[tywebb1989]

I have a couple questions regarding trademarks for t shirt designs and pirated designs.

a) do most of you trademark your designs?

b) has anyone had their designs stolen and re-created with different font etc..if you could share some helpful advice on pursuing these people, I'd appreciate it.

Thanks
Chad

 

[laylaazure]

Re: Trademark issue

I said this before in another thread but I would go to www.freeadvice.com and ask. Also, I'm sure some members on here will have some good advice for you.

 

[sackwear.com]

Re: Trademark issue

Send them a cease and desist. If they are a cafe press store, send the cease and desist to the cafe press legal department and they will pull the designs very quickly. Cafe press is very good about this. You don't even have to deal with the site owner.

If they are not a cafe press store, and they won't honor the C&D, you'll want to go to arbitration to get compensation for damages. If they verify sales through a third party, such as Pay Pal or a credit card service, you can find out exact sales. Then you can get your money. All of it. Every penny. Trust me.

And there's always damage$...

 

[Comin'OutSwingin]

Re: Trademark issue

Send them a cease and desist. If they are a cafe press store, send the cease and desist to the cafe press legal department and they will pull the designs very quickly. Cafe press is very good about this. You don't even have to deal with the site owner.

If they are not a cafe press store, and they won't honor the C&D, you'll want to go to arbitration to get compensation for damages. If they verify sales through a third party, such as Pay Pal or a credit card service, you can find out exact sales. Then you can get your money. All of it. Every penny. Trust me.

And there's always damage$...

This is all assuming that:
1. You can prove that you created this unique design before the alleged "infringer"
created theirs.
2. They sold enough of "your" design for it to even be worth it? If they sold 4 of "your" shirts, it's going to cost you much more to get that money back! If you can go through the lengthy process of proving that you even own the design.

It will be difficult to prove that you created it first. Also, someone could have changed the design, but not the concept. Changing font, color, etc., may make it different enough that it's not the same design. A judge would have to decide.
If you haven't done anything to legally protect a design, you almost have no recourse. Of course you can send a C&D, but they can just through it away, knowing that it will be nearly impossible for you to follow through. Also they could send one right back to you for stealing their design. What to do then?

So, sackwear, it's not as easy as that. A court is not going to just give you money from someone else's sales, just because you have the same design. Proving it is yours, or even unique enough to just be yours, would be very difficult, without protecting it beforehand . It may also be very expensive.

Tywebb1989, you would have to weigh the costs of defending what you believe to be your work against what you have to gain by winning, which may turn out to be not much at all.

 

[tywebb1989]

Re: Trademark issue

Thanks all of you for your replies. I really appreciate it. I see both sides of the coin with respect to legal action. It is a judgement call.

Do you think at the very least you should trademark your designs or is that being too cautious?

 

[Rodney]

Re: Trademark issue

Do you think at the very least you should trademark your designs or is that being too cautious?

It's actually not that easy to trademark your designs. A trademark in general, is to protect a "brand", not a t-shirt slogan or picture (if you have several). You *may* be able to copyright each of your designs, but a trademark is much harder to get than a copyright.

 

[aokusman]

Re: Trademark issue

I think you can actually trademark a t-shirt slogon. Trademarking each and every design is possible but too expensive. You can put all your designs in one book and then copyright that book.

 

[Comin'OutSwingin]

Re: Trademark issue

I think you can actually trademark a t-shirt slogon. Trademarking each and every design is possible but too expensive. You can put all your designs in one book and then copyright that book.

Trademarking a slogan is extremely difficult in its own right. It kind of relates to what Rodney was talking about with a brand. There are companies worth millions that can't trademark their slogans, because of what a trademark is suppose to represent. It is hard for anyone person or company to say that they "own" a particular slogan, so the uspto is very reluctant about giving ownership of slogans.
This is why big companies that have been in business for years still has the TM beside their slogan. It is because they can't get their slogan registered, but would still like to "claim" ownership of it. Once the uspto thinks that a particular slogan is synonymous with a company, then they "may" see fit to let that company register it. But even then, it is not guaranteed. Even trademarking each design(and I think Rodney's right, copyright) is hard to do, even if you had the money. Having the money is only part of the issue. Exactly what can and can't be protected is more of the issue.
Yes, you can put all of them in a book, and the book would be copyrighted, but copyright is much harder to protect and defend than a trademark, which is why trademarking is so difficult. It's because you get a greater level of protection than copyrighting. Copyrighting your "book" of designs would only keep someone from being able to reproduce the designs as they are. If someone were to alter your designs from your book, copyrighting what you had in the book would not protect it from the changes that someone else made. They could take your design and change the color of text and make it bigger. They could place things different ways, but still take the "spirit" of your designs, and you having taken the time to put them in a book and copyright them, would have been for nothing. You must remember that copyrighting and trademarking are different things, and serve different purposes. They are even granted by different parts of the government.

 

[Rodney]

Re: Trademark issue

I think you can actually trademark a t-shirt slogon. Trademarking each and every design is possible but too expensive.

You can trademark a t-shirt slogan, but as I said, it's not easy. Trademarking each and every design would probably be impossible.

The trademark office flat out states that they do not accept just general t-shirt slogans as trademarks, but if you can prove that the trademark/slogan IS your brand, then you'll have a better chance of registering that mark. Trying to prove that 20 different t-shirt slogans are ALL your brand would be next to impossible.

 

[sackwear.com]

Re: Trademark issue

Comin'OutSwining, my response was based on assuming that tywebb had copyrighted his/her designs, or at the very least had some proof of first published date.

Of course it would be difficult to prove anything without this.

After dealing with a few of these pirated shirt sites now, I'm pretty convinced that most of these people are just too stupid to know they are doing anything wrong. A lot of them honestly think that they can just "take" another shirt and re-produce it. Or at least get away with it.

I would advise anyone not to be intimidated by lawyer fees, trademarks, copyrights and all of this. It is worth it to ferociously protect your designs. We are gladly paying to pursue this. At least talk to a lawyer before you give up.

And someone taking the spirit of your design and re-doing it can be pursued if you have copyrighted your work. We have asked our attorneys about this.

Save trademarking for your logo and tradename. Copyright your creative elements (shirt designs).

 

[Comin'OutSwingin]

Re: Trademark issue

And someone taking the spirit of your design and re-doing it can be pursued if you have copyrighted your work. We have asked our attorneys about this.

Save trademarking for your logo and tradename. Copyright your creative elements (shirt designs).

Anything can be pursued. It does not mean you're going to be successful, or that you are right, just because you choose to pursueit, and think that you are right. I'll give you an example of what you can copyright and how it can be changed and take the "spirit" your design.
You can have a design with a stick of butter with a fly in it on a plate with the caption: "Butterfly Delight!". Put that in your "book" that you will copyright. Then I see your shirt and think it's cool, but don't want to infringe on your copyright. So I make a shirt with a bowl of butter with a fly in it on a platter, and somebody taking the lid off, peeking under it. I call my shirt: "Butterfly Surprise!", make more money and thank you for the idea. Since it was in your copyrighted book of designs, what are you going to do about it? You can yell and scream and be mad as h*ll, but there's nothing you're going to be able to do. I just took the "spirit" of your "copyrighted" work and you have no recourse because all you had was a copyright that offers limited protection, and getting the uspto to grant you a trademark on that design would have been nearly impossible.
So yes, I agree that it can be pursued, almost anything can be pursued, but the likelihood of getting some positive action in your favor is slim to none. This is because of the way copyright laws are written and what they are intended to do. Change any copyrighted work enough, and the copyright won't apply to the new work, even if the "spirit" of the copyrighted work still remains.
Also, in order for you to be able to bring a copyright infringement suit, your work "must" be registered by the United States Copyright Office. So just because you put your designs in a book and the book is copyrighted because you created it, you still must register that book of designs with the copyright office before you can bring any kind of suit against someone for stealing your design.
I would encourage you to take a look at the US copyright website http://www.copyright.gov/ to get a better idea of what I mean. You can also find on the site where it talks about getting the copyright for designs and that the only element that is protected is the actual design itself, not the idea behind the design(spirit). That is what leaves the door open for others to steal the spirit and concept of your designs, because copyright registration doesn't protect your ideas and concepts(nor was it intended to).

 

[aokusman]

Re: Trademark issue

Why do you say that it would be almost impossible to trademark the above. I searched different types of trademarks on the uspto website and found a lot of registered images with captions?

 

[Rodney]

Re: Trademark issue

Why do you say that it would be almost impossible to trademark the above. I searched different types of trademarks on the uspto website and found a lot of registered images with captions?

I explained it clearly above why I said that

I said it would be almost impossible to trademark your whole t-shirt line of witty sayings because a trademark is designed to protect a "brand". So you would need to prove that each saying is your BRAND.

The trademark office has said that they don't JUST protect t-shirt slogans. But they will protect the slogan if the slogan is also a brand.

I'm sure you will find trademarks on the USPTO website (some may not actually be live, but just applications), but the ones that are live are most likely protecting a brand, not just a bunch of different t-shirt slogans from the same company.

 

[Rodney]

Re: Trademark issue

I would advise anyone not to be intimidated by lawyer fees, trademarks, copyrights and all of this. It is worth it to ferociously protect your designs. We are gladly paying to pursue this. At least talk to a lawyer before you give up.

I agree with this.

I wouldn't be discouraged by CominOutSwinging's remarks against trying to protect yourself. It is possible to stay protected if you are diligent about it.

 

[Comin'OutSwingin]

Re: Trademark issue

I also agree completely. And I think the best way to not be intimidated is to operate from a standpoint of knowledge. Learn as much as you can on your own, not just what you've heard people say, or what you think may be common knowledge. I believe in protecting yourself fully. I also suggest that when you consult an attorney or hire one, that you don't get a lawyer that specializes in DUI cases to do your trademarking and copyrighting. I have found that some lawyers that "specialize" in other areas don't even know some of the basic things about trademarks. Things that are listed on the uspto website. There are attorneys out there that would tell you anything, just to get your money.

As to trademarking designs with captions, like Rodney said, the caption has to be your brand. And in most cases you have to prove that a caption or slogan has become part of your brand over time. They are *very* reluctant to give trademarks to a caption or slogan. You may see registered trademarks that have captions, but that does not mean that the caption is part of the "registered" mark. Rodney is right. Many of those live records are just applications and have no registration number and the ones that are registered and have captions are more than likey a part of the brand. Take Papa John's for example. Their "Better Ingredients. Better Pizza." is a registered trademark.
This is because it is part of their brand. That's the difference. If you have lots of different designs with different sayings on each, it will be very difficult to prove that this is your brand, and you will most likely lose your filing fee if you filed for a trademark for each one of your designs.

I happen to be in another boat. I am trying to build a brand, and I have a slogan that is part of my brand, that goes along with one picture. I hope to have it registered along with my brand, or at least one day through it being used along with my design, but there is no guarantee. My attorney is still in the process of seeing if my company name, design, or slogan has been or is being used by anyone.

 

[monkeylantern]

Re: Trademark issue

Please learn to love the paragraph Comin'Out!

 

[Comin'OutSwingin]

Re: Trademark issue

Please learn to love the paragraph Comin'Out!

Sorry. You know how I get. Once I get going I forget to separate my thoughts. I tend to be a little long-winded at times, too. I'll edit it to make it a little more readable.

 

[real]

Re: Trademark issue

i would assume, that if you had for example a psd file of a design you created, thats all you really need as evidence to prove you infact created the design, my psd files are large and have all the layers required to make a design, if someone copied my design all they have is the final flat image, and they dont have the concept, the pre concepts and full layered files contained in my psd file. especially if you use particular photos and clip art from all over the net, how does one prove what that means or what that portion of an image is if they have no idea where the creator got it from lol.

thank god u cant reverse engineer an image to get layers and stuff like you would for flash haha...

 

[Comin'OutSwingin]

Re: Trademark issue

i would assume, that if you had for example a psd file of a design you created, thats all you really need as evidence to prove you infact created the design, my psd files are large and have all the layers required to make a design, if someone copied my design all they have is the final flat image, and they dont have the concept, the pre concepts and full layered files contained in my psd file. especially if you use particular photos and clip art from all over the net, how does one prove what that means or what that portion of an image is if they have no idea where the creator got it from lol.

thank god u cant reverse engineer an image to get layers and stuff like you would for flash haha...

Real, I think you are missing the point. It doesn't matter if you can prove that you created a particular design first if you haven't registered the copyright or obtained a registered trademark. That is your only protection. As stated before, it is very difficult to obtain a trademark for a t-shirt design with slogans unless the slogan is your brand. Copyrighting can be done, but even if you obtain a copyright, it only protects your exact image. Someone can change it enough to be "their" image.

Also, anyone can create a psd file from a flat image(jpg, gif, bmp). There are many software programs that will let you open a jpeg image and save it as whatever you want(psd, tiff, etc.). Having a psd file isn't really proving anything.
Just because you have psd files of your images doesn't prove that you created them either. I could have created my images and saved them as something other than a psd. And you could have come along and copied my image, separated all the colors into layers and saved it as a psd. Just because you have a psd of the image, and all I have is a jpg, doesn't mean you didn't steal it! Screen printers separate layers and save artwork as psd files everyday with customer submitted artwork!

 

[Solmu]

Re: Trademark issue

Real, I think you are missing the point. It doesn't matter if you can prove that you created a particular design first if you haven't registered the copyright or obtained a registered trademark. That is your only protection.

Yes and no.

Yes, it's your only protection to get full remuneration.

No, it's not your only legal protection to stop people stealing your work.

It's also better to register your work in case the other designer is claiming independent creation, but it is sometimes possible to prove they copied your image.

Copyrighting can be done, but even if you obtain a copyright, it only protects your exact image. Someone can change it enough to be "their" image.

Again, yes and no.

I think on this and some other threads you've been giving the impression that a few tweaks here and there and someone will be safe - I'd say that's very much not the case. They may get away with it with sufficiently expensive lawyers (justice being an ever fickle dame), but Copyright law would indicate that shouldn't be the case.

Copyright won't protect an idea or a concept, but it will protect more than just an exact image.

Also, anyone can create a psd file from a flat image(jpg, gif, bmp). [snip] Having a psd file isn't really proving anything.
Just because you have psd files of your images doesn't prove that you created them either. [snip] And you could have come along and copied my image, separated all the colors into layers and saved it as a psd.

real didn't say that merely having a .psd was proof.

They said that having a multi-layered .psd that contains information not seen in the final image, that indicates how the image was built up layer upon layer to achieve a final result, and has the full reference material used to create the image, would provide evidence that you created the image yourself and didn't just copy a flat file.

While it's not "all you really need as evidence" (you could create all that from scratch once you found out a court case depended on it), it is a useful piece of evidence.

That's not just a matter of some simple colour separations anyone could make after the fact, that's knowing where every little element came from, and having overlapping segments showing where data is present but not seen in the final form.

Particularly when it comes to one of the popular fashion trends of layered design (i.e. a series of chaotic elements laid one on top of the other) this could be useful.

Yes concept sketches and the like can be made after the fact, but if your legal opponent doesn't bother to create fake evidence, and you have your real work-in-progress drafts, it should at least help in a court of law.