Personally, I don't believe it is, but here's the story:
I designed a parody shirt a while back. Here it is:
It's a parody of an organization called To Write Love On Her Arms. Here's the shirt I'm parodying:
Now I found out after already creating the design, another brand is also parodying the shirt in the same way.
Here is their shirt:
The brand that did this parody recently contacted me after some girl on Twitter said I ripped them off. I replied to the girl saying that I didn't steal their design, I was parodying a brand and just so happened to do it the same way a different person did. It's common to come up with the same idea.
So then someone from this brand I guess read that and hit me up saying: "happens" or not, there's this sweet little thing involving trademarking laws, get stoked for your letter in the mail
Right.
Now here's the run-down of it all.
I created the artwork and text myself in Adobe Illustrator.
The font is a commercial font and not owned by any of these companies. I didn't use any of their logos. And I doubt that this other company parodying the shirt owns a trademark on the phrase "To Spray Love On Her Face". I checked. They do have a (TM) on their logo shirts but that's about it. And I doubt that it's actually a registered trademarked.
So what do you guys think? Am I legally in the right in this situation or what?
Apparently these kids don't realize that you can read anyone tweets on Twitter unless they set it to private.
They brand owners were saying "uh yeah I think it's TM" "Well we are probably in the wrong by making a parody anyway I'll google it" "I should send him a fake C&D letter from my 'lawyer' "
I got a handful of hateful comments on my blog telling me to be original, that I'm not creative, that I'm a ripoff, etc. As well as some that were just a lot of swearing and immaturity.
Is it really hard to believe someone else came up with the same idea and didn't rip it off?
You get a couple of funny people (think characters from a Judd Apatow movie) and show them the original "To Write Love On Her Arms" design, a bet anything one of 'em would make the joke "To Spray Love On Her Face"
I understand why they'd be upset but going about it and saying I'm a thief and I'm infringing on their rights on Twitter, where everyone can read it, it messed up. They should just email me instead of slandering me on the internet.
Litmus test for trademarks is normally that they identify a Source of Goods. In other words, by selling this shirt - do people associate this saying with your company. Do they say "I know this is from company ABC by seeing the statement or saying"?
Well, if they trademarked the design and you modified it slightly and sold it as your own, that would be an infringement on their trademark. It's like taking the dunkin doughnuts logo and changing the text to say "funky toe-farts" but keeping their logo design. It's an obvious rip-off of an existing logo which represents a specific brand. If the trademark and/or copyright exists for the design, you're in for a helluva battle if you went ahead with printing it.
EDIT: just saw the post above, that pretty much says it all.
Well, if they trademarked the design and you modified it slightly and sold it as your own, that would be an infringement on their trademark. It's like taking the dunkin doughnuts logo and changing the text to say "funky toe-farts" but keeping their logo design. It's an obvious change of an existing logo which represents a specific brand. I doubt they trademarked the design, but the copyright exists and if they wanted to go to court about it you'd be in for a battle.
This design mentioned before is a parody. But TWLOHA had a bigger wallet so if they send you a cease and desist it's best to stop doing what your doing.
One comment about parody...
Parody is not a license to do whatever you want. It is a defense to an action. So you'd have to go ahead and pay to defend yourself in the hope that your parody defense works.
As far as who is in the right regarding the two TSLOHF tees, whoever did it first will probably have the better chance at winning. Although, if you both spend money pursuing the issue, there won't be a winner (other than the lawyers, of course).
First off, I didn't copy this design. I'd appreciate it if you didn't say that.
Second, I'm not using their artwork. I'm using a similar font (I believe it's from the same family but it's a little different), but they don't own the rights to that font. I'm not using their name. I doubt they have a trademark on dotted lines and stars.
From what I understand in most parody cases what's most important is whether the parody is stealing customers from the brand they are parodying. In this case, I'm not. Nobody who supports their organization would buy my shirt.
This thread was mainly about the other company who has a similar shirt to mine. But that's been resolved since they seem to have been bluffing and don't own any sort of trademark.
The Teenage Hippo parody shirt has been around since 2008 apparently and have sold them at Warped Tour and such.
If they were to have been sued by TWOLA, it would've happened by now.
I agree, I don't think the original design vs. your design is any issue at this point. But the one that twittered you is an issue. They are clearly similar, and they could possibly be able to prove common law trademark. Or they could just be bluffing and not even really care that much. But these situations usually have a lot of gray area, so without consulting an IP attorney, I'm not sure you can really continue without some level of concern.
I agree, I don't think the original design vs. your design is any issue at this point. But the one that twittered you is an issue. They are clearly similar, and they could possibly be able to prove common law trademark. Or they could just be bluffing and not even really care that much. But these situations usually have a lot of gray area, so without consulting an IP attorney, I'm not sure you can really continue without some level of concern.
Well both shirts are parodying the same thing so we both have the same style, what is in question here is the phrase "To Spray Love On Her Face". You can't sue over a phrase that isn't a registered trademark that you used on one t-shirt. The phrase has NOTHING to do with the brand. Trademarks usually have something to do with a brand, be it a logo, a slogan, mascot, etc. I doubt a trademark could even be registered for it. If I copied their brand slogan or something I could see a problem. But I don't feel that they have a case and they definitely don't have much legal knowledge at all. They are just mad and throwing around legal jargon they recently read on Google. If they do actually get a lawyer who can make a decent claim. Then I'll just take it down. Until then, it's stayin' in the store.
I have just noticed something - under UK and EU law on TM if you have a design which is a TM -- then you need to mention that otherwise anyone can make a similar design and classify himself or herself as an innocent infringer.
You can't sue over a phrase that isn't a registered trademark that you used on one t-shirt.
Are you suggesting that having a registered mark is a prerequisite to filing a lawsuit? I'm not sure that is the case. Having the registration provides better legal benefit, but they can still sue and try to collect damages.
Quote:
Originally Posted by AeresClothing
The phrase has NOTHING to do with the brand.
Doesn't matter. They can claim your shirt is creating confusion and costing them sales.
Quote:
Originally Posted by AeresClothing
Until then, it's stayin' in the store.
I agree. Don't do anything til they send a C&D. They made that claim on twitter, let them follow through.
Are you suggesting that having a registered mark is a prerequisite to filing a lawsuit? I'm not sure that is the case. Having the registration provides better legal benefit, but they can still sue and try to collect damages.
Doesn't matter. They can claim your shirt is creating confusion and costing them sales.
I agree. Don't do anything til they send a C&D. They made that claim on twitter, let them follow through.
Having the trademark definitely helps. These people, atleast one of 'em I talked to seem like young adults. Maybe 19-20. I'm sure they are just trying to scare me.
I mean what do they really own the rights to? They don't own the phrase or the design. Ideas can't be copyrighted.
Is this trademark infringement?? 
