There’s a conversation going on over at Craftster about the use of post consumer goods in crafting. The original poster received a threatening (they are all) Cease and Desist order for her bottlecap earrings.
Her crime? Her use of the recognizable bottlecaps in her crafted item that she was selling is breaching the original manufacturer’s trademark. The letter demanded $5,000 in damages and all of the offending earrings. She was lucky that there are wonderful trademark attorneys that are willing to work pro-bono with crafters against these sorts of things.
According to Chilling Effects Clearinghouse, a joint effort by a number of university law schools, product packaging (what’s known as trade dress) can be protected by a copyright.
The problem stems from when that original packaging is incorporated into a craft. I think this is truly a case of the spirit of the law vs the intention of the law.
Obviously the trademark holder wouldn’t want someone to produce a product and put it in what appears to be the original trademark holder’s packaging. But, we aren’t talking about that. We are talking about taking what is essentially garbage and encorporating it into a work of art.
According to the person who started the conversation and who has been thoughtful enough to keep forum members updated on her case, the lawyer she is working with has told her that indeed her bottle cap earrings could be running afoul of the trademark rights of the company mentioned on the caps.
This seems quite rediculous and surely can’t be what trademark laws are meant to protect. I’ve lost count of the number of post-consumer, but recognizable items I have seen in handcrafted items – not to mention images of the original products in paintings (think Coke and John Deere). I highly doubt all of them have licensing contracts with the trademark holders. Does anyone really think that by incorporating candy wrappers, empty drink pouches, and Altoids tins into crafts has harmed those companies’ brands? In the case of the drink pouches and Altoids – it has probably led to increased sales as crafters needed more raw materials for their crafts.
Extortion on Two Fronts
What really makes the original poster’s story sad is that the Cease & Desist didn’t even come from the holder of the trademark or a company they have hired to represent them! Apparently, there is a whole cottage industry where these third parties will seek out dastardly crafters who use garbage (I mean trade dress) without a license. These firms collect damages and then additionally sell the list of offenders to the trademark holder.
What Would I Do?
I am not an attorney and the only legal advice I will give here is that if you receive one of these Cease & Desist orders to immediately contact an attorney. The thread over on Craftster has some great sources for contacting attorneys who specialize in this kind of thing.
My personal (and non-legal) suggestion would be that if you are planning on using a recognizable post-consumer item in your crafts to contact the trademark holder directly for permission. One crafter in the conversation mentioned she had bumped into the owner of a local micro-brewery and talked to him about using their bottlecaps for her crafts. The micro-brewery owner actually invited the crafter to visit his office and would consider putting her crafts in the brewery’s gift shop!
An Open Suggestion & Request
And I additionally humbly request anyone who owns a trademark on something that crafters may find useful to tell these third parties to get lost and perhaps even sue them for misrepresentation (these 3rd parties are doing far more damage, IMHO than a crafter ever could). I would also suggest they freely offer information on their policies regarding the use of their trade dress in crafts and whether crafters need permission to do so or are prohibited from doing so.
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