Engaging with cease and desist sender

[Maggie1212]

Hi guys,
I own a political satire store and received a cease and desist letter for a product that is not on sale. It's an original artwork depicting a deceased rock star.
The thing is that it's a hidden page on the website. I'm surprised it even showed up in search results. It was not my intention to have the product on sale.

Long story short they are asking for £6K + £500 per day. Totally unreasonable imo.

Here's my question. Knowing that most of these copyright infringement cases go nowhere (I have sent a fair share of cease and desist letters myself), it it better to just leave it and risk having to pay a lot more money later on (which I can't afford so I would have to close down my small business), or to engage in a dialogue with them and to explain the situation.
Legally speaking, would it hurt me to engage in dialogue with hem?
Thanks in advance,

 

[MOIC]

Who owns the copyright of the artwork?

 

[Maggie1212]

Who owns the copyright of the artwork?

The artwork is mine. It depicts the rock star. It's not based on any photograph, it's basically just a scribble depitcting the rockstar and a quote often attributed to him

 

[surreyaces]

What copyright are they claiming you have infringed?

 

[Maggie1212]

What copyright are they claiming you have infringed?

This is what they say:
"XXX estate has recently noticed that your company uses signs identical and/or, confusingly similar to the "xxx rockstar" trademarks to offer, promote and/or commercialize t-shirts, via your website".

To clarify, there are millions of t-shirts with this person's face all over the internet.

 

[surreyaces]

Ah so its trade marks that are relevant here rather than copyright. I know its not helpful, but I don't see how anyone can advise you without knowing the full facts. We'd need to know what their trade mark is, and the exact text that you have used on your artwork, as a bare minimum in order to offer any opinion.

 

[Maggie1212]

Ah so its trade marks that are relevant here rather than copyright. I know its not helpful, but I don't see how anyone can advise you without knowing the full facts. We'd need to know what their trade mark is, and the exact text that you have used on your artwork, as a bare minimum in order to offer any opinion.

Ok thank you

 

[The Byre]

You are allowed to satire the living and the dead and poke fun at them.

The dead cannot be defamed under English law. This is because defamation is a personal act that cannot be brought on someone's behalf.

As there is no such thing as image rights under English or Scottish law, all they can claim is passing off and/or the abuse of a trade mark.

To succeed in a claim, the celebrity's estate would have to show that:

• at the time of the acts complained of they had a significant reputation or goodwill;
• the actions of the defendant gave rise to a false message which would be understood by a not insignificant section of the general public that their goods have been endorsed or approved by the claimant.

As for Trade Mark infringement - that is down to the details. If you have not traded using the 'offending' image, then no infringement can be claimed.

 

[kulture]

So to answer your question, details matter, no-one here can give you a definative answer without the details, BUT it may be that a simple response stating the facts would make this go away. You really should take proferssional advice first, but your case is that it is your artwork, that it is not being used to promote or sell items, that it does not infringe their trademark.

 

[Maggie1212]

So to answer your question, details matter, no-one here can give you a definative answer without the details, BUT it may be that a simple response stating the facts would make this go away. You really should take proferssional advice first, but your case is that it is your artwork, that it is not being used to promote or sell items, that it does not infringe their trademark.

Thank you

 

[Maggie1212]

So to answer your question, details matter, no-one here can give you a definative answer without the details, BUT it may be that a simple response stating the facts would make this go away. You really should take proferssional advice first, but your case is that it is your artwork, that it is not being used to promote or sell items, that it does not infringe their trademark.

Hi there, the problem is that the product page itself was active. I thought i had unpublished it years ago, but it was still showing up in google search. As far as I'm aware, I didn't sell any tees with this artwork on them.
So to them it looks like an active product page. I have screenshots proving that the page was "hidden" at the time I received the letter, and my order records, but that's all I have.

I will seek legal advice if they continue pursuing this case.

 

[surreyaces]

I expect it is the text they are concerned about. It's possible that the quote could have been registered as a trade mark.

 

[Mr D]

You are allowed to satire the living and the dead and poke fun at them.

The dead cannot be defamed under English law. This is because defamation is a personal act that cannot be brought on someone's behalf.

As there is no such thing as image rights under English or Scottish law, all they can claim is passing off and/or the abuse of a trade mark.

To succeed in a claim, the celebrity's estate would have to show that:

• at the time of the acts complained of they had a significant reputation or goodwill;
• the actions of the defendant gave rise to a false message which would be understood by a not insignificant section of the general public that their goods have been endorsed or approved by the claimant.

As for Trade Mark infringement - that is down to the details. If you have not traded using the 'offending' image, then no infringement can be claimed.

The dead cannot be defamed here unless they were called Jimmy.

 

[Mr D]

Hi there, the problem is that the product page itself was active. I thought i had unpublished it years ago, but it was still showing up in google search. As far as I'm aware, I didn't sell any tees with this artwork on them.
So to them it looks like an active product page. I have screenshots proving that the page was "hidden" at the time I received the letter, and my order records, but that's all I have.

I will seek legal advice if they continue pursuing this case.

If they found the page then others could have found it.
Have you any stats showing page count of just them?

 

[Maggie1212]

I can probably look it up via Google Analytics.
Having done some research, I can see that they deliberately used the word "signs" similar to trademarks they hold because they can't do anything about the image itself (British law as stated above).
Well, we have not used any "signs" and they have a very weak case. I've decided to ignore them for now.

 

[MOIC]

I would get advice from a competent patent attorney in this field.

It may be money well invested.