How time flies........

Wow!! I did not realize it has been over a year since I have blogged about anything. I guess I figured Facebook had it all covered. LOL
Well, I am still on Artfire with my wares and I also went back to selling Tupperware as well. I has been a very eventful year as usual.
I think I am beginning to dislike the Fall season, not because I know it's going to get cold, but because it always seems to bring trouble out for me.
Yep, you guessed it, another large company has decided that they would like to take my money and run.......and that they did.
Which company this time you ask? The Hartford. They are an insurance company out of Connecticut. I had our car and renters insurance through them until October when I found they had been stealing from me for 3 months and then some.
At the end of September hubby's car broke down on his way to work. I called for the Roadside Assistance and was told that I had none. So at 5 in the morning, I had to find $71.00 to pay to get him towed home. Later I go searching and lo and behold I DO have Roadside Assistance!! What's the problem then, you ask? Well, according to The Hartford I did not have it as they seemed to have changed their Roadside Assistance Policy and never notified anyone.....including the people that sell policies for them. So now they say that "towing & labor" is separate from "roadside assistance". I talked to people at Answer Financial (they sell policies for The Hartford) and no one there knew that the policy had changed. So now I am fighting to get my $71.00 back for the tow. On top of that, I cancelled my policy with them when I realized that they stole $300.00 from me as they more than doubled my car insurance premiums and didn't bother to notify me of that either. They used an almost 3 year old ticket as their excuse to raise rates. A ticket they were told about a year before when the policy was taken out.
Now I get my refund checks in the mail from them and I'm like, this can't be right. I get back on the phone to see why I was shorted almost $30.00 on my refund and get a HUGE runaround about so many days of this that and the other. I said this is NOT Pro Rata, this is Short Sale. They claim it is not and send me their breakdown in the mail. It still doesn't make it Pro Rata because they mailed it to me on paper. See, Pro Rata's definition is this: Insurance cancellation method
Calculation of return premium of a cancelled insurance policy is often done using a cancellation method call pro rata. First a return premium factor is calculated by taking the number of day remaining in the policy period divided by the number of total days of the policy. This factor is then multiplied by the policy premium to arrive at the return premium. Traditionally this has been done manually using an paper wheel calculator. Today it is normally done using an online wheel calculator.
What does The Hartford consider Pro Rata to be? They say Pro-Rate means "I was only charged for coverage provided from my policy renewal date through the date I cancelled". They did NOT take the number of days remaining on my policy (15 to be exact) and refund the premiums for the 15 days, but gave a bunch of hooey about the entire policy life of 6 months which was paid monthly and I had coverage for 80 days and they subtracted that from payments that were made and added service fees too. Arriving at a figure that is $30.00 less than what I should have gotten. Oh, and there was also a $1.40 difference in their total and the check they cut to me, in their favor of course "due to rounding".
How did I not know they jacked my premiums? Well, I would go in and check my checking account (they automatically withdrew) and I would see that they had gotten their money and would move on. I didn't catch the "jack up" until the third month when the amount jumped off the page at me. July and August didn't jump out for some reason. I just saw their name, knew the bill was paid and moved on. I figured I was short on money because I was catching other bills up. Now I KNOW why I was so short on funds.
Answer Financial is who I went through to get this insurance (through a friend) and they are supposed to be helping me get this all straightened out. I also filed a complaint with the Ohio Insurance Commission as well and they are supposed to be looking into it too.
From my figures, they owe me around $700.00. They also have to pay the labor for the car being fixed.
Stay away from The Hartford...............be afraid, be very afraid!!!

Thank you!!

I would like to take this opportunity to thank my "cheerleaders" for helping me through this whole ordeal with Marvel and Etsy.
My wonderful husband who listened and was always there for me, my awesome Mom who put up with just as much crap as my husband, Karen & Mike aka Tabberone and their awesome awesome website, patience and persistence. I also thank everyone else that was behind me in this as well, (there are so many to name). My dear friends Christie & Lisa you guys are the best!! Barbara, I am not forgetting you either as you have been there from day one and you are an awesome cheerleader!! (Just no splits please) LOL I am glad to have you all on my "team". Oh!! I also want to thank my "Dad" (a former police officer) and Doug for everything they have done to help as well. And Tanya, you're up there too!! (No splits from you either)LOL
I am also going to take the time and thank Mr. Gregory Pan at Marvel Entertainment, Inc. for taking the time to see this through as well. I know we got off on the wrong foot, but I am glad that justice has prevailed. Thank you.
I thank everyone for the comments, IM's, emails, etc... on the "victory".

Ok, change of subject...Please say a prayer for a few of my friends, 1 has been VERY sick these past few days, 1 is having surgery on Friday and is very scared and 1 is having a time starting a new life. They are all very dear to me and they all need some prayers. Thank you & God Bless!!

I WON!!! I WON I WON!!!!!!!!

This evening I received this in my inbox!!

Dear Ms. Russell,

Thank you for the higher resolution images, they were much clearer than what I saw earlier and it does not look like counterfeit fabric. I really sincerely appreciate you taking the effort to do this because this was the only point I was not certain of. While you may not believe it, counterfeit fabric from factories selling counterfeit apparel and other fabric goods are a problem and we try our best to take appropriate action when we see it. The fake material I see usually follows the patterns of popular styles at the time it was made, and after some time it becomes an older style than what is currently sold in stores. The fabric that you use from Spring Industries is about 4-5 years old and is different from what they have been selling recently. I doubt you will believe me, but I in good faith based my decision on reporting your auction because the image did not look like high quality licensed fabric that I have seen recently.

Ms. Russell, we have no interest in disrupting your business and I apologize that I did not receive many of your emails due to the spam filter. I assumed you were dealing with Etsy to file a proper counter notice since that was your concern in the last mail I received from you that you sent to Sarah at Etsy. If you are using licensed fabric, I suggest you use a clearer image and describe the item as licensed. Regardless, I wish this was handled with better communication which would have resolved this much faster and with less stress on your end.

I will write to Etsy to retract the claim immediately.

Kindest regards,

Gregory Pan

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...


http://www.hairtiesgalorenmore.artfire.com/

Standing up

Family, friends, followers and fellow crafters,
As many of you know I am a firm believer in standing up for my rights and the rights of others. For just over a month now I have been in somewhat of a battle with 2 companies that have no regard for crafters or the common people. These companies seem to only be interested in lining their own pockets at the expense of others, while some of us are just trying to make a few extra dollars to keep up with these hard economic times. In an ongoing effort to help myself and fellow crafters to be able to make some extra money without being bothered by corporate attorneys and their false claims of infringement as well as the venues that refuse to investigate, learn the law, or back their sellers, I will be filing a lawsuit seeking an injunction. Hopefully this injunction helps the many thousands of other crafters out there as well.
In order to file a lawsuit, it of course costs money, which I unfortunately do not have extra just sitting around as most people don't now days. So, I was thinking that so many people start their holiday shopping early, maybe they would like some of my handmade crafts for gifts and /or stocking stuffers, and at the same time help a good cause with their purchases. My online studio is located at http://www.hairtiesgalorenmore.artfire.com/ and can also be accessed directly from Facebook through my Artfire kiosk. Paypal is the payment method and is pretty much instant as well as secure.
Please feel free to forward this on to anyone you wish. I do NOT expect any one to buy or feel guilty for not buying, this is just a shot in the dark for me. You can't kill a crafter for trying! If it works, GREAT!! If it doesn't, then oh well we'll figure out plan B.
I have been told that I make some pretty mean and addictive Pecan turtles as well as some white chocolate macadamia nut turtles, both of which are only $10.00 a pound and would make a great gift (even for yourself)!
Thank you all for your support through all of this, it IS greatly appreciated!
If you are on Facebook, don't forget to fan me (hairtiesgalorenmore). You can also do it from over there >>>>>>>>>>>>>>>>>>>> I think?? LOL

I Just HAD to share this!!

I just had to share this with everyone, enjoy!!



Etsy & Etsy News
Hall Of Shame Members
This Page Added September 11, 2009





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Last Updated September 29, 2009

You will note that there are a lot of pundits who will tell you what you can and cannot do with patterns, licensed fabrics, embroidered images, pictures of products, and descriptions, but none can point you to specific court cases or federal law that supports their claims. Etsy is one of those web sites. Etsy joins our list of moronic and self-serving corporate attitudes all in the name of big bucks and the seller be damned. We rank them just after eBay on the stupid scale.




--------------------------------------------------------------------------------


The Etsy News makes the "claim" in its Mission that it is the "Unofficial news for Etsy's buyers and sellers" and that "UEN's editors are NOT employed by Etsy or affiliated with Etsy; we just care about the community". However, we believe that in order to use the "Etsy" name they have either official permission or implied permission, and therefore Etsy News has more than some responsibility. Also, a certain "Sarah" appears to have strong ties to Etsy from comments on the site (FYI - "Etsy" rhymes with "Besty"). These strong ties refute the presented appearance of no affiliation (or sponsorship) with Etsy.

Seems "Sarah", who appears to be one Sarah Feingold, Esq.: Attorney and Jeweler (Sarah is Etsy's in house attorney), posted what we consider inaccurate statements on "site terms" and "copyright-branding" concerning copyrights and the format appears to give these statements credibility, thereby ushering Etsy and Etsy News into the Hall of Shame. Sarah's claim, "the First Sale Doctrine does not typically apply to a product created out of the licensed character. Therefore, it is unlikely that the First Sale Doctrine will protect a product created out of a licensed character" is directly refuted by Precious Moments vs La Infantil, 971 F. Supp. 66 (D.P.R. 1997), where the federal court denied an injunction to stop La Infantil from using licensed Precious Moments fabric to make and sell bedding.
Sarah


It is alo refuted by LEE v A.R.T. Company, 125 F.3d 580 (7th Cir. 1997), where the 7th Circuit Court of Appeals stated that when A.R.T. Company, bought and then mounted the works of art sold by Lee on ceramic tiles (covering the art with transparent epoxy resin in the process), and then resold the tiles, is was not infringing upon the copyright by Lee. See also Gracen v. The Bradford Exchange, Inc., 698 F.2d 300 (7th Cir. 1983), supporting the claim that the mounting process cannot create a derivative work because the change to the work "as a whole" is not sufficiently original to support a copyright.


Sarah, did you even take trademark and copyright law in law school? Or did you sleep through those classes as well? Your statements, as Etsy's in house attorney, defy logic and comprehension.




--------------------------------------------------------------------------------


Sarah's next statement, "When you buy a copyrighted good, for example licensed beads or stickers that have a character on them, you are only buying the physical object and not any of these exclusive rights" is refuted by the Supreme Court:

"The whole point of the first sale doctrine is that once the copyright owner places a copyrighted item in the stream of commerce by selling it, he has exhausted his exclusive statutory right to control its distribution."
Justice Stevens, delivering an opinion for a unanimous Supreme Court in the case QUALITY KING DISTRIBUTORS, INC. v. L'ANZA RESEARCH INT'L, INC. (96-1470), 98 F.3d 1109, reversed.


Her next statement, "When you take a licensed character and create a product, for example a necklace or a bag, you are transforming the good, and most likely creating a Derivative Work" (emphasis added) is refuted by the Precious Moments case and by:


In order for a work to qualify as a derivative work it must be independently copyrightable. Weissmann v. Freeman, 868 F.2d 1313, 1320-21 (2d Cir.), cert. denied, 493 U.S. 883 (1989); see also L. Batlin & Son, Inc. v. Snyder, 536 F.2d 486 (2d Cir. 1976).


Sarah, do you really have any idea what a derivative work is? Perhaps Sarah could explain how taking a piece of fabric and making a bag from it qualifies the bag to be copyrightable? It isn't and never could be. A derivative requires the "transformation" of the copyrighted image into something new. The simple act of cutting and shaping fabric with a licensed image on it does not transform the copyrighted image. Sarah needs to take a close look at these two decisions from the 2nd Circuit Court of Appeals where the court states that "clothing is not copyrightable". Since the bag cannot be copyrighted, where is the infringement you claim? Since the fabric wasn't copied, or the characters on the fabric copied, there is no copyright infringement. There is no trademark infringement because you are not counterfeiting a product; you are using genuine material.


Her last statement, "For example, if I make and sell a quilt from licensed fabric, a consumer may assume that the quilt is an officially licensed product" ignores the requirement under trademark law, the Lanham Act specifically, that the seller must do something to deceive the public into believing that the quilt was manufactured by the trademark owner. This is why we suggest crafters use the Tabberone Disclaimer. Sarah, you are a moron who is spreading the false assumptions upon which many people labor. It has been our experience that far too many people on the Etsy.com web site believe you. You are doing a lot of harm.




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Etsy was originally on the Craft Sites Hall of Shame page which was added July 7, 2007. On September 11, 2009, this page was expanded, given its own page listing and the following was added:



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Etsy could, like eBay could (but does not), demand a detailed explanation of alleged infringement and examine that explanation to determine the validity. Neither the DMCA or federal law holds the IP provider accountable for refusing to remove objectionable material, it only provides a "safe harbor" for those that promptly removed allegedly infringing material. It would still be up to the rights owner to prove contributory infringement which would be very difficult if the IP provider had a reasonable doubt as to the validity of the alleged infringement. Etsy does not demand a detailed explanation of alleged infringement nor does it appear to care. The only plus we see in the Etsy cowardice is that unlike eBay, Etsy mentions the counter notice in the take down and will use it for trademark and patent claims whereas eBay does not.
Etsy has joined eBay in telling lies and fabricating information. Caving to Marvel's letters of intimidation, Etsy is terminating lawful auctions for items made from licensed fabrics sold by Marvel. Why? Because, according to Etsy, some yoyo named Gregory Pan, Contracts Manager of Marvel Entertainment, has claimed certain items are "not authorized". What a bunch of wussies.

Etsy can't give a better and more accurate description of what is meant by the comment from Gregory Pan, Contracts Manager of Marvel Entertainment, because Esty does not ask for one. Could Etsy require more detail and then could Etsy make a determination if the claim were prima facie valid? Etsy could but like eBay, Etsy is afraid of lawsuits. Etsy is more concerned about lawsuits that would not happen than protecting the rights of the Etsy sellers, who like the eBay sellers, are the primary source of revenue for the site.

And Etsy is lying about liability. In Etsy's Copyright and Intellectual Property Policy (http://www.etsy.com/copyright_policy.php), Etsy falsely asserts to the rights owner, or to the seller who might challenge the takedown,


"If you materially misrepresent that a product or activity is infringing your intellectual property, you will be liable for damages (including costs and attorneys' fees)."


According to whom? The DMCA states the requirement is that they "knowingly materially misrepresent" the facts (emphasis added). Etsy left out the word "knowingly". That is also trumped by the low standard of the DMCA for a "good faith belief" for issuing a takedown. If the rights owner has a "good faith belief" then there is no way that they can "knowingly materially misrepresent" the facts. Even in cases where the courts have found the rights owner knowingly lied, damages have not been assessed. That statement is a lie.
If the courts will not hold the rights owner liable, how many times do you think they have held the alleged infringer to be liable? First, how many rights owners have actually sued after receiving a counter notice? Very few. Why? Because most legitimate infringing activities will be stopped with a lawsuit, not with a takedown. Going after small sellers is nothing more than resume enhancement.












Rebuttals
In an effort to provide a balanced view, we make the following offer to anyone who feels they have been wrongly accused on this web site.

If you, or your company, have been referenced on these pages, and you would like the chance to post a rebuttal, we will post your rebuttal (provided it is in good taste) so others can read it. The rebuttal must be submitted in a format that can easily be converted into HTML. We reserve the right to alter the rebuttal to make it more readable. However, we will not alter the content (unless there is offensive material to be removed). We also reserve the right to comment on any rebuttal received. Emails protesting the content of this web site may be treated as rebuttals by us at our discretion.



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Links
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Definitions

Trademark Definitions
Blurring Confusion Damages Dilution History Initial Interest Confusion Likelihood Of Confusion Material Difference Standard
Parallel Imports Puffery Secondary Meaning Subsequent Confusion Trademark Abuse Unauthorized Use Unfair Competition What is a Trademark?
Copyright Definitions
Contributory Infringement Copyrightability Copyright Misuse Doctrine Derivative The Digital Millennium Copyright Act
EULA Fair Use First Sale Doctrine Product Description Registration What is a Copyright? What is not Copyrightable?
Other Issues
Embroidery Designs FAQs & Whines Image and Text Theft Licensed Fabric Licensing & Licenses Patterns Profit Quilting Selvage
Stanford School of Law Case Outline Tabberone Disclaimer Trademark Extortion Urban Myths What To Do If You Are Veroed


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Alphabetically by Circuit


Federal Statutes
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Defending Against A Federal Lawsuit
The Complaint Your Answer Denials F.R.C.P. 12(b) Motion F.R.C.P. 12(f) Motion Affidavits Time Extension



VeRO (Verified Right's Owner Program)
VeRO Commandments VeRO-Verified Rights Owners Program Counter Notice Letter
Counter Notice (pre-2003) Counter Notice present On-Line Survey from 2004 Articles about VeRO What To Do If You Are Veroed

Marvel

Well here we are almost a month later and I JUST finally (yesterday) got a response from one Gregory Pan at Marvel Entertainment. This was only after I sat for many hours emailing him non stop for hours on end.
First he tried the " Please have your attorney contact me and I will gladly speak to him or her." I then informed him that I am my attorney. Then sent another email as follows:
Mr. Pan,
"I am my attorney and if you are ready and willing to speak to an attorney then you should be ready and willing to speak to me. I want this resolved as soon as possible. I'm sure the courts are not going to like seeing how you shirk your responsibilities. You have received approximately 500 emails from me in less than a month, yet you do not respond until today when I keep sending non stop.
This needs resolved now. "
To which he responded with:
"Unless you follow the correct procedures to responding to Marvel's notice, Marvel has no obligations to respond.

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. "
My response to that was:
"I followed the procedures set forth by esty in responding to Marvel's notice. I did what I was supposed to do, you however chose to ignore all of my correspondence until today with the excuse that "Marvel has no obligation to respond."
"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."
I would like to see said laws and equity. What interests exactly are you protecting? If you read any of my hundreds of emails, you would see that you have nothing to protect.
Next email from Mr. Pan simply says "please send me the counter-notice that you sent to etsy." So, I sent him the counter notice as well as the original email from etsy (my infringement notice).
I then hear nothing from him again until I send him an email asking if I should go forward with my lawsuit. Actually he wouldn't answer that one, so I sent another that said "I will take that as a yes, it is prepared and will be filed by this weekend."
To which he responded: "Marvel reaffirms our stance that our actions were within our rights and believes that your claims do not have any merit. You should proceed as you see fit."

How after over 500 emails does he think my claims have no merit? I sent him cases and judgements. Oh, that's right he probably ignored all of those emails as well. I'm sure the courts will love how he has (not) handled things on his end. Any moron can look up the same things that I sent him and see that they (Marvel)have no merit. I sure hope Disney has a much better attorney on their side...

Federal court here we come!!!

Just a note to let you all know

As soon as I can get the rest of my listings moved over, I will only be selling on ArtFire. I followed the rules, faxed the things I was told to fax only to get told "Unfortunately,
since this is not a pure copyright claim, a copyright counter-notice is
not appropriate."
So, why did they keep telling me to file a counter notice??!! They knew it wasn't appropriate and they knew that they were not going to help me.
Obviously they know nothing about the law as they should, they are only worried about their "policies".
I will have my shop emptied as soon as I can get my tempermental mouse to start working correctly again.
Please feel free to visit my ArtFire studio and continue to follow my blog.

http://www.hairtiesgalorenmore.artfire.com/
http://www.hairtiesgalorenmore.blogspot.com/

Prayer Request

Family, friends & followers,
I have a special request please if you don't mind. I have a friend that is in need of prayer. My friend is suffering from a very severe bout of depression and can use all the prayers they can get. I can't (won't) go into details, but please take a minute and say a prayer. Also feel free to send this along to anyone you wish. Thank you all!!

P.S. On another note, the counter notice was faxed out yesterday!! Now it's a waiting game. Just my luck LOL

www.hairtiesgalorenmore.etsy.com
www.hairtiesgalorenmore.artfire.com
www.hairtiesgalorenmore.blogspot.com

Infringement notice post #3

So today is now Wednesday and I have emailed the letter to Mr Pan twice with no response from him. I am now in the process of filing a counter notice with the website that removed my product. I think it's pretty nasty that said website cannot and will not stand up for the little person. They have their "legal guidelines" and could care less about anything except making the almighty dollar. Well, I suggest they wake up, because when my friends and I are through turning everyone in for "infringement" on that website, they won't have much of a selling venue left. I was turned in by someone just for spite and I don't think that is fair either. (Guess maybe they are jealous of my work and my sales? LOL) Now I have to jump through hoops to try to get my item reinstated in my shop. The shop I have to pay money to list my products in. I'm sure the website isn't going to refund my listing fees either as menial as they are.
Anyway, counter notice is in the works but I'm sure everyone is going to drag their feet in getting the paperwork to the correct people. Who knows, this may just end up in court. I am willing to go that far. Like the letter said, "fabric is sold, not licenced". And I will make sure everyone knows it.

P.S. A counter notice is basically a dispute. My dispute is that they had no right to pull my product.

Infringement Notice 2

So, after some not so good attorney advice, I have made a new friend that is helping me. She has been thru this crap many a time and has a VERY informative website that y'all should visit. It's http://www.tabberone.com/. So I got a bit more calmed down with my new friends help and advice and sent a much more civilized letter to Mr Pan. It is as follows:

Mr Pan,
Licensed fabric means the fabric is licensed by the rights owner to be manufactured and sold. It does not mean the fabric is licensed at the time it is sold. A license on the use of the fabric requires the person buying it to agree, usually in writing, to conditions on the use of the fabric before paying for the fabric.
When someone releases fabric into the stream of commerce they effectively have relinquished control over the uses of that fabric.
While the pattern on the fabric may be copyrighted, the actual fabric itself is not. The pattern may include images of registered trademarks, such as the logo of the New York Yankees or a John Deere logo, etc. Licensed fabric means fabric that has been licensed by the rights owner to be manufactured and sold. It does not mean the fabric is being sold with a license. Disney licenses Springs Industries to manufacture, distribute and sell fabric that contain images of the Disney characters. That is where the term "licensed fabric" originates. For something to be sold with a license there has to be agreement between the seller and the buyer concerning the terms of the sale. Even though the selvage may make a statement that the fabric is for "non-commercial home use only", that "restriction" is not enforceable primarily because the purchaser does not have agree to the terms before purchase.
Copyright law applies to the use of licensed fabric in the application of the first sale doctrine. Bear in mind, the term "licensed fabric" legally only refers to the fact the manufacturer of the fabric has a license to use the images on the fabric. It does not mean the fabric is "licensed" to the purchaser. "Licensed" products require an agreement between the owner of the product and the potential purchaser. Fabric is not "licensed"; fabric is sold.
In Precious Moments vs La Infantil, 1997, the federal court invoked the first sale doctrine in denying Precious Moments attempts to block the use of its licensed fabrics. Since then, M&M/Mars, Disney Enterprises, Major League Baseball, United Media (Peanuts fabric), Sanrio (Hello Kitty fabrics), among others, have been sued when these companies tried to block the eBay sales of items hand-crafted from their licensed fabrics. Every one of them settled rather than risk losing the issue in court.
"The whole point of the first sale doctrine is that once the copyright owner places a copyrighted item in the stream of commerce by selling it, he has exhausted his exclusive statutory right to control its distribution."
Justice Stevens, delivering an opinion for a unanimous Supreme Court in the case QUALITY KING DISTRIBUTORS, INC. v. L'ANZA RESEARCH INT'L, INC. (96-1470), 98 F.3d 1109, reversed.

Copyright Law, Title 17 Chapter 1 §113(c), specifically states:
In the case of a work lawfully reproduced in useful articles that have been offered for sale or other distribution to the public, copyright does not include any right to prevent the making, distribution, or display of pictures or photographs of such articles in connection with advertisements or commentaries related to the distribution or display of such articles, or in connection with news reports.

Before you ask, my attorney agreed with everything that was brought up to him about the content of tabberone's website.

Infringement Notice

Here is what happened:
1) A notice was received from Gregory Pan (gpan@marvel.com), Contracts Manager of Marvel Entertainment, Inc. According to the notice Marvel Entertainment, Inc., and its related subsidiaries, is the owner of the copyrights, trademarks and other intellectual property rights in the Spider-Man, Iron Man, X-Men, Captain America, Avengers, Fantastic Four and Hulk characters as well as over 5,000 other popular characters. According to the notice certain material is not authorized.
2) The notice drew attention to 1 listing(s) in my shop.
3) The letter stated that these listing(s) incorporate designs or symbols or language or images or photographs that infringe upon the concerned party's copyright or other intellectual property right.
4) The listing(s)was removed.

Here is my response to Mr. Pan:

Dear Mr. Pan,

I do find this quite humorous as I HAVE already spoken with a lawyer about this such issue. I was told " As long as I am not making a living from the things I make with the fabric or making millions with the fabric, I CAN DO WITH IT WHAT I WANT." I bought and paid for the fabric, it is MINE to do with what I wish. I do wish however that I were making millions, then I wouldn't have to resort to justifying myself or my products. I WILL contact my lawyer again tomorrow and I will see if things have changed in a year, which I'm sure they haven't.

What exactly are we supposed to do with the fabric after we purchase it? Do you not think it is advertising for you? You got your money when I bought the fabric.

Do you really think I am going to get rich at $2.50 a bag? IF I am lucky, I might sell 1 bag a month. I can't even tell you how old the fabric is. I cannot believe you don't have better things to do than to pick on people who are just trying to make a couple of extra dollars, especially now days!!
I would also be very interested in seeing this list of over 5,000 characters that you "have rights" to.
I cannot wait to copy all of this nonsense and put it on my blog.
What exactly am I infringing on? Please do tell.


I want to thank whoever turned me in as you are just making my point very clear. When something is purchased it is YOURS to do with what you want. Is George Foreman going to come after me because I am selling his grill on Craigslist? I think not. George already got HIS money when the grill was purchased from Wal Mart. Stephen King could care less if I buy or sell his books at my garage sale or on Amazon as they are MY property to do with what I choose.
Again, I am NOT going to lay down and take this. I will be calling my attorney in the morning as these are the kinds of things he is getting paid for. Yet I am accused of just stirring up trouble to "take on the big companies". BITE ME, I DID NOT START THIS!
As for the Negative Nellie that I KNOW will HAVE to put their 2 cents worth in here, go ahead, I have decided I am NOT wasting any more of my time justifying myself to you. I will no longer acknowledge your posts, as a matter of fact, I will be deleting them as soon as they come in. Why don't you waste your time by turning in the thousands of others that are "infringing" that should make you feel just fabulous!!

Quickie update

Yes, I am still around and yes I am still sending the computer back. It is getting ready to be returned probably on Monday. It has taken this long as Mom and I have been busy helping my Aunt have a ginormous garage sale and we are doing it again this weekend. So, Mom has slowly been taking her pics and whatnot stuff off and putting it all on disk. WHAT A PAIN!! Maybe next time you read this we will have our refund OR have court date. I know they think I gave up, well I said I wasn't and I'm not. So keep us in your prayers that this gets resolved quickly.
Thanks to all!!

Help!! I need pills for my psychosis!!!

Yes, at least I CAN admit I am psychotic, unlike some people. Like I said, my psychosis is what gets me through life and dealing with idiots like you. I am very glad that you enjoy my blog, you also give my followers a good chuckle!! I am enjoying it too!!
Now, I KNOW that Jackie Perna aka TheDancersSpirit left me my first nasty note about me being psychotic on Ripoff Report, so I am also figuring since the verbage is the same it still must be her, undercover of course. Oh and no your (her) name wasn't posted, but it wasn't too hard to figure out. You obviously can't go public as everyone would then know what kind of person you really are and that would be bad for business.
As for refusing a shipment and them keeping the unit AND my money, hmmmmmm seems like a better lawsuit yet.
What my attorney and I discuss is none of your business, but he says we have a case so we will pursue it. I did read the contract I agreed to, even the one you copy/pasted on here and it makes an even better case for me when you break it down. Try going back and reading it again...slowly this time. You will see that all they do is double talk.
They "don't give refunds" BUT:
"Normally, all returns for non-defective reasons (e.g. customer changed mind) are subject to a 15% restocking fee, minimum $6.95."
Also,
"If you are not completely satisfied with a product purchased from 3B Tech, you may return it within 7 days of the delivery date for an exchange or a refund if qualified," so if returns are accepted up to 7 days after shipping then how is this also not considered a USED product?
SEE, A BUNCH OF DOUBLE TALK.
Like I said before, I don't care what you believe or don't believe. As for me needing help because "I am sick" and "suffering from severe psychosis" according to you is also none of your business. When you show my your medical licence, maybe then I will seek the help you so badly think I need.

I don't care...My response to anonymous

You know what, I don't care if you believe any of this or not, that is your problem not mine. I DO have any attorney for small claims court not that it is any of your business and what do you care? Your not paying for it. Oh and a decent attorney is and will get involved, again not that it's any of your business.
They can fix the machine and send it back, cuz it will go right back to them refused. I never said they were obligated to give a refund, you did.
I do understand basic business transactions and me being psychotic has nothing to do with understanding what is right. My psychosis is what gets me through life and dealing with idiots like you.
They have already sent a prepaid shipping label, so sorry to disappoint you, but you won't be hearing about them not refunding the shipping.
Oh and I (and I'm sure everyone else is too) was just wondering, you said I can tell the whole world who you are, then why do you keep insisting on posting as anonymous? I mean if you don't care, then go public or does your psychosis not let you come out of the closet?

Ok, since I have some jackasses that seem to HAVE to put their 2 cents worth in all the way around, we will clear this up now.
I am to send the computer back FOR A REFUND and if they refuse to refund then we WILL go to court.
If you people think I am so sick and psychotic, then stay away from me and my blog and anything else I am involved in. I DO NOT, I REPEAT DO NOT have a problem telling who you are as it is NOT considered "calling out" in MY PERSONAL blog.
So, long story short, the computer is going back for a REFUND as per MY ATTORNEY.

(For all other followers, there was another update before this one in which some comments were made that is what most of this post is in reference to.)

Quick update

Hey y'all, thought I'd pop in for a quick update.
The BBB has basically dropped the case since the company only wants to offer repair services, but they will be keeping the complaint on file. Right now (as I type) I am waiting for my attorney to call me to see where we go from here. I should know something by tonight, YAY!! So much for my "threat of an attorney" huh?
Oh yeah, I'd also like to address the "anonymous" person that commented in my RipOff Report about me needing help and that I "am suffering from psychosis." Guess what? I KNOW who you are and don't bother to speak to me again. Excuse me for fighting in something I believe in and if you consider that psychotic, then thats YOUR problem.
YAY!! Mr attorney just called and we are going to send the computer back!!! I will fill in the blanks later, I have a bunch to do now.
Thank you again to everyone for your support it is greatly appreciated!! I can't wait to finish this all up!! I will try to get something running short term for Mom so that she can still stay online and keep in touch with everyone, but just in case I can't at least you will all know what is up for now.
Love to all!!

Their Better Business Bureau response and mine back

Yesterday I received 3BTech's response to my BBB complaint it is below and my response back as their answer was not satisfactory to me. Now they have until Aug 10th to respond yet again.
I also wanted to thank the anonymous commenter from yesterday about the customer service, or should I say the lack thereof. I know I have ALWAYS tried to make MY customers happy...
Don't forget to vote over there>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>
before you leave!!

Their response:
On July 29, 2009, the business provided the following information:
We do not offer refunds on our custom built computers. This is clearly listed on our site under the terms and conditions. These terms must be agreed upon at check out by the customer. There is a box that the customer must check stating they agree to our terms or the transaction will not go through. http://3btech.net/info.html The statement by the customer that 3BTech does not do any refunds is absurd. We have a full time employee who's main job is to issue refunds. It is unfortunate that the customer experienced minor issues in the beginning. We tried to fix these right away. If the customer would have rather sent the item in they should have voiced there displeasure. We have offered many times to fix the machine at no cost to the customer. We normally require the customer to pay the ship any item back to us. We notified the customer we would make an exception and not require them to pay shipping. At the end of the day, we would like the opportunity to fix any problem the customer experienced. The item has a 1 year repair warranty and we would like the opportunity to repair the unit.

OFFER:
We would like to repair the unit at no cost to the customer. We have already issued a prepaid UPS shipping label to the customers email address.

My reply back:
It is NOT clearly listed on their site under terms and conditions and I have that in print dated July 17th. All they are doing is a bunch of double talk. If you would like to read the ENTIRE case here, you may go to my blog at
http://hairtiesgalorenmore.blogspot.com/ and start back at July 16th and read forward. You will see that they DO claim to not give refunds, but yet in their dispute,they have a full time employee that does nothing but issue refunds. There is also a recorded phone call on my blog from last week,it is of course typed out on the blog. Their remark about it being unfortunate that we experienced minor problems in the beginning is what is absurd here as there should have been NO problems at all. I really don't understand their second statement "If the customer would have rather sent the item in they should have voiced there displeasure."
Yes, they HAVE offered to fix the computer at no cost, BUT they don't seem to see what a bother it is to have to run to the post office every other week or so to send it back so they can fix what should NOT be broken in the first place. As well as the gasoline to get there and back and the inconvenience of not having the merchandise.
This IS going to end up in court as I have made it a legal matter now.

So this morning...

So, this morning I posted my blog with the responses to Pinkie and Ashley from Ripoff Report on Ripoff Report and Ashley has again responded.

Title: Per your lawyer
Comment: What lawyer would take your case on a 300$ computer? This would be a small claims court case, and you don't use lawyers for those.

You may want to check Ohio law on this. This is from their small claims division:
At the trial, you (the plaintiff) will be asked to tell your side of the story and the party against whom you are complaining (the defendant) will be asked to tell his or her side. The law requires the person who brings the case to prove that they have a valid claim.
She then listed an Ohio small claims court website link and proceeded to tell me "Additionally, I read that clause but Ohio does not have any additional warranty laws unless the product is a car."

She then posts another link, this one is to Ohio consumer laws and says "So their warranty is completely legal. Under the terms of their warranty, they have a right to fix or replace your computer. They do not have to give you a refund."

Ashley,

#1 It's always good to have such great friends...

#2 I don't need a lesson on small claims court, I will still have an attorney present in small claims if that is where it ends up and they will still have to spend money to go as well, attorney or not. They will have to pay for travel and lodging as well as for food even if they don't hire an attorney.

#3 I also know that in my state I cannot go for my attorney fees, BUT I CAN go for punitive damages...even in small claims court.

#4 It was an attorney who first sent me to the Ohio Consumer Sales Practices Act in the first place and the lawyer KNEW this was about a $300 computer and NOT a car.

#5 I also know that in ANY state it doesn't matter if you don't take refunds, you still HAVE to. I know this having had a small business myself and dealing with PayPal. Unless it is food it CAN be returned NO MATTER WHAT.

#6 Last but not least, I am also pursuing this on the principal of the whole thing, not just the money, but if they are going to persist on fighting me I WILL also fight for the punitive part of it as well.

Well folks, I'm not sure if Ashley works for them or not, but it sure seems like she does. Oh well, I've said what I needed to.
Again, off to post on Ripoff Report!! Thank you all for your support, like I said it's always good to have great friends and family too!!!

Well, today makes 2 weeks of dealing with this crap and I'm still plugging along. I am waiting to hear from the lawyer here pretty soon.
I went in and checked Ripoff Report this morning and had someone else (not an employee at least I don't think) pointing out 3B's warranties and policies, BUT she also neglected to post their disclaimer which everyone is seeming to ignore (except me).
It is as follows: State Law Rights
"Some states do not allow the exclusion or limitation of incidental or consequential damages, or limitations on how long an implied warranty lasts, so the above limitations or exclusions may not apply to you. This warranty gives you specific legal rights, and you may also have other rights, which vary, from state to state."
Then in larger red print it says "Not responsible for typos."
This is at the bottom of the very same page which she copied from.
She said "If you file a court case let us know with a docket number so we can follow it." I will be sure to do that Ashley as there is no "empty threat of an attorney," it is a fact of an attorney.

Now in response to "Pinkie" who left a comment on my blog yesterday. Yes they want us to send it back so they can fix it. We don't know why it wasn't in working order when we got it and neither do they, so they say. They are telling us that we have to keep sending it back to be fixed because that is their warranty. They don't care how long the consumer is without the product, as long as "they do their part."
We also question what will go wrong when the warranty is up. To correct you ( not being mean here) it is so far 3+ problems with the computer in 2 months. You are correct that something is NOT right here and that it IS a defective product, but they only seem to want to "fix" what should have been done in the first place.
I also know that their policy says "refund within 7 days" as I HAVE read everything and it has been sent and pointed out numerous times, BUT the problems started AFTER the 7 day period and we WERE contacting them. Do we have an RMA# for them to reference? No, go back and listen to your taped calls, then maybe, just maybe you will hear YOUR customer service rep tell my sister her 2 options, one of which was to "return for a refund."
It was also implied to me in the phone call with Seth that my Mom "changed her mind." She did not. She loves being on the computer and doing her genealogy among other things. She is retired and on a fixed income and the computer is one of the ways she keeps in touch with people, which doesn't cost a lot of money.
Another thing they kept throwing up to me was "it would be used and we don't sell used and we can't sell used etc..." How do we know that all the parts installed in the "customer built" computer that I bought are new and not used? Just because they "say" they only use new parts? I mean the latch on the floppy drive door was broken, there were no parts floating around in the box and there were no cables for the floppy drive to be hooked up, we had to have those sent to us as well.
I could also tell that Seth was not really paying attention to me when I said that "the only reason I was the one dealing with this was because Mom's computer blew up," his response was "well you said the front USB ports were not working, that does not make the computer unusable." Umm, I was talking about the old computer and why all of this was done in my name. I never said that the "new" computer was unusable, I said there were things on it that were unusable. I'm sure (in their opinion) that "I misunderstood" yet again. I don't think so, I know what I was saying and what I was talking about and I wasn't double talking!

Thank you again to everyone for all of your support!! Don't forget to vote in my poll before you leave!!