After reading the actual suit I understand why Summit would go after Zazzle as the 'big dog' but they also acknowledge that the offending designs are by individuals (not Zazzle) and even have examples of the products with the SK's name on them. I'd suggest they sue the 'puppy' not the parent.

If I remember rightly there was the "sweet pea" incident a few years back which cost some shopkeepers a hell of a lot of money ...

Hilly

But as in most things the parent is responsible for the puppy.

Yes in fact one of the accusations Summit make is Zazzle allow people to use names and keywords which infringe trademarks. One of the images shown appears to show a store called "Edward Cullen" although the products in it appear to show heart designs and not to be infringing in themselves.

Whilst I suspect there's a fair possibility the name "Edward Cullen" used in that instance may have been deliberate. There's also the aspect "Cullen" is a real surname and people do sometimes share names with fictional characters.

I don't therefore see how Zazzle could be held responsible for what people choose to call their store any more than what parents decide to call their children. Obviously if Summit have a problem with that they should contact this Edward Cullen.

The other thing I think weakens Summits case is apparently they are allowing people to make Twilight related designs and sell them on products on Cafepress. They seem to have some form of agreement with CP.

The problem as I see it though is surely any implied licence agreement isn't actually with CP but with the people who use Cafepress and make the designs. So if there is any infringement it's because CP users are not keeping such designs exclusive to CP and use more than one POD site.

However the last time I checked CP's TOS they were operating under a stated non-exclusive licence agreement. Which obviously implies they don't actually claim any exclusive rights to any designs provided by their users, which presumably would also include twilight related designs.

If that's the case I don't see how users would be infringing anything by putting the same designs on other POD sites. Since Summit appear to have have no special exclusive agreement with either CP themselves, the users of CPs service or users of POD demand sites generally. So any special agreement Summit have with CP would appear to have little value, since it's the users of POD sites who actually create and market the designs and there is little to indicate that any implied agreement is meant to be exclusive to CP. In fact non-exclusivity appears to be implied by CP's own TOS.

Surely if Summit have a problem it seems due to their misunderstanding of how the POD market actually works and who actually makes the designs and market them on the products, which is of course the user, since a POD site is simply the conduit or service which enables this. So if they want to licence designers to make twilight related products they need to make an agreement with the designers and users of POD services not the actual POD site.

I learned from my copyright attorney several years ago that a third party (such as Zazzle) can be held liable for designs posted by members IF the third party has been informed of violations and did not take action.

The news article says Zazzle received cease & desist requests from Summit in November 2008 and August 2009... so that's why Summit is suing them. Their position appears to be that the November 2008 cease & desist request was ignored.

Zazzle will be able to prove that they did in fact take action (by showing how many Twilight products they deleted beginning in November 2008) so I don't expect them to lose the suit.

Yes, Well I wouldn't go so far as say permission was given apart from in the context of CP, and without knowing the precise circumstances and whether there was some stated exception to the normal non-exclusive arrangement most POD sites have in relation to designs provided by their users in which CP is no exception, as far as I am aware. It's difficult to be certain if this argument would hold up in court.

However if there was no special exception obviously if Summit in association with CP have allowed CP users to make twilight related designs under the usual non-exclusive licensing agreement CP state in it's TOS. There is no case to answer. Because a) it wouldn't be illegal for users to put their designs on another POD site (because permission is implied under a non-exclusive agreement) b. It's not illegal for Zazzle to run a POD service in competition with Cafepress. c. If Summit are using a POD site to popularize and advertise it's products there's no reason it should be exclusive. I don't see how they could claim such publicity was damaging or diluted their reputation if they instigated it themselves for their own finacial gain.

Obviously if this is the case there is no case here, it should be thrown out of court. NEXT!

In fact I dare say the case could even be regarded as an attempt to interfere with Zazzle's lawful trade. Particularly if it can be shown Summit is acting in collusion with Cafepress.

Well I don't think one has to much of a legal expert to realise a total lack of evidence would be a major technicality

Obviously if CP users were and are allowed to make twilight products under the terms of a non-exclusive licensing arrangement. Then it certainly wouldn't be infringement to put said designs on another pod site. Neither would another POD site be under any obligation to remove perfectly legal designs. So any accusations regarding delays in removing the designs in question would be irrelevant if they weren't actually infringing designs in the first place.

Saying that I'm not making any claims to know the precise terms CP users were allowed to make Twilight related designs and whether there was a specific exception to the usual non-exclusive terms, I don't know. But obviously if there wasn't any specific exception it's doubtful there was any infringement in which instance the rest of the case falls apart.

But maybe that's wishful thinking on my part.