​Copyright bullies suing small YouTube content creators over trademarked geometrical shapes

[LogicalDrm]

10 hours ago, Caroline said:

Trademarks and copyrights are a joke.

You say that  now. But I think you have different tone after someone takes credit from the work you did.

***

 

So apart from how laws work and should apply, there seems to be some odd ideas of how much money actions and results are worth. If you have steady income, spending $1k to save $100k is easy choice. This guy supposedly makes about that from YouTube monthly. If he has day job too, why such cry over spending some money to save more money?

[Mark Kaine]

2 hours ago, Spotty said:

The Adidas logo is a good example of a logo that is super simple but also very recognisable. If you see those three white stripes on sportswear you will immediately think of the adidas brand, so they need a way to protect that logo to protect their brand.

Sony has the circle, square, triangle, X trademarked and they're extremely basic shapes. But I would also argue they need to have them trademarked to prevent another games console manufacturer using them on their branding to piggyback off of Sony's success and marketing.

Yeah, but honestly I don't know the exact regulations regarding that,  but i think its more complicated than that from what I recall.  So with the addidas stripes, they need to be at an angle, at least similar,  and as I said, even 2 stripes *with the same angle and dimensions* are ok, because its 2 stripes, not 3 (what is what addidas trademarked)

 

And with Playstation x, square, circle, triangle,  yes, but i do believe they would have to be similar proportions as well,  the proportions are very distinctive and not just generic shapes out of a paint program... which is why a triangle or square etc, with different proportions would probably not infringe the trademark  - all 4 together, even if different,  im not sure tbh, but at least they're selling controllers like that on ebay etc, usually its just not a full circle, square,  etc, but still very similar (but im not sure about the legality)

Which brings me back to generic shapes that apparently aren't altered from the source (I'm like 99% certain they just took those chevrons from some paint program...)  should not qualify for a trademark... and i think at some point they didn't,  but that has changed at some point  -- even if that is the status quo, I cannot overlook how hilariously generic and uncreative this "logo" is.

 

 

2 hours ago, Spotty said:

trademark laws seem easier to understand than copyright. "Someone else uses that logo? You can't use it."

Well I disagree seems as messy as it gets, and I also thought we aren't getting the full story here, since *this* is (seems) to be the actual "logo"

 

Doesn't look anything Iike what this youtuber supposedly used?

[RejZoR]

Waiting for Audi to sue organizers of Olympic games if this idiocy is actually a thing. How can you trademark such basic things is beyond me.

[Mark Kaine]

The funny thing is this isnt even their logo?

 

 

 

They just "trademarked" this pattern it looks like??? Lol that's even worse...

 

 

So yeah, while they're *probably* in the right here this very much looks like 'trademark trolling " and shouldn't be a thing..

 

Brb, trademarking every random shape i can find in 3d paint...

[Spotty]

8 hours ago, Mark Kaine said:

Well I disagree seems as messy as it gets, and I also thought we aren't getting the full story here, since *this* is (seems) to be the actual "logo"

You can trademark more than a company logo. You can also trademark patterns and designs used in your product or packaging, or really anything you use to identify your products. "Think different" is a trademarked slogan but it's not Apple's logo.

https://www.apple.com/legal/intellectual-property/trademark/appletmlist.html

 

Using Adidas as an example, the 3 white stripes down the side of trackpants isn't their logo. This is:

[wanderingfool2]

8 hours ago, Mark Kaine said:

Yeah, but honestly I don't know the exact regulations regarding that,  but i think its more complicated than that from what I recall.  So with the addidas stripes, they need to be at an angle, at least similar,  and as I said, even 2 stripes *with the same angle and dimensions* are ok, because its 2 stripes, not 3 (what is what addidas trademarked)

Trademarks aren't black and white like patents/copyrights are in terms of infringement.  The way I was always taught (business law class, so very high level stuff, nothing really nitty gritty) all that you really need to show is that a reasonable person could mistake the symbol for it.

 

8 hours ago, RejZoR said:

Waiting for Audi to sue organizers of Olympic games if this idiocy is actually a thing. How can you trademark such basic things is beyond me.

The Olympic rings were designed first, and are trademarked by the IOC.  They did sue Audi in 1995, but failed because they approached as Audi intentionally chose the 4 rings to mimic the rings, but didn't really have the proof.  Car manufacturing and the fact it was 4 rings, not 5 and in a line is what saved Audi...although if the IOC had found any evidence Audi intentionally did 4 rings to make it similar to the Olympic rings they would have lost.

 

Trademarks are about design and notoriety.  Sure, you could pick more generic shapes but that also means it's a lot more restrictive in terms of products.  Like clothing vs stickers...you wouldn't get in trouble for producing stickers if the shape trademarked was "generic" shapes (well unless marketed for clothing).  Again as well, someone said in Germany that pattern on clothing is associated closely with the brand so even though it's "basic" it's still distinctive.

 

A note as well with trademarks, you can easily lose a trademark if it the symbol becomes too common place or synonymous with the product.  Also more basic trademarks makes it harder to prove willful usage (or rather if the person plays the, I didn't know it existed argument...which he admitted to copying the pattern so he just threw away his best defense).

[Spotty]

8 minutes ago, wanderingfool2 said:

Also more basic trademarks makes it harder to prove willful usage (or rather if the person plays the, I didn't know it existed argument...which he admitted to copying the pattern so he just threw away his best defense).

Just to clarify; he claimed he didn't know of Hummel the Danish clothing company. He admitted to stealing the design from a different company that makes cycling equipment called "wahoo" who use the design on their "kickr" products. He was intending to steal someone else's design, not the company who sued him. 

 

Trying to steal the design off of this thing I guess

Spoiler

 

Edited November 13, 2021 by Spotty

[RejZoR]

1 hour ago, Spotty said:

You can trademark more than a company logo. You can also trademark patterns and designs used in your product or packaging, or really anything you use to identify your products. "Think different" is a trademarked slogan but it's not Apple's logo.

https://www.apple.com/legal/intellectual-property/trademark/appletmlist.html

 

Using Adidas as an example, the 3 white stripes down the side of trackpants isn't their logo. This is:

Three white stripes are trademark of Gopniks, not Adidas.

[LogicalDrm]

30 minutes ago, genisboy said:

You have people that just coil up and hope it stops by itself when being attacked/bullied, instead of fighting back.  It is not smart but it certainly is not that uncommon. Most victims of bullying respond in that passive way. In school as a kid or in court as an adult. Would you also argue that it's the bullied kids fault for not standing up to his bully, and that because of his passiveness he deserves it?

You seem to be misunderstanding what bullying is. Bullying is act targeting someone who can't defend themselves, or is otherwise in lesser position. Bullies don't really need anything to justify their actions. They can come up with something imaginary and use it. While victim has no voice or is otherwise in position where their sayings are not valued enough.

 

This case is not about bullying. Not even trolling. The company suing was not targeting someone because they were in weaker position. They were targeted because they put themselves up to being target. A bulky would in this case be someone with no affiliation to trademarks original holder. Who just got that from somewhere and decided to make money with suing anyone who might have used it.

[JZStudios]

On 11/12/2021 at 12:08 AM, Spotty said:

The fact this person has a youtube channel is irrelevant to this case. They are not targeting or bullying small youtubers, and they most likely don't know or care that he has a youtube channel. They are a clothing company who are targeting people selling clothing online who they believe are infringing on their logo. It appears the court system has already sided with the clothing company that he was indeed infringing on their IP.

 

 

The logo used by the youtuber for the clothes he was selling online

 

The logo from the Danish clothing company which is trademarked and protected

 

 

The claimant demonstrated to the court's satisfaction [...] that; (and I'm going to paraphrase a bit here to save going through a lengthy legal document)

• The claimant's chevron logo is fully protected by trade mark law [...]
• The claimant makes use of the trade mark [...]
• The defendant [...] sold and distributed articles of clothing in the European Union [bearing that protected logo] [...]
• The defendant refused to sign the cease and desist notice to acknowledge and agree to the notice [...]
• The German court has jurisdiction to rule over the matter [...]
• and that the claimant is entitled to relief from the defendant

The court ruling also goes on to say that there is a likelihood of confusion between the goods offered (they were both items of clothing) and the design was "highly similar" to the trademarked logo, which had been in use by the claimant for many years.

 

250,000 Euro seems excessive to me, but because the value of proceedings exceed 200 Euro he can appeal it.

 

It also probably doesn't help his case that he admits in the video that he made the design for the T shirt because he wanted to copy a design used by a bicycle company and have it on a shirt. "I just wanted a T shirt with the Kickr logo". May as well just use the defence of "I didn't steal their logo, I stole someone else's!"

Reading the email he sent to the legal company after their cease and desist it is basically "STOP BULLYING ME!!! I don't even know who you are so go away". He's also arguing that they have no right to sue him because the only course of action they have is through RedBubble's review system which they didn't follow. He seems to be under the impression that because he sold the items on RedBubble that excuses him from any legal responsibility or that the company suing him is unable to take the matter to court.

 

I really hope this guy hires a lawyer to dispute the decision or the value awarded on his behalf because it is obvious he has no idea what he's doing. With proper legal representation and counsel he could very likely get the penalty dropped to the actual damages caused, which could be argued to be the total value of the items sold (6 shirts, so probably only a few hundred Euro at most). Might even be able to appeal the original ruling.

 

 

But hey, most people are just going to read "small youtuber bullied by big company" and jump on the bandwagon without actually looking at it.

It is kind of stupid that such simple shapes can be trademarked and copyrighted though. Pretty sure Sony has TMs for their button logos, which are literally a plus, a circle, a square, and an equilateral triangle. In terms of laws as is, maybe. He could argue he has 6 chevrons, they have 8, and they're pointed in the opposite direction. So then the question comes down to whether or not they own the trademark on anything with a basic chevron, regardless of number and orientation. If he only had one chevron , would it still infringe? How about 2? Just seems like there should be limits on these things when they're basic primitive shapes.

[wanderingfool2]

10 hours ago, JZStudios said:

It is kind of stupid that such simple shapes can be trademarked and copyrighted though. Pretty sure Sony has TMs for their button logos, which are literally a plus, a circle, a square, and an equilateral triangle. In terms of laws as is, maybe. He could argue he has 6 chevrons, they have 8, and they're pointed in the opposite direction. So then the question comes down to whether or not they own the trademark on anything with a basic chevron, regardless of number and orientation. If he only had one chevron , would it still infringe? How about 2? Just seems like there should be limits on these things when they're basic primitive shapes.

Trademarks are a bit funny in that it kind of comes down to the question, could consumers mistake the two items.  I honestly don't have an issue with basic shapes/symbols as trademarks...it's really not too hard to navigate around them (at least in my experience).

 

12 hours ago, genisboy said:

You have people that just coil up and hope it stops by itself when being attacked/bullied, instead of fighting back.  It is not smart but it certainly is not that uncommon. Most victims of bullying respond in that passive way. In school as a kid or in court as an adult. Would you also argue that it's the bullied kids fault for not standing up to his bully, and that because of his passiveness he deserves it?

That is no where close to what is happening.  A better scenario would be like the following:

- A teacher trips over your backpack you left in the middle of the isle

- You "correct" the action by moving your pack under your desk

- The teacher demands an apology and will give you detention or giving you the option of the harsher penalty if you don't apologize by going to the principles office for punishment (for a suspension)

- You respond by saying, "I moved my pack, so it won't happen again, but you should watch where you were going so I am not going to detention"

- Teacher sends you to the principles office

- You decide to just stay in class instead of going to the office.

- You get expelled.

[wall03]

r/nottheonion

[wanderingfool2]

13 hours ago, genisboy said:

No, no, no, thats a perverse way of describing it.

 

It's more like this

-Kid put his backpack in a spot anyone could have thought would be fine to put it there. There were already other kids putting their backpacks on the same spot.

-Then comes the troll teacher and trips over it.

-The kid immediatly corrects his "mistake" by deleting his backpack entirely!

-The teacher then demands that the kid pay him 3k cuz he sprained his vagina muscle

-The kid refuses as he feels wronged. 

-Butthurt teach throws a tantrum.

My analogy fits a whole lot better.  Trademarks exist to prevent recognizable brands from being counterfeited.  He sold internationally, if you sell internationally you better well do at least a little bit of research.  He also admitted to using a pattern "he saw everywhere"...if you see something everywhere, you better well think that someone might have some rights to it.  The fact is, he literally had the option originally to hire a lawyer to do a trademark search...he could have even asked his followers, and someone from Germany would have likely said that it looks like the Hummel brand.  Like literally here, the cost for a business license is less than what he would have paid a trademark lawyer to do a trademark search.

 

It is his own fault, and when faced with a pretty small fee (yes 3k is pretty small when it comes to creating a business), he took the absolute worst approach to it; that anyone who even took a first year business 101 course could tell you was the most stupid approach possible.

 

13 hours ago, genisboy said:

dude keeps appealing all the way to the supreme court as he has the choice of either bankruptcy or keep appealing in court meanwhile adding a ton of legal fees to the company that sued him. 

He literally isn't representing himself in the courts, and trademark disputes they can seek lawyers fees.  So he would be building himself an even larger financial hole.

 

[Spotty]

8 minutes ago, genisboy said:

You don't get it. You don't care about any additional fees or costs as your plan is to file for bankruptcy anyway. That's why you keep appealing all the way to supreme court.

That's a terrible plan. When you file for bankruptcy your debts don't magically vanish. Any assets you have are sold off to pay those debts, including your house and car. Money you earn can also be deducted from to pay off any debts you had when you declared bankruptcy. It also affects your ability to run a business.

This is relevant for Australia, where the guy from the video lives: https://www.afsa.gov.au/insolvency/cant-pay-my-debts/consequences-bankruptcy

 

You don't declare bankruptcy just to troll someone in court.

[Spotty]

12 minutes ago, genisboy said:

I know. You use up your assets before the final supreme court ruling.

How do you "use up" your family home?

 

12 minutes ago, genisboy said:

This infinitely better than paying 250k to someone you feel doesn't deserve it. Ofcourse if hes rich he can pay up, but if hes your average joe bankruptcy is better. It takes decades to save up 250k!! 

Or he could do what he should have done in the first place and hire a lawyer to represent him and appeal.

[Spotty]

Just now, genisboy said:

1.you sell it

But if you sell it you get money... Which is then taken when you declare bankruptcy.

 

You can't shift assets before declaring bankruptcy anyway. The trustee (assigned to manage your finances and pay off your debts when you declare bankruptcy) is able to "claw back" any assets you disposed of for a few years prior to declaring bankruptcy. If you sell your house to your cousin for $1 to avoid it being taken when you declare bankruptcy they can reclaim the house then sell it to pay off your debt.

 

https://www.afsa.gov.au/insolvency/cant-pay-my-debts/what-happens-my-house

Quote

Your trustee can investigate assets that you owned previously, including houses that you sold prior to your bankruptcy. The trustee may be able to reverse the sale, recover proceeds and sell the house for a fair market price.

Situations where this may apply:

• You gave away a house for little or no money (including to a spouse).
• You sold it for less than it was worth.
• You sold the house and gave the proceeds to somebody else (other than your creditor).

[LogicalDrm]

1 hour ago, genisboy said:

What do you care if after you sold your home, got the money, used it up, and after like 5 years you file for bankruptcy? If they want to take the house from the new owner let them not your problem.

 

What you mention is if you desperately want to keep the house for some emotional reason. You don't do that...

We have went from "this guy is sad whimp, please help him" arguments to "let's plan to commit financial crimes" (which purposefully filing bankruptcy is). With filling of "let's make as ridiculous arguments as possible to make logical people feel guilty".

 

As side note. We have licensed version of Dancing with the Stars here. Last night's show they were using characters from notable children's franchise. The characters are quite iconic with style and colors in clothing and hair. The company handling licensing of those characters informed that they weren't asked permission for the use of the characters. Just like some arguments made here, the shows producer claimed that design chosen was only "inspired by" the known characters and that the show isn't commercial production.

 

Of those arguments, latter is BS. Former could be accepted if there was significant difference in design (which there wasn't).

[YoungBlade]

I don't know if Germany's trademark laws are fundamentally different, but trademark law in the US basically forces the trademark holder to be a bully about it. If it is discovered that you knew about a potential violation of your trademark, and didn't seek to defend it, then you lose it.

 

My point is that this company may have had no choice but to sue this YouTuber for this amount, lest they lose the trademark altogether.

 

Copyright law is much nicer, because a copyright holder can choose to selectively enforce it, or not even enforce it at all, yet will hold the copyright until expiration regardless. But with a trademark, whether its a business rival or a random Etsy store, you have to defend it no matter what.

[wanderingfool2]

7 hours ago, genisboy said:

No your analogy is stupid

There is no need to call me stupid, especially when you don't seem to grasp just how idiotic this guy was when conducting a business.  Also my analogy is better, it isn't my fault that you don't understand that he has committed a civil infringement and through bad decision making and going against what any even novice business person would do (i.e. asking a lawyer when receiving a legal demand letter).

 

I mean all we have to do is look at his comment he made in his YouTube comment.

Quote

Their CEO is now aware of this 'case'. I'm hoping they can see the stupidity of this and shut it all down. I haven't disputed anything. I honoured their request immediately. Except the part of covering their costs. Having to pay a lawyer to defend common sense is nuts. Oh well... at least this is all seperate from YouTube. And I've since closed my RedBubble account anyway.

He committed trademark infringement and is arguing that he shouldn't have to cover costs.  Under that logic they would never have real recourse against counterfeiters.  At this stage, he dug his own grave and I honestly don't have any sympathy for him.  At my work, when we were going to potentially violate copyright (the licensing was free, but there were enough terms to make it slightly sketchy), we decided to roll the dice and see what happens knowing full well that we could be liable.  He rolled the dice and lost, he should face the consequences instead of doing the "poor me".  I'm sure he wouldn't be having the same mentality if someone created a clone of his software.

 

7 hours ago, genisboy said:

You don't get it. You don't care about any additional fees or costs as your plan is to file for bankruptcy anyway. That's why you keep appealing all the way to supreme court.

You don't get it.  The courts look at the situations, and if someone is intentionally gaming the system they could very well make it a lot worse.  You are also forgetting, to appeal you need to show that there was some error in judgement (by the judge).  Ignoring legal warning letters and claiming the cost is too high after the judgement (without defending yourself in court) will not win you any sympathy points and likely will have your appeal denied.  Also, he has more to lose in that they can pursue everything he really owns (including his business)...he can't hide away the money/assets either as if he did they could claw it back (or hold him criminally responsible).  Like what you are saying I seriously think could violate laws that he would have to pay for.

 

 

Yes people are running with the big guy punishing, but that doesn't excuse his idiocy that he has presented and I quite frankly think he deserves punishment..given he literally doesn't want to "cover their costs".  That's not how the world works.

[LogicalDrm]

27 minutes ago, genisboy said:

It's not a crime. Declaring bankruptcy is a viable strategy. even Trump did it.

On 11/12/2021 at 7:51 PM, genisboy said:

Exactly. A big company would just pay the 3k no questions asked. Your average joe will try to fight a 3k fine because to him it's alot of money and  in the process risk a 250k fine.

I think we are done here. You have started to argue against yourself.

 

[wanderingfool2]

6 minutes ago, genisboy said:

It's not a crime. Declaring bankruptcy is a viable strategy. even Trump did it.

It might be a crime to pursue legal actions with the intent to cost the other party more money with the knowledge you will lose and be unable to pay.  Also, it's definitely a crime to sell your assets (and try utilizing the money) before going bankrupt

 

10 minutes ago, genisboy said:

I believe your argument is based on too many assumptions. Saying his appeal wouldn't be granted just because he didn't show up is one of them.

Not showing up to court is a huge one.  He can't claim he wasn't served, as he has literally shown it on youtube, and the law to overturn a default judgement (with a failure to appear), you need

Quote

The party asking the Judge to vacate or cancel the default judgment must show "good cause" meaning a very good reason for vacating the default judgment.

That's a quote from the state of Indiana.  I'd imagine Germany will have similar provisions in terms of it.

 

14 minutes ago, genisboy said:

I don't know how old you are but, do you have any idea how hard it is  for your average person to work off  a 250k debt? Many people are struggling a lifetime with a student loan of half that amount. This sentence is almost the same as being sentenced to a life in slavery. No one deserves slavery.

I'm in my 30's, and the answer is yes I would be able to work off a 250k debt as of this moment, but I wouldn't be idiotic enough to let the civil case reach 250k.  They literally were asking him for costs, and he refused (you have to keep in mind they would have had someone who had to find it, write the legal communication to find who he is, file the claims, and write another legal warning letter).  He also is selling software at over $100 a year pricing...so I'm assuming he is making a decent amount.

Here is a list of things he literally did wrong, try justifying the actions:

1) Copy a brand design and think it would be okay (yes he copied it from a different company, but it's still copying)

2) Thinking not to run a trademark and copyright search.  (Guess what I decided to search "chevron trademark apparel" and guess what, it's an article regarding Hummel and how they have the trademark on it as my top result).  Literally less than 1 minute of googling

3) Not settling at a pretty reasonable request for lawyers fees

4) Admitting you did all of the above and ignoring a court case against you

 

 

While this publicity tactic worked in them dropping things (although maybe they offered him the same deal), I think what he has done is a slap in the face in terms of being responsible for your own actions.

[rockyroller]

On 11/12/2021 at 3:18 PM, tkitch said:

I wonder if they've sued the makers of F-Zero?

 

CHACHING! 

 

If the driver was wearing a suit with that design then out comes the IP lawyers just like they did for look alike vehicles in old games and new. Some of which you might think would be in the public domain just because they are commonly seen every day and you aren't making the actual vehicle just a 3d image/picture. But as you are making money even from the common that someone legally made sure you couldn't ....

[fldujit]

Turns out they dropped the case. I think the lesson learned for me here is to verify my assumptions. And consult with a professional if need arises because law are very complicated.

 

[LogicalDrm]

3 hours ago, fldujit said:

Turns out they dropped the case. I think the lesson learned for me here is to verify my assumptions. And consult with a professional if need arises because law are very complicated.

 

Do we know how much he paid them in the end? If he didn't pay anything, getting that letter kinda proves that as long as you cry and stomp your foot like a baby, you can get away with anything.

[fldujit]

I don't believe he disclosed exactly how it ended