Copyrights vs Trademarks – What’s the difference?
Sometimes people use the terms “copyright” and “trademark” interchangeably but in reality they protect different types of intellectual property. They were created to protect businesses’ or individuals’ original work. I like to think of copyrights as protecting things that you CREATE such as:
- art
- movies
- songs
- books
- poetry
- software
And trademarks protect your brand such as:
- logo
- brand name
- tag line/slogan
- symbol
What this boils down to is you cannot use another person or company’s copyright or trademark to make a profit in your business. It is possible to petition the copyright or trademark holder for certain rights in the form of a license but in many cases these licenses are cost prohibitive for small businesses. Stores like Walmart or Hobby Lobby sell Grinch products because they have purchased the license. However, the license does not transfer to you as the buyer. Just because you purchased it does not mean you can do whatever you want with it. You may use it for personal use but you may not resell it for profit without a license or permission to do so (this is why yard sales are usually ok – you’re selling for LESS not MORE).
Common copyrights and trademarks for Christmas items
Some of the most common copyrighted and trademarked items that I see on Etsy and craft shows around Christmastime are images and/or phrases from:
- Grinch
- Elf on The Shelf
- Frosty
- A Christmas Story
- Home Alone
- National Lampoon Christmas Vacation
- Hallmark movies
- Elf movie
- Disney
This means don’t make a product that includes the “likeness” of any of these popular images (whether purchased or made yourself), don’t use the brand names in your products or your keywords, and in many cases you cannot use the famous quotes from the movies. When I was first starting out I didn’t know the rules and I made a wreath that had a generic elf on it. Even though the elf was just a normal elf I used “Elf on the Shelf” as a keyword in my tags to try to get more views. The Elf on The Shelf company found it, contacted Etsy, and Etsy removed it from my shop. I was thankfully able to relist it as soon as I removed that wording from my tags. There’s a lot to learn when you’re first starting out!
What are the consequences?
The consequences may vary depending on the company and how many items were created or available for sale. Sometimes all that happens is that they make you remove your listing on Etsy or take the item off your website. But these companies can (and do) often go as far as imposing fines or pursuing legal action. Even if they just ask that an item be removed from your Etsy shop you will likely get penalized from Etsy. Notices of copyright infringement usually result in Etsy reducing your visibility on the platform for a little while. If you get too many notices your shop could be shut down for good and you won’t be able to open another on the platform ever again. Some companies are more proactive than others and some have a bigger budget for employing people to search out their copyright and trademarks.
Should you report these products if you see them?
Etsy will not automatically remove products from their platform unless they are contacted by the legit copyright or trademark holder. They do not know if the seller holds a license or even if the product has a current copyright/trademark. Etsy is not the enforcer or the judge and jury. If you report items to Etsy they likely won’t be taken down unless you are the copyright or trademark holder yourself. I wouldn’t worry too much about what other sellers and shops are doing and focus on your own products. Stay in your own lane :).
Where do you go to research?
The best place to research trademarks is to go to USPTO.GOV and search the TESS database. If you enter in a word or words into the search it will show you if there is a “live” or “dead” trademark and for which specific type of items.
So what can you make?
If you’re confused about what you can make, the best thing to do is be original. Don’t create anything that can be confused with a product that is already out there and don’t use words that relate to someone else’s brand. Labelling a product as “fan art” or “inspired by” usually does nothing if it can be mistaken for or highly resembles the original. Think of it from the other side as well – if someone were copying your intellectual property you’d be upset about it too.
Staying away from copyrighted and trademarked products is just one way to make sure you run your business legally and with integrity. If you want my full course on how to handle your finances, get your business legit, and prepare for tax season you can find it here –> https://handmadesellersuniversity.laurenkilgore.com/taxprepforEtsy.
