Looking for advice/direction on potentially tricky issue (lawyer, buy)

Advertisements

When we moved here, my girlfriend started a locally-based business selling hand-made pet toys. She started with ferret toys & evolved to cat & dog toys, selling both at local fairs & through a couple online sites. She's not getting rich, but she enjoys making the toys & it provides a supplemental income. Some people just buy the toys for their kids (stuffed animals/etc).

Now she's been contacted by a (video) game producer claiming she's in violation of their copyright & IP because of similarities they claim in appearance between one of her toys the characters in their game. They found it in one of her online stores & want her to stop selling said item.

Here's the rub: She was selling this (and can prove as much) BEFORE the game was ever released. She created it. Being stuck on principles like I am, I suggested she not let them bully her & turn the tables on them - given that they opened the door by starting this. She plans to respond, but I told her not to be in any rush so she can think this through. As long as she can establish she had her product in the marketplace before this game was released, I'd think she has grounds to ask them for royalty payments or licensing fees. I've seen too many companies try to legally bully others & try to claim copyright or intellectual property just because they're selling something, when in reality they've borrowed from someone else.

Here's my request: Does anyone have someone to recommend (maybe a copyright attorney or similar) with whom she could speak? (DM me if you do.) I'm not asking for legal advice & wouldn't expect any, but would welcome common sense layman's advice. Any direction on the best way to proceed would be welcome as well.

When all is said & done she could just stop selling the item online, but I feel that would be giving in since she's done nothing wrong. Worst case, that's probably what she'll do, but I think this is worth pursuing. Thoughts?

Thanks for the replies & advice so far. A couple more pieces of info & questions:

1) Does it matter if she hasn't organized her business as an LLC? I'm thinking mostly of protection of personal assets in case they try to bully her legally. There's not a lot of money involved with her business, but I'd hate for them to come after her personal assets.

2) Would it be reasonable to expect an initial consultation with a lawyer without a fee? Is it common for lawyers to take this type of case on a contingency basis? (I guess that would be determined based on initial discussions, but there may be $$ involved if it escalates & the company has deep pockets.) Some cases mean a good chunk of money for lawyers when they're taking 1/3 of a settlement - not sure if there could be a lot of $$ in this case. When all is said & done, if it's going to cost a good amount of money out of pocket we'll likely pursue it ourselves.

It looks like what led to this is the company's trying to launch their own line of stuffed animal toys. My guess is they're trying to assert copyright & so forth so they can justify launching these products as their own. My girlfriend would likely be a threat as she's already been doing this & the company sees similarity between her product(s) & what they're trying to launch.