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Dolan Williams
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Can a DMCA claim take down a product on a online if the

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Can a DMCA claim take down a product on a online if the product itself does not have copyright registration?

Hello! Thanks for using JustAnswer. My name is ***** ***** I am an attorney ready to answer your questions with top-quality service. Just a few quick things before we get started:

  • I’m sorry to hear you are having these problems with your legal issue. I know that can be frustrating. However, we can get this resolved quickly;

  • I always go for immediate responses, but I am occasionally called away for client meetings.

  • Did you get the DMCA takedown notice yourself or are you trying to send it?

Customer: replied 10 days ago.
Hey i am wondering i want to sell this necklace, I know they do not have a copyright registration on their product. So that means they can simply not claim a DMCA? Well they can but it would not be ideal as i can file a counter notice
Customer: replied 10 days ago.
I have done a copyright registration search, this necklace has not got a patent, copyright or trademark.

I see! I need to get my bearing straight on this. Did you receive a DMCA notice at all?

Customer: replied 10 days ago.
However i did get DMCA take down notice for infringement of pictures
Customer: replied 10 days ago.
this was only for the pictures thar was taken directly from the competitor website which was my mistake. Pictures got taken down immediately by Shopify

Thanks!

Are you wondering if they can do it for the product as well?

Customer: replied 10 days ago.
i believe they can not do it for the product itself
Customer: replied 10 days ago.
Only if they have copyright infringement am i right or wrong!
Customer: replied 10 days ago.

Sure thing!

I'm trying to get some facts before I answer or else I'm no good to you. A quick answer may seem good, but a quick answer is often wrong.

Are you selling an identical item or are you a retailer for the item?

Customer: replied 10 days ago.
I am selling the same item it is a necklace from ali express, however supplier from ali express china is telling me it is the competitor design but they are willing to still sell to me as they manufacture it and send from china to USA
Customer: replied 10 days ago.
I have made slight changes in the design but still looks the same
Customer: replied 10 days ago.
much appreciated a lot dolan

Got it! You're just wondering if they can do the DMCA for the photo and the necklace, correct?

Customer: replied 10 days ago.
Nope just for the necklace, i know i have to take my very own photos! Because they can still do a DMCA take notice for infringement of their photos
Customer: replied 10 days ago.
https://ibb.co/xL0Yq9v
Customer: replied 10 days ago.
Please view the link this is my changes to the original design let me send the original design

Thanks so much! I believe I have everything I need, but was there anything else you’d like to add? If not, I can begin working on your answer. It may be up to 15 minutes before I respond, but rest assured I am working on it right now.

Customer: replied 10 days ago.
https://ibb.co/v4Knh72
Customer: replied 10 days ago.
This it the competitor design
Customer: replied 10 days ago.
Can you also let me know not just for the DMCA claim, since you have links to the images, can you also help me clarify if these necklaces can even be registered? As the copyright.gov does say certain products can not be eligible for copyright registration if it is not unique in design, not your idea, etc or seen a simialr design but altered it, they also mention familar symbols can not be copyrighted too

No problem! I’ll certainly address that. Anything else you'd like to add you think is relevant?

Customer: replied 10 days ago.
just these two can you clear it up for me thanks :)

No problem! Just a moment. I just need about 15 minutes or so to draft up your answer

Customer: replied 10 days ago.
Thanks so much

You bet!

Thanks so much for your patience!

Generally, a person can send a DMCA takedown notice if you are infringing on the copyright they have over the necklace.

The images you provided don't show up on my computer, unfortunately, but I can still answer generally.

Under Section 101 of the Copyright Act, original jewelry designs are considered “visual art”. This means that the law would generally allow them to copyright this. If it's not with the copyright office, it only means they can't sue you for infringing, but once they do file it, then they can sue for it in court. So my recommendation is to get any original designs you may have copyrighted ASAP.

Please let me know if this has answered your question fully. My goal is to ensure you’re satisfied with my service completely. Feel free to return here with additional questions or comments if you need more information, and thank you sincerely ***** ***** question and for using Just Answer as your source for legal information.

Customer: replied 10 days ago.
i know this sir, but i want to know if this will particular be copyrighted?
Customer: replied 10 days ago.
It is impossible to copyright such design?
Customer: replied 10 days ago.
Copyright registration will simply reject the application as it not original idea
Customer: replied 10 days ago.
his design he is selling can i get it copyrighted? This does not prove it is owned by him?

Thanks!

I don't have the ability to tell you whether it would be copyrighted for sure. Only a copyright agent could give you any idea and you won't know until and unless you submit the copyright. If it's not an original idea, then you can presume that the design cannot be copyrighted if it's not original.

Customer: replied 10 days ago.
How can I contact a copyright agent?

Sure thing! So the only way you can do that is if you apply for the copyright.

No one can tell you for certain whether this can be copyrighted unless you apply for a copyright.

If you don't believe it can, and since I don't believe it can, it may not be worth your energy or money to do so.

I can completely respect that you'd want to know ahead of time, but it won't be possible In my best legal opinion and in my educated opinion, the answer is no.

Customer: replied 10 days ago.
Oh see this is all i wanted to hear sir! If you are saying it can be copyrighted then we are both right in this case
Customer: replied 10 days ago.
According to copyright.gov
Copyright does not protect:• Ideas, procedures, methods, systems, processes, concepts, principles, or discoveries• Works that are not fixed in a tangible form (such as a choreographic work that has not been notated or recorded or an improvisational speech that has not been written down)• Titles, names, short phrases, and slogans• Familiar symbols or designs - a stethoscope is a familiar symbol/design, and so is a heart.• Mere variations of typographic ornamentation, lettering, or colouring• Mere listings of ingredients or contents. For more information, see Works Not Protected by Copyright (Circular 33).I can see at least three things in the list from the copyright.gov here that fits the description of the necklace design.2. Ideas and discoveries: This necklace was not his original idea, this competitor come across this on a Facebook ad, I know this because I follow his thread on this particular product of necklace ( at that time he was selling a different stethoscope necklace). So, he created his own design based off ideas and discoveries he conducted. So, a copyright can most certainly be accepted as it is not his original discovery or idea, he is basing it off his discoveries. So, based off the information the copyright.gov states he cannot even be accepted for a copyright registration. Am I Correct or Wrong?3. This necklace clearly shows familiar symbols such as a heart shape, stethoscope, electro graph, these are familiar symbols or designs. Am I correct or wrong that these are classed as familiar symbols or designs.
Customer: replied 10 days ago.
It can not be copyrighted ***

I hear you! I can't 'see the image so I can't tell you with any certainty whether it would be copyrighted or not. Based on what you provided though, although designs can be copyrighted, it must be original.

Customer: replied 10 days ago.
I did tell send images on the links provided? Did you not virew?

I used the links, but the links do not let me access the images. In any event, my opinion doesn't really change in this case based on my understanding of the law and based on what you provided.

Did you have any other questions for me today?

Customer: replied 10 days ago.
What is classed as original?

It means no one else has the same design.

Customer: replied 10 days ago.
if competitors are selling it i can see atleast 6-7 competitors selling this? So that means it is not original?

Not quite. Just because others are selling it doesn't mean it's not original. People can rip off someone else's design so if you got the design from someone else, it's not original to you, so you wouldn't be able get it copyrighted, but the creator of it can.

Customer: replied 10 days ago.
Okay well he can not claim a DMCA claim on this necklace to take down a product? It needs to be registered first then a successful take down would take place right? I know he can still claim but i can just appeal the counter notice if he does not have copyright infringement right

So he can make a DMCA claim, but he can't see it through if he doesn't have the copyright to it. The takedown would only be temporary and your appeal would force them to have it terminated.

Customer: replied 10 days ago.
What about common law?
Customer: replied 10 days ago.
What does that protect?

So it allows people limited rights to enforce their copyright, but if they want to sue, they must have their copyright registered with the copyright office. So really a common law copyright is meaningless.

Customer: replied 10 days ago.
again if they do the DMCA claim even with common law it still needs to be registered regardless of the common law ? As you said it is meanngless?
Customer: replied 10 days ago.
Registered to take further action to take down product completely

Correct. If they were going to do the DMCA takedown for the design, they would have already, so in the end, I wouldn't even worry about it as worrying about this will just cause you to lose sleep and valuable time on other projects.

Customer: replied 10 days ago.
Thanks so much my friend! I have been stressed for weeks to get the bottom of this. Yes exactly but they did send a DMCA for infringement of their photos which I completely understand

You bet! Thank you for trusting JustAnswer with your question. If you have any additional concerns or need me to clarify anything, please let me know. I am happy to help.

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Customer: replied 10 days ago.
I did not reply back to the encounter as it was not my images which I understand now..

Oh it's no problem! You described this issue just fine:)

Dolan Williams and other US Law Specialists are ready to help you
Customer: replied 9 days ago.
Hey i sent another question to you

Thanks! I'll take a look.

Customer: replied 9 days ago.
Hey did you get it

Thanks! I did not; you have to request me directly for this. If you post it to the main question thread, another lawyer will have to take over.

Customer: replied 9 days ago.
Can you request

Thanks! I can't request you; you'll have to request me. :)

https://www.justanswer.com/law/expert-dmwesq/

Customer: replied 9 days ago.
Here
Customer: replied 9 days ago.
I did it
Customer: replied 9 days ago.
Please accept
Customer: replied 9 days ago.
If you can not see then