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Are and titles used on Etsy intellectual property....ie. Custom Dog Charm Bracelet or Personalized Charm Bracelet?

Genoa, IL |

I have been told by a shop owner on Etsy that her bracelets are copywrighted and the tags and titles I am using to describe some of the jewelry I sell on Etsy is her intellectual property and I had to remove them. After researching I am still confused. I would like to know for certain if she is correct or just bullying me because I may be competition. Some examples of the tags are....Dog Charm Bracelet, Dog Lover Jewelry, Dog Photo Jewelry. An example of the title is...."Dog Jewelry, Dog Charm Bracelet, Personalized Memorial Dog Bracelet, Photo Dog Jewelry, Memory Dog Bracelet, Dog Photo Jewelry".

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Filed under: Intellectual property
Attorney answers 4

Best Answer
Posted

If the tags or titles are descriptive, then it is not likely that these are or will be entitled to trademark protection. The designs themselves, however, if you are imitating them might be entitled to trade dress or copyright protection. In the latter case, all that is required is creation of an article which embodies an identifiable level of originality and expression.

A ring with no features would not be entitled to protection, but an original, sculptured design on a ring would be, for example.

Brian Kenneth Dinicola

Brian Kenneth Dinicola

Posted

The same copyright protection would attach to charms of a bracelet, or even the bracelet design itself, subject to the threshold levels of originality and expression being satisfied.

Asker

Posted

Are you saying she could have a copyright on the charms even though they are available to purchase by anyone?

Brian Kenneth Dinicola

Brian Kenneth Dinicola

Posted

Yes, well, if she created the charms and they are original works of authorship (she can't just cast a copy of a Monopoly Board game piece and claim it to be her own work), then she does not lose the right to stop others from copying the charms through enforcement of copyrights. However, if you are saying that you and she are both just buying and reselling publicly available charms and attaching them to a bracelet, then no she would not have a copyright on those charms nor could she stop you from reselling them.

Asker

Posted

Thank you Brian. No she is not casting the charms herself. They are publicly available.

Bruce E. Burdick

Bruce E. Burdick

Posted

Be careful with that. The source from which she buys might have copyright, trademark or patent protection on the charms. You need to see an attorney as specific discussion and review of the actual facts is needed to determine where you stand legally. It is clear the lady does not what she claims to know and is feeding you a bunch of nonsense. What protection, if any, she actually has is what you need to know and what an intellectual property lawyer can determine for you. Use an IL-licensed attorney if you are domiciled in IL.

Asker

Posted

I am in Wisconsin she is in California. She has the as being a registered trademark on her shop about page...."Charm Bracelets, Necklaces, Handcrafted Jewelry, Masterfully Crafted * Magically Charming®". How can I myself find out it it is trademarked?

Bruce E. Burdick

Bruce E. Burdick

Posted

www.uspto.gov click on Search for Trademarks in the upper right corner. Next screen choose Basic Word Mark Search and next screen enter the mark you want searched in the Search Field. I don't find Magically Charming to be registered at the US Pat & TM Office, so the use of the R in a circle logo violates Federal law

Bruce E. Burdick

Bruce E. Burdick

Posted

Seems Dea Shelton is likely breaking the law, 15 USC 1125(a)(1)(B) by fraudulent use of a Federal trademark registration symbol to misrepresent here goods and services, a form of false advertising.

Bruce E. Burdick

Bruce E. Burdick

Posted

See this http://tushnet.blogspot.com/2012/01/false-use-of-r-symbol-as-false.html

Bruce E. Burdick

Bruce E. Burdick

Posted

That is more specific information than we usually give here. No you need to consult a lawyer if you want more. Review the answers and comments and select the one you find likely to be best for what you need.

Bruce E. Burdick

Bruce E. Burdick

Posted

Sorry, typo "No" was "NOW" in prior comment.

Posted

It is difficult to obtain a registered mark on such bland descriptive names. I'd say she has a high bar to make such claims. And it's not copyright that protects item names, so if that is what she said, she's either lying or just wrong about what she has. Based on what you've said here, I'd tell her to pound sand, BUT, all I know is your side, told in this truncated form, and I'm making some assumptions.

I'm not your attorney; my answer includes assumptions. If you want me to be your attorney, I'm easy to find.

Asker

Posted

These her exact words...."INTELLECTUAL COPYRIGHT INFORMATION: All titles, tags, and descriptions I create are owned by me as part of intellectual copyright. Did you know if you copy someones intellectual property, in this case, Titles, Tags and Descriptions, you not only hurt them, but yourself in search engine optimization with Google? Eventually google will remove both items from the SEO's, "

Warren Vincent Norred

Warren Vincent Norred

Posted

To have a copyright, one must have a creative work of authorship. She can claim that a title of "Dog Charm Bracelet" is a creative work of authorship, but I don't see it. Be aware that these things are litigated all the time, and litigation is expensive. My guess is that you'd be okay, but even if I'm right, she could sue you and force a defense.

Bruce E. Burdick

Bruce E. Burdick

Posted

Her exact words are more misinformation than information. See a lawyer to find out the actual law.

Posted

It is not likely that the materials are copyright protected based upon the little information you have provided, but there may be much more to the facts than posted here. You are best served by consulting in person with a copyright or IP attorney where you can discuss your concerns in more detail.

Bruce E. Burdick

Bruce E. Burdick

Posted

Asker - Frankly speaking, it sounds like the lady (Dea Shelton, right?) feeding you that line is full of doggy doo. Those names are all very doggone descriptive.

Posted

You need to consult with an Intellectual Property law attorney. In the examples you posit, the shop owner is full of baloney as those are just descriptive terms neither she nor you can claim as exclusively yours.

Her bracelets are not likely "copywrighted" [ protected by 17 USC 106 of the Copyright Act] since they are functional items. However, some aspects might be non-functional artistic ornamentation and be protected to a very limited extent by copyright law. The names are not protected by copyright, but rather only, if at all, by trademark law. See prior paragraph for that.

You need an Illinois licensed attorney to assist you on this since you are based in Genoa, IL. [If you are actually in Genoa, IT and just using Genoa, IL to get on Avvo, then you need a trademark lawyer with international experience. I am one that fits both categories since I am in IL and have extensive experience international licensing in Italy. There are many other good attorneys here on Avvo with licensing experience.]

I am not your lawyer and you are not my client. Free advice here is without recourse and any reliance thereupon is at your sole risk. This is done without compensation as a free public service. I am licensed in IL, MO, TX and I am a Reg. Pat. Atty. so advice in any other jurisdiction is strictly general advice and should be confirmed with an attorney licensed in that jurisdiction.