduce the fine again. The defendant has vowed to keep pursuing his case so it is far from over. Acting as if this is now settled case law is simply premature. And speculating as to the significance of the decision in terms of future suits is just that idle speculation. There is nothing to suggest that the case would be a landmark decision for the prosecution of infringements.





Relevance? First the response was to the claim that this decision would set off a bunch of copyright ambulance chasing. It is not with the claim that there are firms out there that already specialize in copyright infringement. Second you really think Disney is going to hire some unproven new firm? No. This environment is not the same a personal injury lawyers-there are no clients to troll for. They have legal representation already.

As for your example: it is not the example of attorneys pursing clients to get some monster award because of a poor economic climate. It is a company that searches the internet for instances of violation. It is a security/monitoring service and does not offer legal services. The existence of the one does not mean that a spate of attorneys are now going to rush to pursue copyright infringements when a) those companies already have representation and b) there are already established firms.

So yes the point was just silly and unnecessary. The decision is not a green light to attorneys, that green light already exists. One need not throw out "you could be subjected to a $150,000 fine" as the reasonably imposed fines would be devastating enough. You can side with this hyperbole if you want, but frankly all it does is trivialize the message. Is there are reason for concern? Yes. Is that a reason to live in fear of an army of attorneys seeking $150,000 fines? No.

Personally, I think that if Disney or any other big company were to go after someone for copyright infringements it would be the famous big bakers who post their cakes for all to see on tv and elsewhere. They would have a much better chance of getting $$ out of them than a small time baker. Does this mean that they won't go after small time bakers? Probably not. I am wondering if a big company goes after a small baker, if they chose to on their own or if someone reported them.

I worked for a national company and they went after anyone, for any reason, regardless of how small the perceived infringement. They once sent a notice to a licensed home baker with a business name that was similar to, but not the same as (and would not have been confused with my employer). They told her to change her business name or she would hear from them again. It seemed so petty, but this was their stance.

You're right that SCOTUS did refuse to see the case instead of upholding it (my bad), but when a case is not heard by SCOTUS the last decision stands (in this case it is the 1st Circuit Appeals decision reinstating the $675K judgment) and the case is closed, no further appeals are possible.

If SCOTUS heard the appeal and sent it back to a lower court that would be a different story and the case would still be open, but that didn't happen here.



Your claim was that it was silly for firms to hang out a shingle to pursue copyright infringement, I present an example of a firm that already does this along with a link to find lawyers across the country who offer this service.



Of course not, firms would need to be vetted just like any other RFP. It doesn't necessarily have to be a brand new firm either.



As I stated in my earlier post, in-house legal teams are usually focused on bigger matters than relatively small-time infringement. A third-party firm sending out infringement letters could be quite profitable for both the firm and the IP owner, even if the settlements are relatively small...now that SCOTUS has refused to hear this case, recipients of these letters would be even more willing to settle.

Sure they do. Disney licenses decopacs, so someone copying Mickey Mouse is illegally using someone else's work without having to paying for it (by buying the decopac or negotiating a license on your own). Even if there were no licensed products available and the company did not grant licenses, as the owner of the IP the company has the right to control how it is used.



Agreed, there is definitely a fine line between protecting IP and alienating customers.

Just curious, do you know if she changed her name? Do you know if they would have really gone after her if she didn't? I would think that if there would be no confusing the two companies that she would have been able to fight it. Now if it had the name Disney in it, that I can understand.

In this day and age there are so many names out there that are a little similar, I don't think that they would have a leg to stand on. Especially if they would not be confused, but I could be wrong. Jason or anyone else know?

There are several factors considered when looking at likelihood of confusion in trademark infringement (which is usually what business name conflicts involve):

Strength of the mark
Proximity of the goods
Similarity of the marks
Evidence of actual confusion
Marketing channels used
Type of goods and the degree of care likely to be exercised by the purchaser
Defendant's intent in selecting the mark
Likelihood of expansion of the product lines

So if this national company was a bakery in another state but sold wholesale throughout the US they might win the case. In most cases it would never get to trial though, it would be much cheaper for a home bakery to change its name than to spend time and money on a lawsuit.

http://en.wikipedia.org/wiki/Trademark_infringement

that was my cake, and yes, I did get permission. If you want to go to the Old Bay facebook page and look at the "comments posted by other people" area, you'll find my request, their approval, and their comments about how much they liked the cake.

...Becasue I do ask for permission, and I have a fat file of permission letters to show for it.

I love this topic...People like to say that it doesn't matter until someone takes a photo of another decorator's cakes and puts it on their website, then all of a sudden it's torches and pitchforks. Getting permission from a copyright holder is much easier than worrying about it.

Yeah, tell that to the cop that only tickets ME and lets 20 other speeders go by. Dumb bad luck, or the "example" case... we just need to be aware.... and the potential penalty for violating the law. Somehow saying. "Yeah, that's the law but I doubt they can catch me..." doesn't seem like a good business plan.

Thanks for the links scp1127!