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[Stephanie Hipkins]

What can you do in a situation when people have similar ideas?

I have a shop on a site that allows you to sell t-shirts and things with your own designs. After noticing a problem I emailed them and they told me they have "received notice from [name removed] stating that the use of the [design name removed] design infringes upon her intellectual property rights". It stated the design/site name specifically. The problem is, I am not using this woman's design, nor was it taken from her concept as I did not know hers even existed and I created mine over two and a half years ago. I don't even advertise, tout it, or call it by any name similar to hers. Her website where she sells items with her design is new this year, so I assume the design may be as well, so I likely have had mine designed and offered to the public longer.

The site that hosts my shop has made this image/file so I can not use it. Because of this, no items are displayed to the public and it is now virtually non existent. I feel I have been screwed over. I have had my design long enough, I could probably claim infringement just as well... Though I have no problem in someone having a similar design to mine, as long as they aren't actually using mine. I don't understand why she should have the upper hand.

Though similar concepts, and BOTH inspired by another well known design (but different enough), my design is not hers and uniquely my own. And we are likely not the only people to have ever come up with this idea. I'll keep it basic, but it is a silhouetted figure. Surely she can not claim infringement on every silhouette of this type that is at all similar in design concept? Despite the concept, the two designs are still easily recognizable as different.

I have emailed my shop's host and they gave me contact information for this woman so I have also sent her a polite note explaining things and that no infringement has been intended, and my design is my own. I am not sure where to go from here... What can I do? I don't want to lose my unique concept as my own just because she may not like there being a similar concept by someone else.

I apologize if this has been long, thank you in advance for any advice.

Stephanie

[Stephanie]

P.S. I drew my design myself, made a stencil and attempted to create t-shirts of my own. Later I scanned it into the computer to create a neat and clean graphic in Photoshop. It was never traced or duplicated from another design.

I still have the scan of the drawing and other files with original dates the files were created. Could that hold up as evidence?

[Isaac]

I'm having a little problem following your story.  My understanding is that you have a t-shirt design business and were using an image of some sort as an example of your work.  

Assuming that the image is not used as a trademark, and that there is no patent involved, being first does not grant any particular rights.  Being second may be evidence of copyright infringement but only because it is impossible to copy something you have not seen.  But in any event, if you developed your image without having seen hers you did not infringe.

Of course the same argument applies to the other party.  You may not be able to sue her for infringement either.

I think a first step is to find out from your ISP under what policy they removed access to your image.  If they are not acting on a DMCA take down request, then maybe you can use your ISP's resolution procedures to resolve things.  If the other party did make a DMCA request, then there are legally required procedures to follow before your ISP will act.

The evidence you offer, file date stamps, looks awfully easy to fake.  I'd recommend registering your artwork with the Copyright Office as a method of establishing dates.   You can do so even now, but of course the validity of such dates after the fact could be challenged.  

[JSonnabend]

My guess, based on my brief review of the OP, is that the "ISP" received a take-down notice under the DMCA.  To preserve your rights, you'd have to send a counter notice within the prescribed time frame.

If you're not comfortable with reading federal statutes (like the DMCA), I suggest finding an attorney to handle this for you.  Not all attorneys charge an arm and a leg for this type of thing (I charge a flat $370 for this type of response letter, for example).

- Jeff

[Stephanie]

Thank your for the replies. Sorry if I confused at all. Basically, I've had someone try to claim to the web host of my 'shop' that I used her image when I have not. Though similar ideas, I created mine independently on my own and had never seen another like it until now. My design comes from a drawing and computer graphic I originally drew and created myself.

The concept is one that I can understand that I may not be the only person to think of it, and I have no problem with that unless someone was to take my actual design.

I don't use it as a trademark, and the trademark associated with her website appears to be the concept name, same as she calls the image, not the image itself. The name/title of my design and shop has no similarity at all. There should be no problem there, yet she called my design by her design's name when she contacted my shop host, even though it is clearly not her design.

The host of my shop has had to prevent the use of this design for the time being, just to protect their own business which is understandable.

Can she legitimately try to prevent me from using my own design just because she had a similar idea? And without even consulting me first.

Please bear with me, I don't understand a whole lot about these legal things other then the basic copyright protection. I have emailed the woman about the issue, but have not received a reply as of yet.

[JSonnabend]

Stephanie, she can claim that she has the rights to the photos and that you've infringed them, but she can't do more than that if you submit a counter notice to the "shop" under the DMCA.  Emailing the other party is useless.  

Beyond that, all the question-and-answer sessions in the world won't help you a wit.  

If you're serious about handling this matter, I suggest you speak to an attorney.

- Jeff

[Rupert]

If the site is no longer selling your product than most likely they agreed
with the party's complaint made against you.  Did they research the party's
claim to see if in fact they own the copyright and trademark?  You mentioned
that this person's website was new.  Is this the website copyright notice
that you are going by?  If this is the case than you should note that it is
customary to update a website's copyright to the current year.  Therefore,
do not assume that the website or the product didn't exist before the
website's copyright notice.  You stated that your design is similar to
theirs.  Assuming that the designer's work is copyrighted and trademarked it
would make sense that the store is no longer selling your product, for they
could be held liable as well as yourself for infringement of copyright and trademark.  Therefore, be thankful that they
discontinued your product, for you could be sued for monetary damages and
that includes legal fees as well.

[Isaac]

I'm not a DMCA expert, but if the web host were responding to a properly
made out DMCA take down request, they probably would not conduct an independent investigation.
Making their own evaluation and electing not to take down the
material puts at risk the safe harbor status shielding the ISP from contributory infringement.

If there was a DMCA take down request, I'd recommend following Jeff's
advice to make the statutorily described response.  That is
assuming you intend to contest the accusation of infringement.