Q: Mastercard claimed copyright infringement against ooki.com because of the 2 interlocking circles.
While theirs is 2D, other colors, transparent, has no shadows and is horizontal, Ookis' quite different. Can they really do that?
They already lost this once against cinkciarz.pl. The Polish company claimed that Mastercard should never have been allowed to register them since they were too banal and simple and insufficiently distinctive.
A:
You might be able to defeat their claim. However, unless you know how to effectively draft an opposition legal letter and have a deep knowledge of U.S. Copyright law and case precedents, it's going to be very difficult for you to convey the strength of your position. The case you cite was adjudicated in the EU which has different copyright laws, so this is not a guarantee that you would prevail in a U.S. Court. Also, if you read about the case, you probably saw that the Polish company had to go through numerous appeals before they won the case.
You are best off, firstly, by having a U.S. IP attorney assess your legal exposure before deciding how to proceed. Simply relying on an EU case precedent, especially without carefully examining the facts upon which that case was based, is not an effective strategy. In any case, by making a strong written response to the infringement notice prior to MasterCard filing suit, you will potentially save yourself substantial legal fees if you effectively convince them not to proceed with filing a lawsuit. Just take a look at your potential liability under Title 17, U.S. Code, Section 504. You may be found liable for up to $30k for statutory damages, and up to $150k if your violation is found to be "willful" by a Court. Plus disgorgement of lost profits. Are you sure you want to rush into this blindly without intelligently assessing your position under U.S. law?
Consider hiring a professional IP attorney to counsel you and draft your responsive pre-suit written communications. Rest assured that MasterCard has excellent attorneys who are preparing their case, regardless of what you may have read regarding the results of previous cases.
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