Tartan Law Suit - LL Bean & "Maine" tartan

[Erisianmonkey]

So the tartan is registered as "The" Maine tartan, then? I have a problem with this individual registering a tartan as a state tartan, and then turning around and not even allowing it to be printed in a book about district tartans. If she doesn't want people to use it, then she needs to change the name of the tartan. Why, as Matt stated earlier, even design a tartan for a state and then restrict it's use?

Regards,

Todd

Actually, there is a precedent for someone using a place name for a product. In the car industry, vehicle models are often given place names. (e.g, Dodge Durango, Toyota Tacoma, etc.) If, say, Kia (to grab a vehicle manufacturer at random) was to name a vehicle the "Durango," I'm pretty sure that the courts would put a stop to it. If they were to copy the body design of the Dodge Durango, they would end up paying Daimler a boat load of money for stealing their design.

Just my $0.02.

[macwilkin]

Actually, there is a precedent for someone using a place name for a product. In the car industry, vehicle models are often given place names. (e.g, Dodge Durango, Toyota Tacoma, etc.) If, say, Kia (to grab a vehicle manufacturer at random) was to name a vehicle the "Durango," I'm pretty sure that the courts would put a stop to it. If they were to copy the body design of the Dodge Durango, they would end up paying Daimler a boat load of money for stealing their design.

Just my $0.02.

Matt makes a similar comparison to the naming of tartans for clans and automobile names; if I remember correctly, he made a great comment about how no one really believes that Cherokees drove jeeps or Apaches flew helicopters!

Of course, my point was that the Maine tartan was designed to honour/symbolize the State of Maine and its Scottish heritage, and given its history, if the present "owner" is going to be so restrictive, she should probably change the name.

T.

[flairball]

Personally I think this whole situation stinks. My experiences with LL Bean have been great, and it's one company I always feel comfortable dealing with. I, too take issue with naming a tartan "Maine" and then restricting the use of the tartan. What exactly was this person thinking? Perhaps, if the intent was to restric the use of the tartan the name could have used the word Maine in it with something else to help differentiate it from the state's official tartan. Prior to this thread, if I was to search for Maine's state tartan I would search for "Maine", as I did, and would have found this restricted tartan.

As I understand it the woman who is sueing LL Bean didn't design the tartan, but owns the rights to it. So, what is the reasoning for not wanting the tartan used?

[James73]

My understanding is that, with any kind of intellectual property (a poem you wrote, an article, a painting, or in this case a tartan) you automatically have copyright simply by virtue of the fact that you are the creator of the "thing."

Registering your "thing" with a body such as the US Copyright office is not neccesary for you to have copyright, but simply provides a means by which you can prove, if needs be, that yes you did design this "thing" on such-and-such a date and the US Copyright office has record of it.

If the question of copyright ever comes up in court and you need to prove that you actually are the original designer of the "thing" having it recorded in the US Copyright office really helps. Otherwise you will have to find some other way to prove your claim of copyright.

But the copyright status itself is not dependant upon formal registration of your "thing." Registering it only makes it easier to defend your copyright.

M

This was my understanding as well and I ran it by a friend who is an intellectual property lawyer and he confirmed that this is fundamentally correct. Of course being a lawyer he then wandered off into all the exceptions, caveats and other whatnots where they make a living.

[Erisianmonkey]

Of course, my point was that the Maine tartan was designed to honour/symbolize the State of Maine and its Scottish heritage, and given its history, if the present "owner" is going to be so restrictive, she should probably change the name.

I can understand your point of view. I do wonder, however if such a thing is possible at this point. Is it not already registered as "Maine" in one or more tartan databases? Renaming it could actually cause more problems than good, confusion wise. (And let's face it, tartans can be confusing to begin with. That's why we have people such as Matt Newsome that study tartan as a lifestyle and/or career.)

[jordanjm]

I am curious about who IS allowed to use that Tartan

[neo71665]

Actually, there is a precedent for someone using a place name for a product. In the car industry, vehicle models are often given place names. (e.g, Dodge Durango, Toyota Tacoma, etc.) If, say, Kia (to grab a vehicle manufacturer at random) was to name a vehicle the "Durango," I'm pretty sure that the courts would put a stop to it. If they were to copy the body design of the Dodge Durango, they would end up paying Daimler a boat load of money for stealing their design.

Just my $0.02.

Funny that you point that out, I have owned a chevy s-10 with the durango package. It had durango badges all over it. Chevy used that name long before dodge ever thought of it.

[Graywolf]

Yes, a tartan can be held under copyright protection. That is why you register i, but if it wasn't copyright protected, you have a difficult time proving your case. Registration is NOT copyright protection.

[Nanook]

However, the big irony is that the tartan LL Bean used was the original Maine tartan. Had they selected the Maine Dirigo tartan, which is actually the official state tartan, they would not have had to deal with these pesky copyright issues.

The problem is that unless they defended their copyright against its use by LL Bean they would effectively yield their rights to the pattern to LL. Bean. Copyrights are not patents. Worse still: even public patterns can be made proprietary merely by their association with a brand. I refer the readers here to look at Burberry's threats against the mills making Thompson Camel tartans (and companies using the cloth). Their lawyers have argued that it does not matter that Thompson Camel predates the company or its use but that its come to be a logo identified with Burberry. I refer also to the Sony-versus-Sony and other similar suits. Should LL Bean continue to use the tartan without agreement with the copyright holders and they did nothing then LL Bean could eventually argue that they own "effectively" the tartan and could, in theory, move to prevent the current copyright holders from using it. Twisted world!

[Fearnest]

The problem is that unless they defended their copyright against its use by LL Bean they would effectively yield their rights to the pattern to LL. Bean. Copyrights are not patents. Worse still: even public patterns can be made proprietary merely by their association with a brand.

There are similar problems with trademarks and service marks.

Look at the term "XEROX." It became so commonly used as a term for photocopiers and photocopies (e.g. "I'm going to XEROX a copy of my tax returns") that it lost its trademark protection, and the XEROX corporation no longer has the right to exclude others from using its corporate name!

If that can happen to such a huge entity, think about the individual owner of intellectual property (whether or not he or she was the actual originator, or just purchased the rights from the original copyright holder). If you don't defend your rights, you lose them.