Trademark Question:Cease and Desist Order

[JonDuke]

Trivia question for the law pros here:

A graphic designer is making and selling promotional flyers.
Each flyer was made with logos and pictures given by individual buyers, and the cost for designing the flyer was simply to throw everything together into a flyer (not to supply the copyrighted logos and pics)

Are you allowed to charge for said services as long as you yourself are not supplying the copy written logos and instead are simply putting the images all together?

Or should the cease and desist email the seller gets be enough to stop making the flyers right away?

So, lets say the designer owned a website called CalgaryStampedeGraphics dot whatever. She designed various promotional posters for stampede breakfasts around the city using stampede logos that were given by each buyer. The cost was just to put the flyer together. Not for the logos.
Is that wrong?
Is having CalgaryStampede in the domain name wrong as well?

[wookster]

Question...does this graphic designer have an actual registered company/corporation? I think the domain name would be ok if that was the actual name of their registered company (ie: Calgary Stampede Graphics Inc.) but if it isn't then I would think there would be issues as I think "Calgary Stampede" is a trademark as well.

Also, Im pretty sure you can't use a copyrighted logo without permission of the owner of the logo, expecially if you are profiting from said logo.

[morgin]

http://www.lawsocietyalberta.com/pub...ralService.cfm

Anyone in a position to give you actual advice on here likely won't (and shouldn't). Use this instead.

[Regular_John]

I've read your post like 5 times now and I still can't figure out what you/your "friend" did and are trying to weasel out of now.

But I'm gonna offer a few pieces of advice:
1) Do not talk about legal proceedings in a public forum
2) See number one
3) You(r friend) should have used a contract that contained something like this:
"Customer is responsible for any Copyright or Trademark issues related to the creation and use of Project files by Customer. Customer shall be solely responsible for any Trademark or Copyright searches pertaining to the Project unless otherwise contracted for in the Specifications. Designers will not knowingly copy other rightfully trademarked or copyrighted material."

[JonDuke]

Originally Posted by jaydorn

I've read your post like 5 times now and I still can't figure out what you/your "friend" did and are trying to weasel out of now.

But I'm gonna offer a few pieces of advice:
1) Do not talk about legal proceedings in a public forum
2) See number one
3) You(r friend) should have used a contract that contained something like this:
"Customer is responsible for any Copyright or Trademark issues related to the creation and use of Project files by Customer. Customer shall be solely responsible for any Trademark or Copyright searches pertaining to the Project unless otherwise contracted for in the Specifications. Designers will not knowingly copy other rightfully trademarked or copyrighted material."

I would never post my own legal questions online. Not if it directly involved me. I just came here to ask knowing from previous threads that there are a few legal buffs and just decided to see what I could find out from the CP braintrust.

She made promotional posters for people. Used the copy written logo of a company that her flyer customers work for. She just used the images provided to her, and threw it all together and made it into a more attractive design than what many other people were making. The company contacted her and said...

It has come to our attention that you are selling products and services via your website while using **our** trademarks, logos and/or copyright material.
**We** are the sole owner of its Trademark and any copyrighted material; we are not aware of having authorized use of this information to any third parties. **we** demand that you cease and desist from any further unauthorized use of our logos and/or copyrighted material. Please remove any content using the **our** name, logos, or otherwise from your website and anywhere else you may have these services offered on the internet immediately. **we** will pursuit legal action to protect our interests if there is any further use, reproduction, sale or distribution of our proprietary information.

She panicked, but I am wondering if she even did anything wrong because she never provided any images for the flyers, and instead just threw it all together.

[photon]

I'm not sure if it's clear enough.

So what you're saying happened is photon from Calgarypuck gave her Calgarypuck logos to make some posters for photon with the Calgarypuck logo on them.

Then Bingo from Calgarypuck contacted her threatening legal action for using Calgarypuck logos??

Is that the story? Doesn't seem right, something else is going on, otherwise she should have told Bingo to just talk to photon.

EDIT: Either way someone working with copyrighted images all the time would presumably have indemnification clauses in their contracts so that if they do something that to the best of their ability they thought was within copyright but wasn't they were protected.

[Ducay]

Ya, OP's verbage is quite confusing in both post as to what the situation really is.

The way I read it is:

Designer Inc. made a flyer for HamburgerShop Inc. which used trademarked logos from McDonalds Inc.
McDonalds then sends C&D letter to Designer Inc. even though they were just making HamburgerShop's flyer prettier, as client asked.

[Regular_John]

Originally Posted by JonDuke

I would never post my own legal questions online. Not if it directly involved me. I just came here to ask knowing from previous threads that there are a few legal buffs and just decided to see what I could find out from the CP braintrust.

She made promotional posters for people. Used the copy written logo of a company that her flyer customers work for. She just used the images provided to her, and threw it all together and made it into a more attractive design than what many other people were making. The company contacted her and said...

It has come to our attention that you are selling products and services via your website while using **our** trademarks, logos and/or copyright material.
**We** are the sole owner of its Trademark and any copyrighted material; we are not aware of having authorized use of this information to any third parties. **we** demand that you cease and desist from any further unauthorized use of our logos and/or copyrighted material. Please remove any content using the **our** name, logos, or otherwise from your website and anywhere else you may have these services offered on the internet immediately. **we** will pursuit legal action to protect our interests if there is any further use, reproduction, sale or distribution of our proprietary information.

She panicked, but I am wondering if she even did anything wrong because she never provided any images for the flyers, and instead just threw it all together.

Assuming Photon's & Ducay's interpretation are close to what happened then no, your friend probably isn't in a lot of trouble here and her biggest mistake was operating without a contract to cover the copyright on materials provided to her.

If I were in you friends shoes I do the following
- Remove everything as requested from her site
- Respond to the Cease and Desist Order indicating that the materials have been removed, and she was operating in good faith that "Client X" had authorization to use the materials.

A Cease and Desist Order is basically that, an order to cease with the copyright infringement. Your friend should be most concerned with protecting herself and her business rather than keeping the work on her website or her relationship with Client X.

Disclaimer: I'm not a lawyer, but I have done freelance graphic design and sent out my share of Cease and Desist Orders to offshore script kiddies who ripped off my work.

[Rathji]

Seems like that person in an independent sales consultant for a direct marketing type thing.