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Gabs Voom

ūüė° Why Our Items are Being Removed for Intellectual Porperty Policy

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On 7/17/2019 at 2:03 PM, Gabs Voom said:

You are behaving like a troll (this is not an attack, just trying to be constructive about your attack against me)  I hope you are not trying to turn this topic into a drama to give an excuse to have the topic closed or deleted. (actually Linden does not need any excuse to do it whatsoever .. I know ) If you wanted to trigger me with a grain of arrogance, sorry but no ..

On the contrary of what you insinuate, all I wanted was to get feedback about this issue.

 

Wow, pretty hostile words aimed at Mollynews there. :( Here's how feedback works, though: sometimes ppl won't tell you exactly what you wanted to hear.

I read the entire thread, and I just want to react to this particular comment of yours:

"We have been running an honest business since 2007 and we never had problems like this in the past."

A typical case of a post hoc ergo propter hoc fallacy: yes, you never got into trouble with this before, but it doen't therefore follow that everything was on the up-and-up before. And let's be brutally honest here, you have been using the Harley name to promote your bikes (yes, even by saying 'Harley Style'). And you can squabble a bit, and say "Well, but not on every bike!" Or maybe not on a few of the bikes that were removed. But if you step back a bit, I think it's fair to say this was coming to bite you in the butt, sooner or later.

As for 'Trade dress', IANAL, but I did study Law. And one of the first  things they taught us in IP Law, is: don't ever say you were 'inspired by.'  It's a rather common mistake, generally made by honest ppl, trying to do the right thing. But all that really accomplishes, is strengthen the case for the lawyers on the other side to demonstrate that you willfully meant to infringe. That's like me selling a doll, saying 'Inspired by Barbie Doll.' That's never a smart thing. :) Mind you, it can very well be inspired by Barbie Doll, but don't ever say so! (Come to think of it, LOL, that's actually mentioned in the Branding Guidelines too).

I'm not happy to hear you feel you need to give up your business, btw. :( It feels unduly harsh, for a process that didn't exacty go down entirely without hiccups, far as can tell; LL clearly has room to improve there. Should you ever start up a new business again, though, just don't say 'Harvey Style' any more: yes, you may sell a few less because of it (but let's face, putting 'Harvey Style' there was done precisely so you could sell more of them).

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23 hours ago, Fionalein said:

It is a commonly used word ... it might be something the harley owners group deliberately associated with by choosing their acronym (god knows why they chose to though).

https://en.wikipedia.org/wiki/Road_hog

I"m not discounting that.  The first recorded usage for the term is from 1887.  However, the fact that the Harley stock ticker symbol is HOG, and in relation to motor cycles specifically the word hog has a very strong association with the Harley-Davidson brand specifically -- coming from multiple angles.  Right or wrong, the usage of the term might be one of the flags for which that claim is being applied.  That is all I'm saying as a point of conversation and contribution.  I could very well be in error, but it's something to at least consider. 

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1 hour ago, Anna Salyx said:

I"m not discounting that.  The first recorded usage for the term is from 1887.  However, the fact that the Harley stock ticker symbol is HOG, and in relation to motor cycles specifically the word hog has a very strong association with the Harley-Davidson brand specifically -- coming from multiple angles.  Right or wrong, the usage of the term might be one of the flags for which that claim is being applied.  That is all I'm saying as a point of conversation and contribution.  I could very well be in error, but it's something to at least consider. 

I know from POD art sites, they tend to apply trademarks and the like in a way that's much stricter than the actual laws. They want to avoid anything going to court (even if they'd win), so play it safer than safe. It wouldn't surprise me if LL does that as well. So, legally, it might not be an issue... but you might well be right that LL would play it safe.

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They removed my Hello Kitty jams but meanwhile there are other Hello Kitties by others never taken down. I get annoyed when they single out one and not all. Usually these are not the companies but other members hitting that report button. 

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1 hour ago, Faye Feldragonne said:

They removed my Hello Kitty jams but meanwhile there are other Hello Kitties by others never taken down. I get annoyed when they single out one and not all. Usually these are not the companies but other members hitting that report button. 

But you cannot flag a product as "copyright infringement." Try it.

While LL could use common sense and just purge all of the known brands, they cannot, due to their safe-harbor status. They must rely on DMCA claims to act.

There must have been something else wrong with your product listing for it to get taken down. I can speak from experience and say that this is almost definitely the case, because we've had so many threads about unlistings that are easily explained.

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Posted (edited)

I don't really get all this stuff with the names...because I've read a title cannot be copywritten.  For instance, a song.  Say, The Beatle's song "Yesterday".  Anyone can write a song titled "Yesterday".

It's the trademark that is protected.  

From Legal Zoom:

Common things you CAN protect with a copyright:

  • Written Works¬†- This can include books, articles, blogs, and screenplays.
  • Musical & Dramatic Works¬†- This can include songs, plays, and choreography.
  • Artistic Works¬†- This can include photgraphs, paintings, and sculptures.
  • Software¬†- This can include computer programs (systems and applications).

 

Common things you CANNOT protect with a copyright:

  • Name¬†- A company's name and its line of products can be protected by a¬†trademark.
  • Logo¬†- Company logos or other symbols and designs to create brand recognition can be protected by a¬†trademark. Note: A¬†copyright¬†may be able to protect a logo as an artistic work.
  • Phrase¬†- Company slogans or other phrases used as a brand for your products or services can be protected by a¬†trademark.
  • Ideas¬†- An idea in the form of an invention can be protected by a¬†patent.

Examples of a trademark:  

https://www.google.com/search?q=trademark&client=firefox-b-d&channel=crow&source=lnms&tbm=isch&sa=X&ved=0ahUKEwim6I-6-YfkAhUF7qwKHdV1DKgQ_AUIEigC&biw=1680&bih=936

 

From a copyright standpoint, you don't even have a dmca.  A title cannot be copywritten.  A trademark is kind of like an original work of art and I do not see you used HD's trademark on your bikes.  

Unless it was the way Indian was spelled.  However, I do not know Indian's trademark.  I've only heard of the bike. 

__________________________ 

Edit:  I looked at Harley Davidson's trademark.  You used the Harley-Davidson trademark and put in other letters.

You'd better take these off asap and then take that trademark out of your photos for your bike.  Otherwise, if you have no trademarks on the bikes themselves you are fine.  You need to redo the photos.

Sorry:  EDIT AGAIN...had to carefully read through the whole thread.  The below photo is of a competitor's bike, not the OP's line.  However, if the OP did not infringe upon the trademark, he and his partner did nothing wrong from my understanding....saying Harley Style is an infringement?...I don't quite get that.  Sorry, for my ignorance in this matter but it is a little confusing.  Just trying to help and to understand.  

 

trademark.jpg

Edited by FairreLilette

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Posted (edited)
On 7/28/2019 at 7:48 AM, kiramanell said:

 

Wow, pretty hostile words aimed at Mollynews there. :( Here's how feedback works, though: sometimes ppl won't tell you exactly what you wanted to hear.

I read the entire thread, and I just want to react to this particular comment of yours:

"We have been running an honest business since 2007 and we never had problems like this in the past."

A typical case of a post hoc ergo propter hoc fallacy: yes, you never got into trouble with this before, but it doen't therefore follow that everything was on the up-and-up before. And let's be brutally honest here, you have been using the Harley name to promote your bikes (yes, even by saying 'Harley Style'). And you can squabble a bit, and say "Well, but not on every bike!" Or maybe not on a few of the bikes that were removed. But if you step back a bit, I think it's fair to say this was coming to bite you in the butt, sooner or later.

As for 'Trade dress', IANAL, but I did study Law. And one of the first  things they taught us in IP Law, is: don't ever say you were 'inspired by.'  It's a rather common mistake, generally made by honest ppl, trying to do the right thing. But all that really accomplishes, is strengthen the case for the lawyers on the other side to demonstrate that you willfully meant to infringe. That's like me selling a doll, saying 'Inspired by Barbie Doll.' That's never a smart thing. :) Mind you, it can very well be inspired by Barbie Doll, but don't ever say so! (Come to think of it, LOL, that's actually mentioned in the Branding Guidelines too).

 

I do not know if the OP even had an actual DMCA infringement as he said he took the listings down...so I haven't checked it out.

However, come to think of it, I do now remember two years when I started on Marketplace it says "do not put in your listings in the style of" or something to that affect.  I cannot  remember the exact words.

I think it's more of a TOS issue written by Linden Labs rather than a real infringement IF he did not use trademarks or logos on his bikes.  Trademarks are kind of like an original work of art.

Of course, there is always fair use.  But, that is whole other issue.  

Fair use is using part of an artwork but changing it enough so it's different...kind of like what Andy Warhol did.  

p.s.  EDIT:  What if the "don't say in the style of" (insert brand name here) was not written in 2007?  What if LL changed it.  Would the sellers have been updated of that?  This is what I am wondering.  

And, regarding Barbie.  What about the song "Barbie Girl".  I know parodies are allowed such as what Weird Al Yankovic and other satirists might do.

But Mattel sued MCA records to no avail.  And, I'm sure because the song does not include any trademark or logo whatsoever.

__________

On December 5th 2000, Mattel sued MCA Records, the recording company of Aqua, saying the song violated the Barbie trademark and turned Barbie into an object, referring to her as a "Blonde Bimbo."[2] They alleged the song had violated their copyrights and trademarks of Barbie, and that its lyrics had tarnished the reputation of their trademark and impinged on their marketing plan. Mattel also claimed that the cover packaging of the single used "Barbie pink", a trademarked color owned by Mattel.[3] MCA contested Mattel's claims and countersued for defamation after Mattel had likened MCA to a bank robber.[4]

The lawsuit filed by Mattel was dismissed by the lower courts, and this dismissal was upheld. Mattel requested review by the Supreme Court of the United States, but its petition for certiorari was denied.[5] In 2002, Judge Alex Kozinski ruled the song was protected as a parody under the trademark doctrine of nominative use and the First Amendment to the United States Constitution. He also threw out the defamation lawsuit that Aqua's record company filed against Mattel. Kozinski concluded his ruling by saying, "The parties are advised to chill."[6][7]

 

Furthermore, the main purpose of protecting intellectual property is to help prevent counterfeiting or piracy.  

Counterfeiting is non-Gucci persons making purses and putting the Gucci trademark on them and selling them as Gucci purses when they ARE NOT Gucci (using Gucci's trademark) purses.  This is really what it is all about - to help prevent pirated goods from being sold.  It is a major crime.  

No one actually owns the names "Barbie" or "Ken" or "Harley Davidson".  A real person could be named those names and have a right to use their own name.  

This use of no brands, however, is in the TOS and should be abided by because that is the way Linden Labs wants it and it's better for your own sanity.

However, the real DMCA would be someone copy-botting the OP's motorcycles and selling them themselves as their own creation.

DMCA is basically an anti-piracy law; and, judging by it's date, was probably put in place to help stop all the illegal free down-loading of music which was rampant at the time.    

However, this thing with needing a lawyer is ridiculous.  Linden Labs should just issue that it needs to be changed by such and such a date.   

 

 

 

 

Edited by FairreLilette
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