They have no real legal basis for stopping anyone from using copyrighted fabric to manufacture fabric items and then offering them for sale. The only time a legal basis arises is when the crafter, either intentionally or unintentionally, misrepresents the product as being a licensed product as opposed to being made from licensed fabric. The use of several disclaimers helps avoid this problem.

We're going to go over the terms in the threats and explain them and why the don't apply. Bear in mind, we are not lawyers nor have we attended law school, so our opinions here should not be construed as legal advice but more along the lines of what we have learned over the last years fighting these companies while representing ourselves many times in federal court.

Typically, they begin with a "Cease and Desist" letter in which they make their case. These letters are intended to intimidate the receiver into compliance. Your average lawyer will look at the letter and tell you to comply. Why? Because the cost of fighting them can run to $30,000 and up and there is no guarantee that you will recover legal expenses. Small home-based businesses cannot afford this sort of financial outlay, so, they cave.

In some cases, the company claims that the fabric item is a "derivative" and therefore violates the copyright held by the company. Numerous federal court decisions refute this as well as the federal court standard for determining if something is in fact a derivative.

Another approach is for the company to claim the use of the fabric in this manner is "unauthorized" and therefore a violation of the trademark. This falls short because the Lanham Act uses the word "authorized" in conjunction with counterfeit trademarks and/or products. They are attempting to use the term out of context.

Most cases will revolve around either the derivative issue, or copyright violations, or the "unauthorized" issue, or trademark violations. The other terms that are thrown in are done so to make the case look far more complicated and more serious. Dilution, unfair competition, likelihood of confusion, infringing merchandise, are often used. However for these to be relevant, there first has to be a copyright violation or trademark infringement.

You can protect yourself. Make sure you include the wording "hand-crafted" or something similar in your description. Refer to the items as being made from XYZ fabric. We are now including a disclaimer, "This item is not a licensed XYZ product. It is however, made from licensed XYZ fabric. Tabberone is not affiliated with XYZ in any manner." Their lawyers will argue that this disclaimer is not adequate and does not protect you. However, remember that should the conflict go into court, it is not their lawyers who will determine what is adequate. The courts use the "reasonable person" rule. How would a reasonable person interpret this disclaimer? Would a reasonable person be confused?

Additionally, you are permitted under trademark law fair use of a company's trademark when selling and item made by them, or in the cases here, items made from their fabric. This means you have a right to a reasonable use of pictures of the item even if those pictures include copyrighted images. However, you cannot use images or pictures not directly related to what you are offering. Example: you cannot use an image of Mickey Mouse to sell a pillow that has Tinker Bell on it. You can use pictures of the actual pillow.

Chilling Effects has some good FAQ's and advice about cease & desist letters.

Don't Post This Cease And Desist Letter Or Else.shtml , by Greg Beck, October 5, 2007.

Cease & Desist Letters Received By Tabberone
Keep 'em coming folks, we read them all.

• From George Rikos, Esq,, of San Diego, CA, representing De Novo Legal, LLP (Cyber Cops), member of the Tabberone Hall Of Shame, and Pollie Gautsch, whom we call a bottom-feeder, received on March 28, 2008.
• Our Response to George Rikos, Esq,, on March 31, 2008.
• From Andrea & Brandon Poole, USN,, of San Diegp, CA, representing themselves and their web-based business, AdorableDecor/TinyTotsNTeens, member of the Tabberone Hall Of Shame, received on November 02, 2007.