Etsy offers a great opportunity for creators to sell all sorts of creative wares
But it is important to make sure that what you sell is legitimate to avoid the risk of a trade mark infringement claim.
Words by Dr Martin Douglas Hendry
Creators are able to find success on Etsy (and other similar platforms) by selling goods which tap into their creativity.
Despite this, Etsy sellers in their enthusiasm can often fall foul of trade mark infringement claims, as they step on the toes of established and protected brands.
Trade mark law aims to protect the unique identity of businesses, products, and services by preventing others from using similar or identical trade marks.
On Etsy, it is important to understand how to avoid trade mark infringement in order to protect your business and maintain compliance with your legal requirements.
The following are some steps that you can take as a creator or business on Etsy to avoid trade mark infringement - as well as some best practices (and consequences if you fail to do so!)
Steps for Avoiding Trade Mark Infringement on Etsy
- Avoid brand use in the first instance. First things first. The best way to avoid trade mark infringement is to make sure that what you're selling does not make use of any pre-existing branded properties. As such, if you're looking to create Harry Potter robes, or T-Shirts and accessories with Pokémon designs, you may want to think again and create something original. Part of the test for trade mark infringement is whether the use of something causes enough confusion for the buying public to be confused as to whether the goods are official and have originated from the brand owner themselves. If there is any doubt, it is best to avoid using characters or include brands where there is a shred of possibility that it might confuse a buyer.
- Work around the use of branded elements. If you are absolutely set on creating something that makes reference to a preexisting franchise or character, try to create a version that is generic and whilst familiar does not use any brand elements specifically. So if your shop is based on making replica wands from the "Harry Potter Universe" - you might look to make a range of "Young Wizard Wands" which may be familiar and enticing to fans of Harry Potter, but do not explicitly reference them or characters from the franchise.
- Include a disclaimer. It may be beneficial to include a disclaimer in your listings, specifically stating that you are not affiliated with the property that the audience might confuse you with. Whilst you should always diverge from brands where there might be confusion... explicitly stating that you are not affiliated with a brand and dispelling confusion should only work in your favour should a dispute emerge.
- Collaborating with Etsy and rights owners. Finally, you can seek a license or permission from the rights holder to create goods which use trade marked brand elements. Whilst it is unlikely that this is achievable when it comes to significant brands who themselves produce a host of different merchandise - smaller brands may be interested in collaboration and agreeing on an arrangement where you can sell branded goods in exchange for financial compensation.
As below, in the best practices section, it is always best to err on the side of caution when it comes to trade mark infringement, and as such, if you are unsure it is best to speak to an intellectual property professional, as they will be able to give you an unbiased view as to the risk involved in your business.
Best Practices for Avoiding Trade Mark Infringement on Etsy
So now we have some steps to take to avoid trade mark infringement on Etsy, what are some best practices to undertake in the first place when operating an Etsy store that can help out too?
- Creating original and distinctive products. The best way to avoid trade mark infringement is to create entirely original goods in the first place. It might be new characters or a novel brand - but whilst you don't benefit (initially) from the recognisability of an established brand... By building a reputation and protecting these yourself, you can become the owner of a set of attractive brand elements which draw customers to your listings and that others are not able to use. To do this you need to create something original and then protect it using intellectual property law. More on that below.
- Avoiding using trade marks in a way that is likely to cause confusion. There are some very limited ways that a creator can use someone's trade marks in their own creations, but it is a very fine line and one where the risks often outweigh the rewards. As above "confusion" is key when it comes to trade mark infringement. If a single buyer may be confused by your listing to the point where they think what they are buying may be official - there is risk that a trade mark infringement claim. It should be abundantly clear to anyone visiting your listings that what you're selling is not affiliated to, or akin to official goods. To make sure that you don't cross this line it is important to...
- Seek legal advice if unsure. Every trade mark infringement case is unique to the conditions taking place. There are many lines that small business sellers on Etsy will not want to cross, as a trade mark infringement claim can cause some serious consequences (more on that below). Ultimately, legal advice can be the ounce of prevention that stops the requirement of a pound of cure later (which is to say, avoiding problems in the first place is much cheaper than dealing with them when they're a more serious problem). Get in touch with our team by clicking the button below if you're concerned about trade mark infringement, sell unofficial branded good or have received a trade mark infringement claim.
Consequences of Trade Mark Infringement on Etsy
Finally, it is important for Etsy sellers to be aware of the consequences that may arise from trade mark infringement on that platform (or similar platforms).
- Legal liability for damages. If found guilty of trade mark infringement, you may be held legally liable for damages. Ultimately, these are calculated within a legal claim to determine how much loss the brand owner has experienced as a consequence of the infringement. Typically in correspondence these will be proposed damages, but should a claim go on, it will be determined by disclosure and a judgment in the courts. This can often be a significant amount and highly impactful for small businesses.
- Reputational harm. Trade mark infringement can harm your reputation and brand image. Loss of trust with your buying audience can lead to a decrease in sales after the infringement claim has been settled or resolved. Ultimately, it is in a seller's best interests to operate as legitimately as possible in order to maintain their reputation.
- Removal and even destruction of infringing items. Infringing items may be removed from the Etsy platform. In addition to this, any trade mark infringement claim may also seek handing over of the infringing goods to the brand owner and even their destruction. For those who have spent considerable time and money on stock - this can mean a significant loss of resources should a claim not go their way.
- Loss of access to Etsy platform. Finally repeat or severe violations of trade mark law may result in the loss of access to the Etsy platform. This is obviously a significant problem for those who make a living or side hustle on the platform as they would have to find an alternative platform to sell on, as well as build up their online presence from scratch.
In conclusion, it is important to understand how to avoid trade mark infringement on Etsy in order to protect your business, maintain legal compliance, and maintain the trust of your customers. Adhering to best practices and seeking legal advice if unsure can help you avoid trade mark infringement and the consequences that come with it.
If you are experiencing a trade mark issue and would like some assistance, get in touch with our team by clicking the button below.
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DISCLAIMER: The content within this post is for educational purposes only and does not constitute legal advice. Virtuoso Legal does not take any responsibility for those that use this information and waives any liability for any resulting effect on your personal or commercial circumstances.