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koolart copyright and ferrari copyright - who is right?

 
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citroen
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PostPosted: Sat Jun 05, 2010 6:31 pm    Post subject: koolart copyright and ferrari copyright - who is right? Reply with quote

hi

i am a licensee of koolart ( www koolart com ) which produces charicatures of cars. These can then be printed to tshirts etc.

Now koolart state the images are copyrighted by them, but i have just been suspended by ebay because Ferrari S.p.A. (Italy) ferrari_enforce@opsecsecurity com have complained.

The items in question were

KOOLART KOOL ART FERRARI 355 MOUSE MAT
KOOLART KOOL ART FERRARI 355 SPYDER MOUSE MAT
KOOLART KOOL ART FERRARI CALIFORNIA GREEN MOUSE MAT
KOOLART KOOL ART FERRARI CALIFORNIA GREEN MOUSE MAT
KOOLART KOOL ART FERRARI CALIFORNIA MOUSE MAT
KOOLART KOOL ART FERRARI CALIFORNIA MOUSE MAT
KOOLART KOOL ART FERRARI CALIFORNIA MOUSE MAT
KOOLART KOOL ART FERRARI CALIFORNIA PINK MOUSE MAT
KOOLART KOOL ART FERRARI CALIFORNIA PINK MOUSE MAT

I rang koolart straight away asking how they can hold copyright yet ferrari want them off ebay. Koolart said the images comply totally with copyright law as they dont claim the drawings to be official merchandise, they also said they have 1000's of licensee's around the world all selling koolart merchandise and no one has ever been sued as the images dont infringe on copyright. Koolart have also taken copyright legal advice are very confident that there will never be a problem.

Koolart said that there are companies that sweep ebay for fake products and my items have appeared in the search, they havent bothered to look at the actual listing and had it taken off.

Koolart advised to change my listing wording from KOOLART KOOL ART FERRARI 355 MOUSE MAT to KOOLART KOOL ART MOUSE MAT FERRARI 355 as the sweep will not pick it up.

The strange thing is that there were still over 100 of my listings left on ebay with ferrari koolart and went unnoticed by this sweep.

any ideas where i stand?

is it the word ferrari i cant use?

thanks
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AndyJ
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PostPosted: Sat Jun 05, 2010 10:01 pm    Post subject: Reply with quote

I suspect that this is not a copyright issue, but concerns the use of the trademark 'Ferrari'. In your ebay listings, do you just use the word in a normal typeface or in the distinctive Ferrari badge style? If it is the latter then the company certainly have some justification for objecting because some buyers might be led to believe that this was official Ferrari merchandise.
The plain word Ferrari as used here is not copyright nor is it a trademark - anyone can say or write the word without there being a problem over intellectual property. But using the logo and name in connection with cars and a host of other trademark categories including cosmetics, key rings, wristwatches, sportswear, golf bags and of course motor racing, then the problems start. (More details of the many registered Ferrari trademarks here:
http://www.ipo.gov.uk/tm/t-find/t-find-text/tmtsearch-search.aspx)
I think your analysis of what has happened on ebay is probably correct. Ferrari or some third party company on their behalf, have done a trawl for the word and have assumed that all the results are trademark infringements. I don't think that is the case with your particular merchandise. Your use of the word is generic in my opinion.
I assume that you have read ebay's policy on intellectual property protection (for other readers who may not have, check here: http://pages.ebay.co.uk/vero/infoforusers_faq.html. Faq 5 is the relevant bit here.
Try to contact Ferrari and get them to withdraw their objection, and if you do not get a satisfactory reply (or no reply at all) you can then go back to ebay for assistance. Understandably ebay have to support their VeRO clients - which include most of the big names - or face even more litigation than they currently experience, but it is a policy that allows you that argue your case, assuming you feel it is worth the hassle
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citroen
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PostPosted: Sun Jun 06, 2010 9:12 am    Post subject: Reply with quote

thanks andy...
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