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Topic: HELP! I got a Cease & Desist...what should I do now?!? (EDITED w/ "Resolution")  (Read 31893 times)
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gypsysoul3
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« on: January 25, 2007 04:05:59 PM »

I just wanted to get some info or advice for my current situation...searche d around but didn't find much...so here goes:

I was selling a bottle cap jewelry on my site and received a cease and desist (C & D) order from a company saying that I am violating trademark/copyright by using their bottle caps in my jewelry--part of the C & D demands that I stop selling the item (done, already off my site, no problem, as no one ever bought them, and I as only selling them for $7.00), give them any all of the merchandise I have made with these caps, info on who I sold the items too, AND $5,000!!!!

Here are my issues: the caps I used in my work were used, had I not made jewelry with them they would have gotten thrown away--in my view, since I'd purchased the drink the caps came with, the caps now belonged to me (something like "The First Sale Doctrine"); also, I never claimed the jewelry to be licensed goods, nor did I try to hide the fact that these were just some used caps and I never described them in a way that would "confuse" a buyer into thinking they were somehow "official." I also added beads and such to the caps/jewely to make them pretty and more than just bottle caps.

Something else that seems strange to me is that the Letter I got had a picture of a pair of the earrings that someone from the Company (who sent the letter) had purchased. And, this was the ONLY one of these items I've ever sold! To the person sending the C & D!

What can/should I do? My company (like alot of indie-craft companies) is TINY--just me and my husband in our small one bedroom apartment. I don't even do craft shows, it's all online. I don't make enough money with my craft shop to afford paying the $5,000 they want from me. Nor can we afford a lawyer (I really wish I knew a lawyer!!  Smiley).

I feel horrible about this, I just want to cry or throw up!

So, I would love any advice or help ASAP....and, I also hope this helps anyone else who may be making and selling things like this not realizing this could happen....

Thanks!

Any suggestions?!?!


EDITED (Feb. 4, 2007) Here are some Updates:

Upon Leah's wonderful suggestion, I thought I would put all the important info into this first post so people don't have to read all the pages in this thread.

First, This situation is legit, and, after writing a (very stern) email to the third party company who sent me the cease and desist, they lowered the "damages" amount to $3000.

I also (finally) got a lawyer, I found her through a local Artists Lawyer group (http://www.thewala.org/) and she is willing to do pro-bono work for me to basically send this company a letter stating that this is not right, that it is extortion, etc. She believes this will get them to back off, but can't really guarentee that they still won't take it further...

Finally, the company has set a February 9th deadline for this matter to be resolved, so I am hoping that this will be over by then.


And, since we've had so many great people post a bunch of great, really helpful links, I thought I would post them all here, this way, we won't get tons of people re-posting links that have already been posted, and if someone needs this kind of info in the future, it will all be in one place. Here goes, in no order:

Bottle Cap Art/Artists:
http://www.lorettafontaine.com/Laura%20Beamer%20Article.html
http://www.headquest.com/archive/2005/july2005/popculture.html
http://www.recyclingtoday.com/news/news.asp?ID=7660
Recycling artists: http://www.detritus.net/


Cease and Desist/Copyright/Trademark:
http://en.wikipedia.org/wiki/Cease_and_desist
http://www.chillingeffects.org/
http://www.tabberone.com/Trademarks/trademarks.html or just www.tabberone.com
http://www.sugarbuzzmagazine.com/Uncensored/bandbeer.html
http://www.negativland.com/intprop.html
http://www.negativland.com/lawyers.html
http://en.wikipedia.org/wiki/De_minimis
http://www.brandnamebullies.com/
http://www.sourpeas.org/page7/page7.html
http://www.sourpeas.org/page10/page10.html
US patent and trademark office: http://www.uspto.gov/
resist (sending) cease and desist: http://www.abanet.org/buslaw/blt/2006-05-06/wilcox.shtml
http://whipup.net/
http://www.chillingeffects.org/protest/notice.cgi?NoticeID=399
http://smallbusiness.findlaw.com/trademark/
http://girlfromauntie.com/copyright/index.php/category/the-knitters-guide-to-copyright/copyright-basics/
Very interesting article:
http://inpress.lib.uiowa.edu/poroi/papers/mcleod031101.html

Volunteer lawyers for the arts: http://www.vlany.org/resources/index.php

Scams:
http://www.scambusters.org/
http://www.bbb.org/
http://www.referenceusa.com/

Please let me know if I've missed any, and I'll add them.

More edits to come as this unfolds!
Thanks again for all the great advice and support that I have gotten here!



EDITED (February 11, 2007) The Resolution:
HOORAY!
So, after my lawyer sent the third party company a "very stern" letter, which was also faxed to the Major Corporation (whom my lawyer believes had no idea this firm was doing this on their behalf), someone from the company called my lawyer and said that "as long as I don't do it again, the matter is dropped" to which the lawyer replied, "she told you that from day one!"
 hmmm....it's still all very strange, but I did learn alot and I hope that this also helps other people. I will also be asking my lawyer about posting the C&D at www.chillingeffects .org (with personal info/names/etc left out) as there is one on there already that was sent from the same company, which helped my lawyer alot. So, maybe if they send another demand letter to another craftster, it can help them.


So, I will say it again, THANKS SO MUCH for all of your wonderful help, advice, opinions, etc. It means so much, and really did help me get through all of this!

And, if you're reading this for the first time, please do take time to skim all the pages of this thread, there is some great advice and opinions here.

EDITED 24 March 2007: ANOTHER LETTER: So much for "Resolution!" (you will also find this post on page 17 of this thread).

OK, so it's been about 2 months since this first C&D thing started and I just thought I'd share this, b/c i can't believe the people at this "third party company" sent me ANOTHER LETTER! This one is about another pair of earrings they bought (when the bought the first pair that started this whole thing, and I'm not sure that I mentioned, but it's a different brand). Basically they were like, "we see that you took down the 'Brand Blah-blah' earrings and stopped selling them, but we need in writing that you won't sell this brand anymore" WHAT!? so, of course my awesome awesome lawyer is on it, b/c legally, since i have representation, they can't contact me, and they did, but still, what the hell?!? now it's just harassment i think.

Just wanted to share, b/c i am just like, "huh?!?!"

p.s. since this seems to be coming back, and perhaps now i am under their "watch list" I'm glad i haven't mentioned any names!

p.p.s. even though i haven't mentioned names, i would like to warn any crafters out there using bottle caps (or bottles or cans), be they vintage or soda or beer, to be careful and prepared, i did a quick etsy, google, and ebay search & found quite a few people using the same brands that i did. it can be quite scary to get letters like this, and you should know your legal rights and be prepared to contact legal assistance. (please PM if you do get a letter maybe I can help).


EDITED 19 APRIL 2007:
see page 18 for more, as this post exceeded the allowed character limit
« Last Edit: April 19, 2007 03:37:49 PM by gypsysoul3 » THIS ROCKS   Logged

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« Reply #1 on: January 25, 2007 04:09:33 PM »

I wish so very much I had any idea how to help, but I dont.  Im sorry  Cry.

But I will tell you that Im very sorry and Ill say a prayer for you and I hope so much it works out!!!
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gypsysoul3
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« Reply #2 on: January 25, 2007 04:19:18 PM »

Thanks!

(p.s. love your screenname!  Wink).
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bemaha
« Reply #3 on: January 25, 2007 04:30:42 PM »

I'm at a loss as to what you should do, other than try very hard to get a lawyer. I will say, however, that it sounds as if the person behind this would very much like to make a few extra bucks. I swear, the world has gone downhill since that person spilled McDonald's coffee on his/herself and sued. Life is too short to get upset about junk like this. A reasonable person would have sent you a simple e-mail informing you that you were violating something...anyway. ..

One thought though, if this is going to become a legal issue you might not want to discuss it any further in a public place such as this. If you did have a lawyer, he or she might suggest you keep mum until the situation is resolved.

Best of luck to you. What a crummy deal. Try to take a few deep breaths and don't panic, something will work out.
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« Reply #4 on: January 25, 2007 04:32:41 PM »

wow! how in the world can they demand 5000 dollars from you, if the only pair you sold were to them, and, you hadn't stolen the caps or anything (who in the world would?) so why would that make it illegal? i would call/write/email the person who sent the letter, stating what you just posted, and explain why you "did the crime" (recycling).....even without a lawyer, there has to be somehow you can fight a crazy demand like that!

good luck, and sorry i cannot be of any help!
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« Reply #5 on: January 25, 2007 04:34:06 PM »

get a pro bono lawyer and get this mess fixed, how ridiculous is this!!! Crazy!
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« Reply #6 on: January 25, 2007 04:34:53 PM »

Oh, one more thing. Make sure you don't go forking over any money until you talk to someone. I'm sure you're able to tell if this is on the up and up but my first inclination was to think the letter was sent by a skeevy person who thought he or she might score some cash.

Bottle caps? Man. I've seen pieces of art hanging on gallery walls that incorporate logo-ed items, selling for tens of thousands of dollars. How is your business any different? Again, sorry this has happened to you.
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« Reply #7 on: January 25, 2007 04:39:58 PM »

I would check this out very carefully.  It sounds like a scam to me.  Seems a strange coincidence that they had a picture of the only one you sold.  Check the letter info. out carefully.  see if the address is legit, any phone numbers are connected to the company or to a real law office (look them up to varify they are real and not in someone's basement.)  An official request like this would come from a law office that is easily found when googled, etc.  If it looks real, get a consult from a lawyer.  It would be worth the money for a quick visit to be sure you aren't getting scammed, or they can't seek more.

Don't send ANY money until you have checked it out thoroughly.

I also agree that keep details to a minimum until you have done your homework.  

Good Luck!
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gypsysoul3
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« Reply #8 on: January 25, 2007 04:44:25 PM »

Bottle caps? Man. I've seen pieces of art hanging on gallery walls that incorporate logo-ed items, selling for tens of thousands of dollars. How is your business any different?

I was actually thinking the same thing....I see bottle cap jewelry and art all over the place!

I know I need to talk to someone, I'm just not sure who....I've seen that there are free/pro-bono lawyers for artists in my area, I guess I'll have to look into it. Otherwise I'll have to start collecting donations! Wink

Yeah, I thought I was being slightly vague, as to not reveal too much, in case this does get bigger. (which, hopefully it won't).

Thanks for your support, you guys!
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« Reply #9 on: January 25, 2007 04:52:59 PM »

It defiantly sounds like a scam to me. Do not send money! A legit place would have had a lawyer contact you and all this legal stuff. My advice would be to not send any money, do not send them any of your merchandise, but still do not post them for sale. I too have seen many bottle caps earrings for sale, so this could be some person's scam to make money off people who sell these. And again, if they did not send you the message for 5,000 is a more legal manner, don't pay any attention.

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