I’ve been hearing a lot of chatter on the internet this past week about copycats on Etsy. These are people who look at someone else’s designs, make them, and then sell them as their own – often at a price that undercuts the original designer.
So what can you do if someone steals your designs? I think the first step is understanding the ways your designs are protected. One of the best resources for understanding intellectual property is The Entrepreneur’s Guide to Patents, Copyrights, Trademarks, Trade Secrets & Licensing
Trademarks
Trademarks cover the source of the product, not the product itself (even though we might call a product by its trademark name). One example is that Twinkie is the source of a snack cake (ie. Twinkie brand snack cake). Coca-Cola is the brand of soda, etc. What this means for you is that you can trademark your company name, logo, or product name – but trademark does not protect your designs themselves. There is another category of trademark called trade dress – this covers the colors, shapes, and styles of a brand (such as the red & white of Coca-Cola). Trade dress could extend to the products themselves, but this is very difficult (and expensive) to prove.
Copyright
Did you know that you can’t copyright useful things? Copyrights are meant to protect expressive works. However, there is a blurry boundary between creative and useful objects and copyright can cover certain aspects of a useful object. According to the book, “Copyright is best suited for art that appears on functional objects such as a design or ornamentation that is not part of the physical, functional structure of the object.”
I think this is where it gets confusing for handmade objects. Most makers would consider their works as creative expression, and therefore covered by copyright. But if you create a pair of earrings, which are a useful object, than how does that fit in? You may be able to protect your unique surface design through copyright, but that innovative ear-wire system probably isn’t covered.
The minute a work is created, it is technically covered under copyright. But to further ensure protection, you can register your work with the US Copyright Office. You must have your design registered in order to take legal action against an infringer. Because it only costs around $30 to register a work, its worth doing for a design you want to protect, just to be on the safe side.
Design Patents
Another option that more clearly protects your designs for a useful object is a design patent.. “Design patents are best suited for protecting the shape and appearance of useful objects such as perfume bottles bottles, furniture, cars, and appliances, which have designs that have commercial and economic value.” And while easier to apply for than a traditional patent, design patents are still difficult to obtain and expensive. Based on the costs on the PTO website, it would cost over $600 dollars to apply for a design patent, plus over $3,000 in maintenance fees over the next 12 years. And those are the reduced rates for small businesses! And you must apply for a design patent within one year of an object being sold or used. Financially, a design patent isn’t worth it for a one-off or limited edition design. They are really meant for a product that you plan to product in large quantities and sell for a long time. (Or that you plan to license to another company to manufacture.)
Unfair Competition
After reading most of the book, it did seem like there were still a lot of opportunities to have others steal your ideas or designs. Fortunately, there is one more method of legal recourse – which is unfair competition. This affords some protection for someone who is copying aspects of your design in such a way that (while not covered under copyright, trademark, or patent) seeks to confuse the public on the identity and source of the product. This should offer some means of protection over someone trying to co-opt your entire brand identity as their own. (At least I hope this is the case).
With any of these forms of intellectual property protection, it is up to you as the maker and designer to constantly police for infringers. If you find an infringer, it is also up to you to legally challenge this infringer, which can take a lot of money. Sadly, sometimes with IP, its the person with the deep pockets, not the person who is right, who wins. If someone does steal one of your designs, you need to weigh the financial outcome when proceeding. Is it worth it to spend more in legal fees protecting the idea than you (or the infringer) would have made selling the product?
So what can you do?
Etsy does have a policy in place if you believe another seller is infringing your designs. This gives you the opportunity to report possible copyright infringement to Etsy. But the policy is very specific, and because any costs could come back to you, it’s a good idea to consult a lawyer before contacting Etsy.
More importantly, as makers, we need to keep the conversation going about what is appropriate. It is NEVER ok to use someone else’s designs, and certainly never ok to sell that design as your own. We should also make sure that we are continually supporting those makers with the original ideas, and watching out for each other. While legal recourse can be a difficult path to pursue, we should work to create a community of trust where everyone understands that it is unacceptable to profit from someone else’s ideas.
Note: Parts of this post originally appeared on my other blog.
Good post! I also think an interesting topic to bring up is the use of patterns. I see a lot of items being sold on etsy that are obviously from a pattern, i.e. Amy Butler bags.
Incredibly helpful information. Thanks for summarizing it all so clearly!
Sherry – with something like Amy Butler’s patterns, there really is no grey area. It specifically states both on the pattern and on Amy’s website that the patterns are intended for non-commercial use only. So you can make them for yourself or to give as gifts, but not to sell. But it would be up to Amy and her company to police that and keep track of sellers on Etsy who are copying her patterns.
what about protecting the name of your products? That is how to I prevent others from making a mouse cat toy out of old socks and calling them darn!socks?
Great summary of such useful information. I have a hard time when people claim to own an idea, so much of the crafts of today have been done for MANY YEARS. I am a glass artist, and basically you melt the glass (torch, kiln or glory hole,) you form the glass (many different ways to do so) – there are 1000s of techniques and each artist has their own style or what they add to their design post heat – but there is definitely going to be some overlap, somewhere. There is a glass artist applying for a patent on cutting & fusing recycled bottle glass. I don’t understand how she can think that she “owns” the procedure. It has been done forever. I know this is different from people deliberately stealing and copying other people’s work. I will go to a show and there may be 5 other glass artists with jewelry, and I know that mine stands out as being different, and I guess we just need to continually develop and work to stay true to our art. Sorry to rant…..
melissa – you should apply for a trademark to protect the name of your product!
Leslie – in order for a patent to be approved, the idea must be non-obvious. Since so many people are doing a process like that, I can’t imagine the process would hold up in a dispute. (but again, sadly it sometimes comes down to who has the deeper pockets)
Great summary and a book that I’ll be ordering tout de suite – using your affiliate link! 🙂 Thanks for pointing out another invaluable resource.
good post, thanks! i was recently notified by someone that one of my knitting patterns was being used by a few sellers on Etsy – they were creating neckwarmers using my design (it’s very distinctive) and selling them. frustrating since I would have my own shop refreshed on Etsy if I weren’t spending my free time WRITING PATTERNS!
Do you know about how much it costs to trademark your business name?
Thanks for summorizing the subject for me!
Jenelle,
It cost me $500 on LegalZoom.com to trademark my business name and logo. It was very easy and I highly recommend LegalZoom for a lot of things (we also got my husband’s will done there). The trademark took several weeks to be registered, but now I have a nice framed certificate good for something like 10 years after which I have to remember to renew the trademark (the gov’t doesn’t send you a reminder).
After you’ve applied for the trademark (sent in all your legal paperwork), you can use the TM next to your business name. Once you get your registration certificate, you can change the TM to an R meaning it’s a Registered Trademark.
(You’ll also get junk mail after you apply for a TM from companies wanting thousands of dollars to protect your TM overseas and other silly stuff. Just laugh at them and ignore them! They’re essentially spam.)
Good luck!
Ginger
I agree with Ginger strand – Legalzoom is an easy way to file for trademark protection yourself. And like she says the govt doesnt send one a reminder, however there is one site and I happen to be associated with it (so don’t take my word for it, check it out yourself) is http://www.Trademarkia.com that helps business owners such as Ginger above to keep a tab on all the deadlines being expected with their trademarks – such as when is a foreign filing deadline – which incidentally is the six month window generated from the date of filing your trademark – it helps a business owner claim priority to the date of filing in one’s country should they decide to foreign file for their trademark within 6 months and yes it has to be the same mark 🙂 And no it doesnt cost thousands of dollars, quite inexpensive and can be done by the biz owner themselves.
Apart from that there is a great forum i have used for patent advice (peers only not legal stuff) that is PatentExpress.com and you have great videos all done by a patent attorney, who dispenses how to avoid pitfalls and Megan sometimes it just needs some help not deep pockets though I do agree with you that mostly it does come down to that 🙂
That’s it folks – loved looneytunes 🙂
We own all the rights and name of Our Lady of America which has been given to one of our Nuns years ago by our Blessed Mother. To protect this Devotion and keep it safe we also own trademark and copyright to statues, medals, booklets, pictures etc. and everything else that is called Our Lady of America. We have three Con Men that are stealing the name, making statues, medals, booklets etc. on Our Lady of America and selling them to make money. This is a very sacred Devotion and they are using it for their own benefit. They have no rights whatsoever to be doing this and they well know that they are not allowed to. What exately do we do? Eventually if they do not stop, we will have to take them to court. I would deeply appreciate your comments. Thank you very much for reading this. Sister Therese