Licensed or not licensed that is the question...

So last night I go into my email and I find this:


Please see the attached letter and advise if you can provide any information to verify your claims that the products you are selling are licensed. If they are indeed licensed, let's please try to resolve this amicably with calm heads.

Additionally, please do not send multiple e-mails to my inbox if you want me to actually see your messages. Your address was flagged as a spammer by the company spam filter and almost all of your messages were automatically sent to my spam inbox which I only just discovered.


Thank you and kind regards,

Gregory Pan
Marvel Legal Affairs

Attached Letter:


Gregory Pan
Legal and Business Affairs
Marvel Entertainment, Inc.
417 Fifth Avenue ♦ New York, NY 10016
Fax: (212) 576-8569
gpan@marvel.com
{00073635 GP}
VIA EMAIL
October 21, 2009
Attention:
Re: Sale of Unlicensed Product on Etsy.com
Dear Ms. Russell:
I write regarding your allegations that Marvel Entertainment, Inc. (“Marvel”) has violated
your rights to sell products on Etsy.com. While you have made numerous claims that
Marvel has violated your right of first sale, you have yet to convincingly prove that the
product that you are selling was in fact a licensed product. The image of your item on
Etsy.com did not show a clear image of any product licensed by Marvel and was
therefore determined to be counterfeit.
Please provide either 1) a sales receipt for the licensed product; and/or 2) a clearer, high
resolution image of the product so that we can make a better determination that it is in
fact licensed. If possible, please provide an image of any tags or product identification so
that we know the item in question is an authorized licensed product.
If you can provide the above information to prove that the product was indeed licensed
by Marvel, Marvel will contact Etsy.com and retract any claims made against your
product.
Marvel reserves the right to take whatever remedies are available to it at law and in
equity, and shall do whatever best protects its interests. Nothing in this letter shall be
construed as a waiver or relinquishment of any rights or remedies available to Marvel.
Very truly yours,
Gregory Pan

Here is my first "issue" with this email:

I have NEVER claimed that the items I am selling are licensed. I also had a disclaimer in all of my fabric made listings that stated that I was not affiliated with the fabric companies and that nothing was endorsed by anyone.

#2 I am asked not to send multiple emails because I was flagged as a spammer, BUT it seems that the first 250 emails in 4 hours got through just fine since I slipped one in on him asking if I should continue with my emails or was he going to answer me and he answered me almost immediately. So I emailed him back and said "I sent multiple emails because while you were quick to terminate my listings you took your time even replying to me. And now that you have I can see that no one read anything I sent.

I never stated it was a licensed product. I stated it was made with licensed fabric. I assure you this was licensed fabric and if Marvel doesn't know what they have released into the market place then shame on you.

I provided a federal court ruling stating that the use of licensed fabric was permitted. Please read the court case. Please read my emails. Please provide a response that addresses the issues and federal court ruling and federal doctrines that I address in my emails.

Once again for your reading pleasure is a copy of the email I sent to you before. (I attached the original again)

Now on to the letter issues:

Again, I have NEVER claimed my products were licensed and yes he has violated my right to sell my products.

#2 The picture of the item being disputed and that was posted on Etsy.com was blurry, so he said "The image of your item on Etsy.com did not show a clear image of any product licensed by Marvel and therefore determined to be counterfeit."

Obviously he still isn't reading my emails or he would already know that I told him the fabric was purchased years ago, do you really think I kept the receipt? How is a high resolution picture going to tell them if it is in fact a licensed fabric or not? I, like I'm sure all or most crafters, also cut the selvage ends off of the fabric as they are unuseable.

I have also emailed him about 50 times asking to see these laws and equities he speaks of as well as the interests he is "protecting" and again I get no answers. Oh, I'm sorry they all went into a spam folder over a week ago!

This morning I received this one:

Thank you for responding.

Can you please provide a clear image of the fabric? I cannot determine if the close up image you have on your listing is of a blurry image or of poorly made fabric similar to counterfeit fabric that I have also seen. The design is not similar to what we have been licensing recently, either.

Marvel's licensed fabric has a high level of quality as well as legal lines on the product and I could not see that in the image you had. If you cannot provide a clear image to prove that the fabric was licensed, then I cannot just take your word that it was licensed fabric.

Additionally, can you please provide support that the Precious Moments case you are citing is supported in your jurisdiction?

Regards,

Gregory Pan

My response to him:

Mr. Pan,

The Precious Moments case does not have to be in my jurisdiction (you should already know that), and the First Sale and Fair Use are Federal doctrines supported countrywide.

As I stated to you before in my many emails, this fabric was purchased many years ago. It was most likely purchased at one of the following stores: Wal Mart, JoAnn Fabric, Hancock Fabrics or Hobby Lobby. I do however know that it was manufactured by Spring Industries and Licensed by Marvel. Again shame on you for not knowing this information.

I am still in the process of going through my many boxes of fabric to locate this particular one for the selvage end. But I am sure like most crafters the selvage end was more than likely cut off and discarded.

You will find 2 pictures of MY product attached to this email. The first picture you referred to was blurry, NOT counterfeit material. I can buy fabric at Wal Mart for $4.00 a yard, why would I need to counterfeit it?

Now we wait for the response...


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