Etsy shop shut down Trademark Infringement

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Etsy shop shut down Trademark Infringement

Post by ziggystardust »

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Re: Etsy shop shut down Trademark Infringement

Post by AndyJ »

Hi ziggy,

To answer your last question first, unfortunately you will find quite a few other people on these forums have been involved with Martin F Trainor and his law firm TME Law. See this thread: viewtopic.php?t=3102

Some of the previous claims concerned copyright, and others trade marks. Have a read through all of the postings in that thread to get a general feel for the experience of others and what advice we have tried to provide. It's unfortunate that one of the posters has asked for all his earlier contributions to be redacted, I suspect this may have been a condition of whatever settlement was agreed. Being asked to sign a non-disclosure agreement is quite common in such cases.

From that thread you will see that for trade mark infringement to have occurred under UK law, firstly the band's name would need to have been registered as a trade mark for the relevant class of goods or services, and secondly your use of the name must have been in the course of trade in circumstances where there was no pre-existing defence against a claim. The sort of thing which would be in the course of trade but nonetheless permitted would be if you had used the mark descriptively. For example, if you wish to sell some of your CD collection on Ebay you can say that you are offering David Bowie's The Rise and Fall of Ziggy Stardust and the Spiders from Mars album, because the words are being used to describe the album. Obviously there is no other way in which you can accurately describe the album, even though the words 'David Bowie' and 'Ziggy Stardust' may be registered trade marks (as indeed they are: see here and here). Much the same provisions apply under US trade mark law.

You can check whether the name of the particular band involved in this dispute is also registered as a UK or EU trade mark by using this webpage on the Government's Intellectual Property Office site: Just enter the relevant word or words in the third box down marked Search Words, and leave everything else alone. This should return a number entries, some of which may be for similar words. Make sure you check all the entries which are for the band's name as there may have been several slightly different registrations over the years. Beside each entry it will say one of four things: Registered, Removed, Refused or Dead. You are only interested in those which say Registered as that means they are currently active and thus enjoy trade mark protection. You can then look at details of when the mark was first registered, its next renewal date and who registered the mark. But most importantly you can see for which types of goods and services the mark was registered (where it says List of Services). If the band's name has been registered then I would expect the mark to registered for all kinds of printed material including posters (which are in Class16) in addition to other more obvious things such as recorded music and DVDs etc in other classes, so it is worth checking anyway. Interestingly, neither the 'David Bowie' mark I linked to above nor the three registered marks for the words 'Ziggy Stardust' are registered in class 16 and so these specific marks do not gain any special protection where they are used in connection with the sale of posters. Registered trade marks, whether in the UK or USA, are not automatically a monopoly right, even though many companies who defend their intellectual property in a robust manner behave as if they are.

I hope this explanation points you in the right direction. TME Law are acting within the law (just) but their methods are dubious to say the least. They are using the threat of court action against you despite the fact that you are not within the jurisdiction of the US Courts. Unfortunately Etsy are within the US jurisdiction and as long as they feel there's a threat to them, they will keep your shop account closed.
Advice or comment provided here is not and does not purport to be legal advice as defined by s.12 of Legal Services Act 2007
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