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It's So Tempting! Trademark infringement 101

Show support for your favorite franchise without any legal (or ethical) stumbles
fandom is a way of life

It’s so tempting.

One day you take your six year old niece to see Frozen and she sings “Let It Go” all the way home. That night you stamp a little circle with those words, add a snowflake charm and put it on a chain for her as a birthday gift. She loves it. She loves you. Her mother, your sister, asks you to make ten little Frozen necklaces for the birthday party. You do it. All the little girls love their necklaces.

A tiny entrepreneurial voice inside you whispers “There is a market for this.”

And there is a market for this. It’s called Etsy. You open your shop. You make a dozen different stamped pendants with words from the movies that your niece loves. You photograph them and put them up in your shop. You get sales! And then you get a letter from Etsy. Several of your listings have been removed due to copyright infringement.

What’s the deal? There are dozens of shops that sell items similar to yours. You know because you checked. Why was yours taken down?

mother of dragons
HBO holds to the trademarks to "Game of Thrones" and "Daenerys Targaryen," as well they should, but "Mother of Dragons" is not registered with the trademark office. I drew the dragon myself, and etched the metal. 

Well, confession time, this happened to me. I thought I was okay. I’m an artist and an illustrator and I would never use the image of another artist. I wasn’t using titles or trademarks either. I had a phrase on a pendant that was in a key scene from the Lord of the Rings movie. I knew that I couldn’t put "Lord of the Rings keychain" in my titles or tags, but I did use the initials  "LOTR."  A complaint had been registered and Etsy took down my listing.

Etsy does not check for trademark or copyright infringement. The owner of the copyright has to contact Etsy and Etsy responds to complaints. As it turns out, "LOTR" is a registered acronym. After three complaints, Etsy bars you from having a shop or even shopping on the Etsy site. You can learn more about Etsy copyright infringement rules in their Seller's handbook. 

It's easier than you think to check if a word, phrase or image is trademarked. If you visit the website of the United States Patent and Trademark Office, you can search the trademark database (TESS). It's easy to use, and you can see who holds the trademark to the phrase or image. You can always reach out to the owner for permission, if you like. Many trademark owners may be open to a conversation about licensing their property to you -- you never know if you don't try! 

But if you doubt whether something is acceptable to use, DON'T. Think of something else. Say it in another way. Have confidence in your own creativity and don't feel the need to copy someone else's work. 

Any true fan of Arthur Conan Doyle will immediately recognize the significance of this piece, even though I did not use the name of a certain detective or his faithful sidekick.

I know that it often seems unfair. There are tons of shops with Minnie Mouse beer coozies and Yoda diaper covers. Don't worry: large corporations (like Disney) do periodic sweeps and those infringers will be cited. Don’t let that be you. Check everything that isn’t your very own creation. Some are surprising. You can’t use the phrase Tiffany Blue or Country Girl because those are brands. You can’t get around it by saying "inspired by."

I combed through my shop, FenFare, and removed anything questionable. The surprise was that I did as well or better with my own creations. And it’s so much more fun and satisfying. 

rpg gamers
I have found a niche making pieces for people who play certain role playing games, like Dungeons & Dragons. I use words or phrases that I know they will understand, even if I don't necessarily! 
Find common expressions that will make people laugh, or that will strike a common chord with a specific audience. 
FIND MORE: metal , pendants

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