Use of vintage My Little Pony duvet cover to repurpose into something else

[Mrsvintage]

Hi,

I am in my first year of running a small business handmaking childrenswear using vintage textiles such as sheets and curtains etc.

I have recently started to make little toddler backpacks too and a customer has approached me to ask if she could send me an old, vintage My Little Pony duvet cover to make her child a backpack with.

Would I be infringing any copyright or trademark laws if I was to do this?

Would a disclaimer stating that I do not own the rights to MLP etc be enough to exclude me from any liability or does the fact that it's so old and being completely repurposed from a duvet cover to a bag mean that I don't need to make any considerations in this regard anyway?

Or, is it a complete no no regardless? I would love to do it for her but would be more than comfortable with telling the customer I cannot do it if it means that I would potentially be infringing any laws.

Thank you in advance

[AndyJ]

Hi Mrsvintage,

There would be no infringement of copyright if you re-purpose a piece of fabric in the way you describe. However, the words "My Little Pony" and three of the logos associated with the brand (here, here and here) are or were registered as trade marks, and so if the words and/or these logos appear in the design printed on the fabric you may infringe trade mark law in re-using the fabric. However, as this would be a one-off, and the new owner would be aware that this was not a genuine My Little Pony authorised product, I don't think you run any risk of being sued. I would advise against making other backpacks from the same fabric as this would tend to indicate that the trade marks were being used in the course of trade.

If you are aware of any authorised backpacks featuring My Little Pony being on sale in the UK you might conceivably receive a cease and desist letter from the manufacturer on the grounds that your product was undermining their licensing agreement with Hasbro. However to do that, they would need to know who you were and so this seems an unlikely scenario if this remains a one-off commission and no advertising is involved.

[Mrsvintage]

Thank you so much for your reply Andy

The fabric does not seem to have any of the trademarks/logos on that you kindly linked and it would definitely be a one off.

Once the backpack was finished, would it be acceptable to post a photograph on my social media pages with a disclaimer that this was the only one being made and I do not own the licensing rights etc or would that be classed as advertising anyway?

Finally, and forgive my ignorance in this regard but if I was to receive a Cease and Desist letter, is that effectively just a warning not to do it again (which I wouldn't be anyway) or would it require me to seek legal action to respond?

Many thanks

[AndyJ]

Hi Mrsvintage,

Yes posting a picture of the finished backpack would be fine with precautionary disclaimer. It would also be sensible to not to include any offer to make something similar for other clients in the same posting. That way you couldn't be accused of using the My Little Pony fabric to advertise for more commissions, which might possibly lead to a claim of passing off. Passing off is a similar thing to trade mark infringement, but is more concerned about trading on the goodwill accrued by a trusted brand, so it can feature mere implication rather than the actual use of registered trade marks.

And yes, a cease and desist letter would normally not lead on to any thing more serious if it is complied with. A warning shot, perhaps, where there is insufficient evidence to establish a good claim for outright trade mark infringement, intended to nip some activity in the bud.