Fabric Copyright

[Rowena10]

Hi,

Question, if you don’t mind, sorry if you do. If you use a non licensed fabric for an approved use. Like not mass produced, bespoke (totally one off cushions) and you have had you supplier approve this use, does it break copyright law (ot other IP law) to say the fabric designer you have used. For example ’designer name velvet, cushion’. TIA

[AndyJ]

Hi Rowena and welcome,

I'm not quite sure what you mean by non-licensed fabric. Do you mean the fabric has not been produced under licence (ie it's a knockoff). If that is the case then you cannot claim that it is the designer's fabric. Doing so could lead to possible copyright and trade mark claims, and in the worst case, possibly even criminal fraud charges, if you know that the fabric is not genuine. Somehow I don't think that is what you meant.

If what you mean is that it is genuine fabric from the designer but he or she has not specifically authorised you to make up cushion covers using the fabric, that is altogether different. Assuming that all steps along the way are legal: the fabric is genuine, you bought from a legitimate source and have no reason to doubt its authenticity, then selling the covers using the designer's name should be OK. Unless it was made explicitly clear to you at the point of sale that you may not make the fabric into cushion covers, there is an implied licence that you may do whatever you wish with the fabric, and since it is genuine, you may inform your potential buyers about the source of the fabric.The only thing you need to be careful about is the actual wording you use. It is important to use of the designer's name descriptively, so something like 'Cushions made from a velvet fabric designed by X', rather than your example which might imply too heavily that the designer had actually produced the cushion covers. This is especially important if the designer also markets their own soft furnishings, for instance as used to be the case with Laura Ashley or Cath Kidston's designs.

I hope this clarifies things for you.

[Rowena10]

That’s exactly what I mean. I purchased fabric that has no legal license apart from any sales terms agreed at point of sale, and have made cushions (but they are bespoke and not mass produced, each one different), but I meet the requirements of my suppliers terms of sale. In fact when I bought the fabric there were no terms of sale from them in regards to it at all (I have asked 5 times for them to forward the email that had the terms in originally it sent to me, they can’t do this because it never happened. I work with proforma so all ordered via email if they want me to agree to terms they have to physical send me the terms). I think they literally forgot to include there terms and have me agree, their mistake. But even if they did agree to those terms, they have said I did not breach those terms. so have NOT breached anything and I have this in writing from my supplier. But they are still trying to say that using the designers name to say ‘designer name velvet, cushions’ breaches IP law. But won’t tell me what IP law.

Thing is, it’s not my supplier that has had a problem in the first place. I was doing my due diligence contacting them to check. It’s the designer company them selves that contacted a third party company to accuse me of breaching terms with her! But I have never done any business with her. I have agreed no terms, I use a separate trade supplier. So I am being defamed by someone I have no legal terms with what so ever. To say I am ******** off is an under statement. Thank you for your time.

[AndyJ]

Hi Rowena,

If they can't tell you what IP infringement you are alleged to have committed, then there's really no legal basis for their action. As you say, you are not in any contractual arrangement with the designer and therefore they cannot belatedly impose any conditions on the sale by a third party which then become binding on you.

I suspect that the issue which you face is that the designer is making these unfounded accusations to your service provider or a marketplace, such as Etsy, in an attempt to stop you selling your products. If this is the case then you do face difficulties because the marketplace can decline to list your goods without necessarily giving you any reason.

It is way outside the purpose of this forum to discuss restraint of trade etc issues, but if the designer is insisting that there are (or were) conditions of sale attached to this fabric, then that would be the route you need to go down. However restraint of trade doctrine does not apply when there is no contractual basis for a business to business relationship (as seems to be the case here) and therefore it may be more productive to look at the area of law dealing with unfair competition. You can read more about this here: https://www.gov.uk/cartels-price-fixing

[Rowena10]

Thank you. That is as I thought. I am seeking legal advice. It was not a market place like Etsy etc.

Thanks again. Very helpful.