DMCA claim by Banale S.r.l. for Comfy Travel Pillow- Sleep Easy & Go Anywhere in Comfort!

sender

Private

[Private]

,
,
,

Sent on October 11, 2018

recipient

Kickstarter, PBC

[Private]

Brooklyn,
NY,
11222,
US

Re: Comfy Travel Pillow- Sleep Easy & Go Anywhere in Comfort!

Sent via: Unknown

Notice Type:: DMCA

Action taken:: No

Copyright claim #1

Kind of Work: Project

Description Copyright Description: Ladies and Gentlemen,

I am writing on behalf of, and in my capacity as legal counsel to, Banale S.r.l., an Italian limited company, with registered office in Milan, via Ricotti no. 15 ("Banale").

Banale is the producer of the "Banale Pillow", a 3 in 1 travel pillow, in memory foam (https://banale.com/eu_en/omni-pillow.html).

Banale promoted its product Pillow also through Kick Starter and between Dec 13 2017 - Feb 1 2018 launched a successful funding campaign through KS (https://www.kickstarter.com/projects/1423851799/one-travel-pillow-endless-sleeping-possibilities).

The design of the "Banale Pillow" was registered by Banale on November 24, 2017 with the European Union Intellectual Property Office (EUIPO) under no. 004521060-0001 and, as a result, Banale is currently the owner and rightful holder of any intellectual property rights in connection with such design throughout Europe., Infringement Description: The design of the Comfy Travel Pillow promoted on KS by Comfy Travel Pillow (Hong Kong, Hong Kong) is identical to the Banale Pillow, as identical the entire communication and promotion material (such as, pictures and videos) that it is used on KS to promote the Comfy Travel Pillow is to the communication and promotion material used back in 2017 by Banale to launch its campaign.

As you may appreciate, the Comfy Travel Pillow is not a product similar to the Banale Pillow but, instead, an identical copy of the design of the Banale Pillow.

We will separately protect the interests of our client Banale S.r.l. by claiming against Comfy Travel Pillow, but in the meantime we hereby do request Kick Starter to suspend the campaign launched by Comfy Travel Pillow as well as block any pledges received by Comfy Travel Pillow.

We would also advise to inform any and all backers to this campaign about the infringement of third parties' intellectual property rights by Comfy Travel Pillow.

We are of course available to provide you any further information or documents that might be necessary for your purposes.
Original URLs:
Allegedly Infringing URLs:
1. https://www.kickstarter.com/projects/1967506178/comfy-travel-pillow-sleep-easy-and-go-anywhere-in

Create DMCA Counter Notice

Related FAQs

What are the counter-notice and put-back procedures?

In order to ensure that copyright owners do not wrongly insist on the removal of materials that actually do not infringe their copyrights, the safe harbor provisions require service providers to notify the subscribers if their materials have been removed and to provide them with an opportunity to send a written notice to the service provider stating that the material has been wrongly removed. [512(g)] If a subscriber provides a proper "counter-notice" claiming that the material does not infringe copyrights, the service provider must then promptly notify the claiming party of the individual's objection. [512(g)(2)] If the copyright owner does not bring a lawsuit in district court within 14 days, the service provider is then required to restore the material to its location on its network. [512(g)(2)(C)]

A proper counter-notice must contain the following information:

The subscriber's name, address, phone number and physical or electronic signature [512(g)(3)(A)]

Identification of the material and its location before removal [512(g)(3)(B)]

A statement under penalty of perjury that the material was removed by mistake or misidentification [512(g)(3)(C)]

Subscriber consent to local federal court jurisdiction, or if overseas, to an appropriate judicial body. [512(g)(3)(D)]

If it is determined that the copyright holder misrepresented its claim regarding the infringing material, the copyright holder then becomes liable to the person harmed for any damages that resulted from the improper removal of the material. [512(f)]

See also Lumen's DMCA counter-notification generator.

What is a copyright notice?

A copyright notice is placed on copies of a work by the owner in order to inform the public that the owner - an individual or business - holds copyright in the work. The public is then "on notice" that the work is copyrighted and unauthorized copying may infringe the copyright owner's rights.

Generally, a proper copyright notice must contain:
1. The symbol ©, the word “Copyright”, or the abbreviation “Copr.”
2. The year of first publication of the work.
3. The name of the copyright owner, a recognizable abbreviation of the copyright owner's name, or a generally known alternative designation of the owner.

The notice must also be placed on copies of a work so that they give reasonable notice of the claim of copyright.

The legal effect of proper copyright notice is to prevent a defendant in a copyright infringement suit to raise a defense based on innocent infringement. Simply, it prevents a defendant from saying "I had no idea that this work was copyrighted and I should not have to pay damages for willful infringement."

The specific notice provisions are set forth in 17 U.S.C. § 401-406.

Am I free to copy the content from someone else's website verbatim?

No. While you are free to report the facts and ideas embodied in another person's article or web page, you shouldn't copy the entire page unless you can assert a fair use defense. Copyright does not protect facts or ideas, but it can protect the particular way someone has expressed them.

What constitutes unlicensed copy and display of copyrighted material?

Unlicensed use or distribution of copyrighted works is illegal and may be considered a criminal act. Copyright law grants the exclusive right to use, copy, distribute, display, and perform a copyrighted work to the owner of the copyright. The owner of the copyright is the only entity that may grant permission for anyone to use, copy, distribute, display and perform the work.

What is "proprietary" material?

"Proprietary" indicates that a party, or proprietor, exercises private ownership, control or use over an item of property, usually to the exclusion of other parties.

Where a party, holds or claims proprietary interests in relation to certain types of property (eg. a creative literary work, or software), that property may also be the subject of intellectual property law (eg. copyright or patents).

What is the "first sale" doctrine?

First sale is a doctrine in copyright law saying the owner of a particular copy of a copyrighted work has the right to sell, lend, or transfer that copy. In other words, the copyright holder's rights over a physical copy of a work end with the "first sale." The doctrine is codified in the Copyright Act, 17 U.S.C. 109.

Am I free to copy the content from someone else's website verbatim?

No. While you are free to report the facts and ideas embodied in another person's article or web page, you shouldn't copy the entire page unless you can assert a fair use defense. Copyright does not protect facts or ideas, but it can protect the particular way someone has expressed them.

What are statutory damages?

A copyright owner can only sue for infringement on a work whose copyright was registered with the Copyright Office, and can get statutory damages and attorney's fees only if the copyright registration was filed before infringement or within three months of first publication. (17 U.S.C. 411 and 412) (17 U.S.C. 411 and 412)

A copyright owner may avoid proving actual damage by electing a statutory damage recovery of up to $30,000 or, where the court determines that the infringement occurred willfully, up to $150,000. The actual amount will be based upon what the court in its discretion considers just. (17 U.S.C. 504). (17 U.S.C. 504)

Does copyright protect facts?

No. Copyright protects only original expression, not discovered facts. Creative selection and arrangement of facts is protected, but you can take the basic facts and rearrange them without infringing copyright. Thus the publishers of a telephone book cannot sue an online phone book publisher for copyright infringement, even if it took the first publishers considerable effort to collect the listings.

What is commercial reproduction of copyrighted materials?

Commercial reproduction is reproduction of multiple copies of copyrighted materials, in whole or in part, for the purposes of commercial redistribution. The permission granting process of copyrighted materials helps ensure individuals/organizations wishing to reproduce such materials for commercial purposes have access to the most accurate, up-to-date versions.

Do I need to register my copyright?

You get copyright automatically when you create a work and "fix" or record it. Registration with the Copyright Office is not a prerequisite, but it can give you additional protection: you can only get statutory damages for infringement of a registered copyright. A U.S. author must also register before filing a copyright lawsuit.

What kinds of things are copyrightable?

In order for material to be copyrightable, it must be original and must be in a fixed medium.

Only material that originated with the author can support a copyright. Items from the public domain which appear in a work, as well as work borrowed from others, cannot be the subject of an infringement claim. Also, certain stock material might not be copyrightable, such as footage that indicates a location like the standard shots of San Francisco in Star Trek IV: The Voyage Home. Also exempted are stock characters like the noisy punk rocker who gets the Vulcan death grip in Star Trek IV.

The requirement that works be in a fixed medium leaves out certain forms of expression, most notably choreography and oral performances such as speeches. For instance, if I perform a Klingon death wail in a local park, my performance is not copyrightable. However, if I film the performance, then the film is copyrightable.

Single words and short phrases are generally not protected by copyright, even when the name has been "coined" or newly-created by the mark owner. Logos that include original design elements can be protected under copyright or under trademark. Otherwise, words, phrases and titles may be protected only by trademark.

What are the possible penalties for copyright infringement?

Under the Copyright Act, penalties for copyright infringement can include:

an injunction against further infringement -- such as an order preventing the infringer from future copying or distribution of the copyrighted works

impounding or destruction of infringing copies

damages -- either actual damages and the infringer's profits, or statutory damages

costs and attorney's fees

A copyright owner can only sue for infringement on a work whose copyright was registered with the Copyright Office, and can get statutory damages and attorney's fees only if the copyright registration was filed before infringement or within three months of first publication. (17 U.S.C. 411 and 412).

What is "trade dress"?

Trade dress refers to characteristics of the visual appearance of a product or its packaging that signify the source of the product to consumers. The “look and feel” of a product or its packaging.

May I freely copy from federal government documents?

Yes. Works produced by the US government, or any government agency or person acting in a government capacity, are in the public domain. So are the texts of legal cases and statutes from state or federal government. Private contractors working for the government, however, can license or transfer copyrights to the US government, and those copyrights remain enforceable.

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DMCA claim by Banale S.r.l. for Comfy Travel Pillow- Sleep Easy & Go Anywhere in Comfort!

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DMCA claim by Banale S.r.l. for Comfy Travel Pillow- Sleep Easy & Go Anywhere in Comfort!

sender

Private

recipient

Kickstarter, PBC

Re: Comfy Travel Pillow- Sleep Easy & Go Anywhere in Comfort!

Copyright claim #1

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