Troy, NY asked in Copyright and Trademark for New York

Q: Hello Lawyers. I have a question. Can someone copyright something if it looks like it a little?

Hello. I had some custom skins for planes made for my flight simulator. Half of the plane is black with a red outline at the end. Turns out a "company" that runs a virtual airline that has a copyright on their paint design in the flight simulator has kind of the same design, half of the plane is black with a red outline. I had no idea about the virtual airline and uploaded my design. A week later it was removed by the virtual airline. I did not copy their design. All I have is something that looks similar to there's. Are they allowed to take down my paint job with their copyright?

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Fritz-Howard Raymond Clapp
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  • Trademarks Lawyer
  • Beverly Hills, CA

A: The takedown was probably an assertion of trademark infringement, not copyright. (A tutorial on the difference is something you could get in a free consultation with an IP lawyer.)

If a prior user (owner) of a trademark (which could be a design of/on the goods) finds a confusingly similar use on the same goods by someone later on the scene, it could complain of infringement. The purpose of trademark law is to protect the public from confusion as to the source of goods and from counterfeits, and penalize the imitator.

Copyright, on the other hand, is the exclusive right of a creator of a work of expression (book, picture, song, etc.) to reproduce the work. If the work is exceedingly simple (as this is) it would be hard to prove that someone who came up with an identical work did so by copying rather than independently.

Whether the report and takedown was based on trademark or copyright claims, you should have had an opportunity to make a counter-notice or rebuttal.

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