Tuesday, October 30, 2018

Hey, Calder Foundation: This'll Only Take 2 Minutes of Your Time

"Where are you now, Alexander?" 

I used the words "Calder-inspired" to describe the genre of my mobiles on Etsy.
The Calder Foundation claimed trademark infringement.
Etsy deactivated 44 of my listings.

Apparently, the word "CALDER" is a registered trademark of the Calder Foundation.
And the Calder Foundation doesn't appreciate others using its mark.
Even if the use indicates the inspiration another artist (like me) finds in Alexander Calder. And especially if another artist (like me) uses the term on the web to help people find contemporary mobiles in a similar style of those that Alexander Calder made.

So - even though just about every other shop that sells modern mobiles on Etsy uses the word "Calder," "Calder mobiles," and even "Not Calder" in their listing tags - I was compliant.

Within two hours of receiving the deactivation notice from Etsy, I removed any mention of Calder from my shop, except a disclaimer that reads:

"Please note: I am in NO WAY AFFILIATED with Alexander Calder or the Calder Foundation. Calder is a trademark of the Calder Foundation. All artwork found here is © 2018 Mark Leary. All Rights Reserved."

Clear enough and problem solved, right? Wrong. 

Perhaps the Calder Foundation thinks its acceptable to materially damage people who draw inspiration from its namesake? Because, although its legal representatives thanked me for removing the mention of Calder from my shop, it's been a week since that time and they still haven't withdrawn their infringement claim.

See, Etsy won't reinstate my listings - and all the favorites and saves they've accumulated - unless the Calder Foundation officially withdraws its claim.

It must be a long, difficult process to withdraw such a claim, right? Wrong. A Calder Foundation representative needs to send an email that says "We withdraw our claim," and include my shop's name. That's it. You can see how simple it is here:
https://www.etsy.com/legal/ip-withdraw.

Maybe the Calder Foundation representatives don't know how easy the process is? Unfortunately, they do. Because, if they didn't already, I've sent them a number of emails that includes everything they need to submit the withdrawal.

Have they responded since initially thanking me? Not once. Not a single time. Not at all. 

I'm frustrated on a number of levels:

  • That, if there were a problem in the first place, the legal representatives didn't contact me, but instead had all of my listings deactivated.
  • The ongoing lack of response from the Calder Foundation; when did civility die?
  • Selective enforcement of its trademark (which is, by the way, a no-no with the U.S. Patent and Trademark Office who I'll be notifying next).
  • That other shops on Etsy continue to use the terms "Calder," "Calder mobiles," and "Not Calder" in their listing tags without repercussion. They'll be found by art enthusiasts looking for this genre of mobile on Etsy, I will not.
I, of course, will continue to make mobiles. And that brings me joy. Calder was an early inspiration for me, yes, but for over 10 years I've made my own original mobiles. I'll continue to tell anybody and everybody I meet who Alexander Calder is, how amazingly creative he was, how he lived a life filled with collaborations, and how he's inspired me. 

But I'm soured on the legal counsel for the foundation that bears his name. They've acted like bullies picking on the little kid when they had the opportunity to reach out and raise their concerns humanely to someone who celebrates and educates others about Alexander Calder every chance I get. I'm still hopeful they'll make this right, so we can move on.

It'll take less than two minutes to withdraw their claim, and yet somehow over the course of an entire week, they still can't find the time to do it? Sad and disillusioning. I'm sure they do lots of good work, but - in this instance - the Calder Foundation and its Trustees and Advisors (who I will also be notifying next) should be embarrassed by the way its legal counsel has acted here.

To be continued...

[Image © 2018 Mark Leary]

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