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 Chilling Effects Clearinghouse > DMCA Notices > Notices > Victoria's Secret Knocks PinkLovesConsent Offline (NoticeID 743971, http://chillingeffects.org/N/743971) Printer-friendly version

Victoria's Secret Knocks PinkLovesConsent Offline

December 07, 2012

 

Sender Information:
Victoria's Secret, Inc.
Sent by: Outside Counsel for Victoria's Secret Stores Brand Management, Inc.
Pranger Law Group

San Francisco, CA, 94123,

Recipient Information:
pinklovesconsent.com
Bluehost, Inc,




Sent via: email
Re: Copyright and Trademark Infringement of Victoria's Secret Materials and Trademarks

DMCA and Trademark Agent:

Below please find the information regarding Victoria's Secret Stores Brand Management, Inc. request for removal of the following trademarks and copyrighted materials, both of which are presently being infringed by the following websites hosted by Bluehost, Inc., namely, www.pinklovesconsent.com and www.partywithpink.com.

Bluehost Inc.'s Requested DMCA Takedown Information:

1. A signature of a person authorized to act on behalf of the owner of the exclusive right that is allegedly infringed. Identification of the copyrighted work that is claimed is being infringed, or, in the case of claimed infringement of multiple copyrighted works, a representative list of such works.

Signature: [redacted]

Copyright Work Being Infringed: The following is a representative list of the copyrighted materials being infringed:
Substantive portions of Victoria's Secret Stores Brand Management, Inc. website http://www.victoriassecret.com/pink
and photographic images of Victoria's Secret Stores Brand Management, Inc. fashion models.

Trademarks Being Infringed:
- US Reg. No. 1146199, VICTORIA’S SECRET, for “women’s lingerie” in International Class 025.

- US Reg. No. 2820380, VICTORIA'S SECRET PINK, for “Clothing, namely, bras, panties, camisoles, pajamas, sleep shirts, robes and T-shirts” in International Class 025.

- US Reg. No. 3805362, LOVE PINK VICTORIA'S SECRET & Design, for “Bras; Jackets; Panties; Sleepwear; Sweat pants; T-shirts” in International Class 025.

- US Reg. No. 3940420, 1986 PINK NATION VICTORIA'S SECRET, “retail store services in the field of clothing and accessories, personal care products, jewelry and various gifts featuring a bonus incentive program for customers” in International Class 035.


2. Identification of the material that is claimed to be infringing or is the subject of infringing activity and that should be removed or access to which should be disabled, with information reasonably sufficient to permit us to locate the material.

The aforementioned works are being infringed by the following websites hosted by Bluehost, Inc.

- www.pinklovesconsent.com

- www.partywithpink.com

The registrants are using the VICTORIA'S SECRET, PINK and Heart Logo Design all without permission, to create confusion and to promote the non-authorized, non-associated sites Pinklovesconsent.com and partywithpink.com. The registrants are furthermore utilizing copyrighted images belonging to Victoria's Secret Stores Brand Management, Inc., including scrapped, copied, lifted or recreations of substantive portions of Victoria's Secret Stores Brand Management, Inc. website http://www.victoriassecret.com/pink, it's trademarks and trade dress, and photographic images of Victoria's Secret Stores Brand Management, Inc. fashion models.

3. Information reasonably sufficient to permit us to contact the person giving the notification, such as an address and telephone, and, if available, an electronic mail address at which such person may be contacted.


[redacted]

Attorney - Outside Counsel for Victoria's Secret Stores Brand Management, Inc.

Pranger Law Group

3223 Webster Street

San Francisco, CA 94123

Phone number: [redacted]

Email: [redacted]

4. A statement that the person giving the notification has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law.

I declare that I have a good faith belief that the use of the material in the manner complained of is not authorized Victoria's Secret Stores Brand Management, Inc., its agents or the law.

5. A statement that the information in the notification is accurate, and under penalty of perjury, that the person giving the notification is authorized to act on behalf of the owner of the exclusive right that is allegedly infringed.

I declare that based on information and belief the information contained herein is accurate I state under penalty of perjury I am authorized to act on behalf of Victoria's Secret Stores Brand Management, Inc. with respect to the enforcement of their intellectual property rights.

Nothing in this letter shall be construed as a waiver or relinquishment of any rights or remedy possessed by Victoria's Secret Stores Brand Management, Inc. or any other affected party.

Sincerely,

[redacted]


Pranger Law Group

3223 Webster Street

San Francisco, CA 94123

 
FAQ: Questions and Answers

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Question: Why does a web host or blogging service provider get DMCA takedown notices?

Answer: Many copyright claimants are making complaints under the Digital Millennium Copyright Act, Section 512(c)m a safe-harbor for hosts of "Information Residing on Systems or Networks At Direction of Users." This safe harbors give providers immunity from liability for users' possible copyright infringement -- if they "expeditiously" remove material when they get complaints. Whether or not the provider would have been liable for infringement by materials its users post, the provider can avoid the possibility of a lawsuit for money damages by following the DMCA's takedown procedure when it gets a complaint. The person whose information was removed can file a counter-notification if he or she believes the complaint was erroneous.

Question: What does a service provider have to do in order to qualify for safe harbor protection?

Answer: In addition to informing its customers of its policies (discussed above), a service provider must follow the proper notice and takedown procedures (discussed above) and also meet several other requirements in order to qualify for exemption under the safe harbor provisions.

In order to facilitate the notification process in cases of infringement, ISPs which allow users to store information on their networks, such as a web hosting service, must designate an agent that will receive the notices from copyright owners that its network contains material which infringes their intellectual property rights. The service provider must then notify the Copyright Office of the agent's name and address and make that information publicly available on its web site. [512(c)(2)]

Finally, the service provider must not have knowledge that the material or activity is infringing or of the fact that the infringing material exists on its network. [512(c)(1)(A)], [512(d)(1)(A)]. If it does discover such material before being contacted by the copyright owners, it is instructed to remove, or disable access to, the material itself. [512(c)(1)(A)(iii)], [512(d)(1)(C)]. The service provider must not gain any financial benefit that is attributable to the infringing material. [512(c)(1)(B)], [512(d)(2)].


Question: What are the provisions of 17 U.S.C. Section 512(c)(3) & 512(d)(3)?

Answer: Section 512(c)(3) sets out the elements for notification under the DMCA. Subsection A (17 U.S.C. 512(c)(3)(A)) states that to be effective a notification must include: 1) a physical/electronic signature of a person authorized to act on behalf of the owner of the infringed right; 2) identification of the copyrighted works claimed to have been infringed; 3) identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed; 4) information reasonably sufficient to permit the service provider to contact the complaining party (e.g., the address, telephone number, or email address); 5) a statement that the complaining party has a good faith belief that use of the material is not authorized by the copyright owner; and 6) a statement that information in the complaint is accurate and that the complaining party is authorized to act on behalf of the copyright owner. Subsection B (17 U.S.C. 512(c)(3)(B)) states that if the complaining party does not substantially comply with these requirements the notice will not serve as actual notice for the purpose of Section 512.

Section 512(d)(3), which applies to "information location tools" such as search engines and directories, incorporates the above requirements; however, instead of the identification of the allegedly infringing material, the notification must identify the reference or link to the material claimed to be infringing.


Question: Does a service provider have to follow the safe harbor procedures?

Answer: No. An ISP may choose not to follow the DMCA takedown process, and do without the safe harbor. If it would not be liable under pre-DMCA copyright law (for example, because it is not contributorily or vicariously liable, or because there is no underlying copyright infringement), it can still raise those same defenses if it is sued.


Question: How do I file a DMCA counter-notice?

Answer: If you believe your material was removed because of mistake or misidentification, you can file a "counter notification" asking the service provider to put it back up. Chilling Effects offers a form to build your own counter-notice.

For more information on the DMCA Safe Harbors, see the FAQs on DMCA Safe Harbor. For more information on Copyright and defenses to copyright infringement, see Copyright.


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Question: What exactly are the rights a trademark owner has?

Answer: In the US, trademark rights come from actual use of the mark to label one's services or products or they come from filing an application with the Patent and Trademark Office (PTO) that states an intention to use the mark in future commerce. In most foreign countries, trademarks are valid only upon registration.

There are two trademark rights: the right to use (or authorize use) and the right to register.

The person who establishes priority rights in a mark gains the exclusive right to use it to label or identify their goods or services, and to authorize others to do so. According to the Lanham Act, determining who has priority rights in a mark involves establishing who was the first to use it to identify his/her goods.

The PTO determines who has the right to register the mark. Someone who registers a trademark with the intent to use it gains "constructive use" when he/she begins using it, which entitles him/her to nationwide priority in the mark. However, if two users claim ownership of the same mark (or similar marks) at the same time, and neither has registered it, a court must decide who has the right to the mark. The court can issue an injunction (a ruling that requires other people to stop using the mark) or award damages if people other than the owner use the trademark (infringement).

Trademark owners do not acquire the exclusive ownership of words. They only obtain the right to use the mark in commerce and to prevent competitors in the same line of goods or services from using a confusingly similar mark. The same word can therefore be trademarked by different producers to label different kinds of goods. Examples are Delta Airlines and Delta Faucets.

Owners of famous marks have broader rights to use their marks than do owners of less-well-known marks. They can prevent uses of their marks by others on goods that do not even compete with the famous product.


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Question: What are the limits of trademark rights?

Answer: There are many limits, including:

  • Fair Use
    There are two situations where the doctrine of fair use prevents infringement:
    1. The term is a way to describe another good or service, using its descriptive term and not its secondary meaning. The idea behind this fair use is that a trademark holder does not have the exclusive right to use a word that is merely descriptive, since this decreases the words available to describe. If the term is not used to label any particular goods or services at all, but is perhaps used in a literary fashion as part of a narrative, then this is a non-commercial use even if the narrative is commercially sold.
    2. Nominative fair use
      This is when a potential infringer (or defendant) uses the registered trademark to identify the trademark holder's product or service in conjunction with his or her own. To invoke this defense, the defendant must prove the following elements:
      • the product or service cannot be readily identified without the mark
      • he/she only uses as much of the mark as is necessary to identify the goods or services
      • he/she does nothing with the mark to suggest that the trademark holder has given his approval to the defendant
  • Parody Use
    Parodies of trademarked products have traditionally been permitted in print and other media publications. A parody must convey two simultaneous -- and contradictory -- messages: that it is the original, but also that it is not the original and is instead a parody.
  • Non-commercial Use
    If no income is solicited or earned by using someone else's mark, this use is not normally infringement. Trademark rights protect consumers from purchasing inferior goods because of false labeling. If no goods or services are being offered, or the goods would not be confused with those of the mark owner, or if the term is being used in a literary sense, but not to label or otherwise identify the origin of other goods or services, then the term is not being used commercially.
  • Product Comparison and News Reporting
    Even in a commercial use, you can refer to someone else?s goods by their trademarked name when comparing them to other products. News reporting is also exempt.
  • Geographic Limitations
    A trademark is protected only within the geographic area where the mark is used and its reputation is established. For federally registered marks, protection is nationwide. For other marks, geographical use must be considered. For example, if John Doe owns the mark Timothy's Bakery in Boston, there is not likely to be any infringement if Jane Roe uses Timothy's Bakery to describe a bakery in Los Angeles. They don't sell to the same customers, so those customers aren't confused.
  • Non-competing or Non-confusing Use
    Trademark rights only protect the particular type of goods and services that the mark owner is selling under the trademark. Some rights to expansion into related product lines have been recognized, but generally, if you are selling goods or services that do not remotely compete with those of the mark owner, this is generally strong evidence that consumers would not be confused and that no infringement exists. This defense may not exist if the mark is a famous one, however. In dilution cases, confusion is not the standard, so use on any type of good or service might cause infringement by dilution of a famous mark.


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