Received a cease and desist letter for my small business. What should I do?
I run a small internet store and I sell little phone charms depicting my own artwork of members from different bands. I received this letter today and it was sent by Bravado Merchandising Services, Inc. I use the band names (admittedly trademarked) in the title of the product, which I don't mind changing if that is what they are upset about. But the cease and desist letter said this:
"Demand is hereby made that you immediately cease and desist all distribution and/or advertising of the aforesaid infringing merchandise. In addition, further demand is made that you forward to me the following:
(a) All of your present inventory of the aforesaid infringing merchandise and advertising and promotional material relating to the said merchandise;
(b) A written statement of the total number of units of such merchandise you have sold to date and the total dollar amount you have received from such sales; and
(c) A complete and accurate list of the names and addresses of all parties that have supplied you with and to whom you have sold said merchandise and all documents relating thereto."
Do they have the right to all of that information? Plus, the name of the band (in this case, Avenged Sevenfold) is used simply in the title of the product and the listing as well as the band member's name. It is not printed anywhere on the product itself, only the artwork of each respective member. I'm a little bit hesitant about handing out this information and shutting down my store, especially because this Bravado group (as far as I know) is simply a merchandising service.
Are my charms really infringed merchandise? And what should I do about this? I'm not too savvy on copyright laws, so I want to get as many opinions as I can before I take action. I don't want to get dragged into court, but I don't feel that what they are asking me is fair at all.
- graponmytiredLv 57 years agoFavorite Answer
The band will have trademarked their name in matters involving music merchandising, and you are violating their trademark in that matter.
The cease and desist letter is a request, before a possible filing of suit to come. They are attempting to get you to stop any infringing behavior, and to catalogue how much infringement there was so they can decide whether a suit is at all justified. You are not required by law to follow the terms of a cease and desist request, as they do not have the power of law. You risk a lawsuit by not at least contacting them and working out a solution with the firm, assuming they actually hold the trademark or license to the trademark.
- Mr PlacidLv 77 years ago
You definitely cannot use the band's trademarked names in most instances.
You also cannot use the literal likeness of the individual band members.
However, it would likely be permissible if you used the likeness of the band members, BUT added a significant amount of your own creative expression, such that the final result is your own artistic product that only tangentally depicts the band members. (Note that even if you do this, you can still expect to be sued. It's just that the more creative and transformative your final product is, the more likely it is that you will win.)
Tiger Woods once sued an artist who depicted Woods in a painting. The court said that the painting was protected by the First Amendment, because the artist added a significant amount of artistic expression to the painting, independent of the depiction of Tiger. (Do a Google image search of "Rick Rush The Masters of Augusta" to see what the painting in question looks like.)
I should add that unless you expect your artwork to generate a few million dollars, it's likely not worth the fight. Talk to a lawyer.
- TrekkerScoutLv 77 years ago
The name of the band may not be the only issue. If you are using images of the band members (even images of your own creation), you are likely infringing on the band's trademark to their likenesses. You should immediately halt the production and sales of the infringing merchandise. However, you should not provide any of the other information without a court order or the approval of your attorney. If you do not have an attorney, you need to get one that is versed in trademarks and copyright right away.