Legal Question in Intellectual Property in New Hampshire

Is This Copyright Infringement?

My hobby consists of making handmade scented soap bars. I would like to turn this hobby into a full-time business selling my soap on eBay. In order to scent the soap, I purchase the fragrance oils from an online retailer. The online retailer offers duplicate scents of some well-known fragrances and labels them as ''types''. For example, they offer their interpretation of Elizabeth Arden's Red Door perfume, and labels it as, ''Elizabeth Arden Red Door (Type).'' When selling my soap online, can I use the title, ''Red Door Handmade Soap Elizabeth Arden Type''? Can I also use the same wording on my packaging as well? Is this copyright infringement? --Thank you!

Asked on 9/25/05, 10:47 am

3 Answers from Attorneys

Lawrence Graves Coolidge & Graves PLLC

Re: Is This Copyright Infringement?

You are treading on thin ice here -- lots of ways to run afoul of trademark owners (not a copyright issue as to the name). Bear in mind that these large companies can cost you a lot of money to defend an infringement case, so it is best to stay on the safe side with some margin to spare.

A trip to your local drug store may give you some practical applications for your type of issue -- look at the shampoo aisle, and see how they use the "compare to X (famous stylist) product." For an online context, your suggested product listing is bound to cause problems, as there is something called "initial interest confusion" that gives rise to trademark infringement liability. A listing that clearly states that the product is NOT affiliated with the designer/creator of the copied fragrance is where you should be (e.g., "scented soap, compare to Elizabeth Arden's Red Door perfume scent" as the product listing, and a further description in the details section that your product is made using scents from another source with the goal of imitating the scent of the designer....

Best wishes,

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Answered on 9/26/05, 8:39 am
David Anderson Anderson Business Law LLC

Re: Is This Copyright Infringement?

The answers to your questions are:

No No & Yes

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Answered on 9/25/05, 11:19 am
Michael Hermann Law Office of Michael Hermann

Re: Is This Copyright Infringement?

''Elizabeth Arden" is a US Registered Trademark, so yhour question really should be: Is this Trademark Infringement?" (Copyright infringment occurs if you copied packaging appearance, written documents (ads) etc. The Courts have made an exception here, where frangrances (smell) is concerned. It is not fair to confuse the concsumer, but you also need to INFORM the consumer as to what the product is, and the courts have allowed the use of famous trademarks for fragrances (Ex. Chanel No5) to be used as long as it is clear that it is a "type" of frangrance, attemping to simulate the famous smell. If you use proper disclaiming language, you will be OK. DON'T copy any images, logos, or distincitve typefaces of these famous products. Be distinctive in your designs and packaging.

Good Luck.

Michael in VT

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Answered on 9/25/05, 4:48 pm

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