Brain Tree Games LLC
4860 Cox Road Suite 200
Glen Allen, VA 23060
May __, 2023
Craig A. Ash*
Oyen Wiggs Green & Mutala LLP
*Law Corporation
Tel: 604.669.3432 ext. 9045
Email: cash@patentable.com
CAA/gwl
Dear Sir/Madam By Email
RE: Copyright Infringement
Your Ref: X316 0004/CAA
This letter serves as my formal response to your letter dated May 10, 2023. In the said letter, you alleged inter alia, that I breached your company’s copyright in the “Studiostone Instructions”, “Studiostone Photos” depicting a hand, and “Studiostone Packaging”. You also allege that personnel from our company approached your personnel and distributors and inquired whether they would distribute your products in India, United States and Canada. Lastly, you allege that we copied aspects of your products in our products.
- None of our products violates your copyright
It is our respectful position that none of our products and the packaging thereof violates any of your copyright. We appreciate your observation about the design differences between the Brain Tree soapstone carving kit packaging and the Studiostone creative box. As you correctly noted, the packaging design is an important aspect of a product’s presentation and can influence consumer buying decisions. We agree that the Brain Tree Packaging is distinct and unique, reflecting our brand identity and our focus on teaching kids how to carve and create. In that light, we maintain that Brain Tree Games Total packaging design is different as the image below:
Besides, not all reproductions of a work constitute copyright infringement. Section 3 of the Canadian Copyright Act stipulates that the copyright owner is the sole entity who may rightfully reproduce the work or a substantial part thereof. The key word here, however, is “substantial”. Excerpts of the work may be replicated without penalty. The assessment of whether the replicated portion is “substantial” depends on the particular work in question and can involve several factors, including the size of the reproduced excerpt compared to the size of the entire work and whether a critical portion of the work was reproduced rather than a more negligible part.
Importantly, independently producing an identical or similar work without copying the copyrighted work does not constitute copyright infringement under Canadian law.
For the said reasons, it is our considered view that we have in no way violated any of your copyright.
- The soapstone curving technique is not subject to copyright protection
In CCH Canadian Ltd v Law Society of Upper Canada, [2004] 1 S.C.R. 339, 2004 SCC 13, the Supreme Court ruled that for copyright to subsist in a work it must be original and more than a mere copy of another work. What is necessary is an exercise of skill and judgment – though not necessarily uniquely creative judgment – that involves intellectual labour.
It is important to note that while the technique for carving soapstone may be similar globally, each carver’s end result is unique and different. Brain Tree Games’ manual is unique and was created by their own design team, without using any photos or substantial parts of Studiostone’s instructions. Soapstone carving is a traditional art form that has been practiced by people around the world for thousands of years. The basic techniques of soapstone carving have remained largely the same over the centuries, with carvers using simple hand tools to shape and refine the stone. One of the reasons why soapstone carving techniques have remained consistent is because the stone itself is relatively soft and easy to work with.
Unlike other types of stone, soapstone is not as brittle or prone to breaking or chipping, which makes it an ideal material for beginners to work with. When it comes to soapstone carving, there are a few basic techniques that all hobbyists around the world would use. First, the stone is typically roughed out using a rasp to create the basic shape or form of the sculpture. Then the soapstone is usually polished using a variety of sandpapers or polishing compounds to achieve a smooth, glossy finish. While these techniques may be similar across different cultures and regions, individual carvers will still have their own unique style and approach to soapstone carving. Each carver will bring their own creative vision and skill to the process, resulting in a final product that is unique and one-of-a-kind.
Further, we firmly understand the purpose of an instruction manual is to educate and guide users on how to use a product or perform a particular activity. In this case, the Brain Tree Instructions were designed to teach kids how to carve soapstone and help them develop their creativity and skills.
For the said reasons, we maintain that our instruction manual is an original work and not a copy or reproduction of Studiostone’s instructions. Our instruction manual was created independently and based on our team’s experience and expertise.
- We never made any inquiries and requests for distribution to Studiostone
Brain Tree Games LLC (“Brain Tree”), is familiar with Studiostone, its soapstone carving kits and the Studiostone Packaging, Studiostone Instructions and Studiostone Photos. In this regard, Studiostone Co-Owner at Studiostone Creative: Oliver Harwood, requested and asked if it is possible to source soapstone raw material from India. And later declined the offer as the quality may not be up to the standards in INDIA. It is important to note that Brain Tree has a clear policy of only promoting and selling their own brand’s products in any marketplace globally. Therefore, any inquiries or requests for distribution of other brand’s products, such as Studiostone’s soapstone carving kits, would not be in line with Brain Tree’s business practices and policies.
Besides, it is common for companies to approach distributors when launching new products into the market, and Brain Tree is no exception. However, Brain Tree Games has not tied up with any sales distributor who is attached with Studiostone’s.
In conclusion, we maintain that Brain Tree Games takes intellectual property very seriously and has followed all legal requirements to ensure that its products do not infringe on the intellectual property rights of any other party. Furthermore, it is not uncommon for products in the same industry to share certain similarities in design and function. As I previously explained, soapstone carving techniques have been used by hobbyists globally for thousands of years and have evolved over time, but the basic principles remain the same. The instruction manuals and packaging may look similar because they both seek to teach the same basic carving techniques and concepts.
Brain Tree Games is committed to providing high-quality and unique products to its customers while respecting the intellectual property rights of others. We believe that there is plenty of room in the market for multiple companies to offer soapstone carving kits, and we are confident that our products stand out on their own merit.
In that regard, we respectfully
Yours truly,
_________________
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