Are You Infringing on Trademarks with SVG Designs In Your Shop
Ahh, this post is gonna be long. I suggest you get a cup of coffee, tea, water…whatever floats your boat because I really want to spend a lot of time here explaining what I’ve learned to help you. Plus I have changes to my SVG designs in regards to commercial use. You can skip down to the bottom to see those, but I suggest reading the WHY in this entire post.
Now, I know that change is hard for people. And, I get it, not everything in this world seems to make sense (especially these days). However, this topic of trademarks and copyright is important and vital to you and your business so you can keep your shop legal and make money.
I know you’re asking, “Holly, why are you talking about this now? Why haven’t you done your research before you opened shop?”
Because I’m an asshole that didn’t even think much about it. I do know copyright laws, but trademarks weren’t something I paid much attention to with regards to SVG files, and now I am. Can’t a person change?
What is a Copyright and Trademark?
Let’s talk for a minute about copyrights and trademarks. Please note that I am NOT a lawyer and this isn’t considered legal advice. You should speak to your attorney and get proper legal advice. Everything in this post is based upon research I have done. I welcome updates and corrections!
What are they?
If you want a long drawn out explanation read this post on the USPTO website.
Essentially, a trademark is a “word, phrase, symbol, and/or design that identifies and distinguishes the source of the goods of one party from those of others.” These would include brand names, slogans or tag lines and logo marks. They do not expire, however you are required to continue using it and submit fees at regular intervals to keep it live.
A copyright “protects original works of authorship including literary, dramatic, musical, and artistic works, such as poetry, novels, movies, songs, computer software, and architecture.” Works that are created by an individual can last for the life of the author plus 70 years. Anonymous work or for hire work can be protected 95 years from the publication date.
Basic Rules about Copyright and Trademarks You Should Know
- Never use anything copyrighted like quotes by someone else for monetary gain. I’m talking don’t put quotes on art prints, cards, etc. If the quote is super old, even then it may still be copyrighted. For instance, a person may be dead and gone, but their estate may still own the copyright to it.
- Primary works before 1920 are often now considered Public Domain. But you still want to be careful and do your research or use an attorney. Disney cartoons have a special copyright extension passed by Congress.
- Don’t use the names of famous people in your work for monetary gain, like an author to a quote. You can’t copyright a person’s name or business. But a person’s name may be trademarked. Avoid it if you can.
- Just because it’s already on the Internet doesn’t mean it’s considered Public Domain.
- You cannot use song titles, lyrics, anything from a movie or tv show, books, etc for monetary gain. These are considered copyrighted and you should avoid them.
- Dictionary definitions fall under copyright protection. Change up the words if you have to, but still watch it. Here is more discussion on that.
- Bible verses are a no-no unless they come from public domain bible translations. The Complete Bibles part of this page on Wikipedia will list out the ones that are public domain.
- Do not use any sports team or their colors if they are recognizable for profit. I see this being done on Etsy all the time. Just because you put a football and words about loving football on a design in orange and blue doesn’t mean the Denver Broncos won’t come after you! This includes the logo. They are trademarked.
- You cannot use the words Olympics or Super Bowl or their graphics/logo marks. Again, these are trademarked.
- Avoid using any military branch name. You may use words like military, soldier, veteran. But don’t say Army Life, Army Wife, etc. for profit.
- And, obviously, don’t use business names or their derivatives like Starbucks, Crayola, etc. I shouldn’t even have to find you a reference. It’s a business brand name and their products are trademarked.
If I didn’t list something above and you aren’t sure, you need to contact your attorney before you assume it’s okay. The folks at Indie Law have a good list for you if you want more.
How to Search for Copyrighted Work and Trademarks in Your Class
So how do you determine if something is copyrighted or trademarked? Copyright is a little easier to look up, but honestly it’s still a lot of work. If you have to ask, you’re better off not using it. Get original and more creative with your work and make it your own!
This is the link to search copyright works. (It’s so dated looking, but they don’t care.)
I typed in Gilmore Girls and all the episode titles came up – including the alternatives and the theme song. I see you people who have those “where you lead I will follow” on SVG designs and other merch on Etsy.
What to Know about Trademarks
Just because a phrase is trademarked doesn’t mean you can’t use it. With this I mean, if a phrase is trademarked in 16 – Paper, Items made of Paper, Stationary items and you sell t-shirts that means your classification is 25 – Apparel. You’re probably okay. But still consult an attorney.
You do need to search for similar trademarks though. “Just because Dove can be trademarked by two companies for two separate products doesn’t mean that you can trademark the same name of a product already on file in your trademark’s class. Classes exist to keep trademarks distinct while still allowing for co-existence across the classes.” via Upcounsel
A trademark should really be about protecting your business. It needs to be distinct, and it shouldn’t be a popular phrase.
Frivolous registrations are happening a lot lately. Phrases that are in every day use or trendy like “soccer mom” or “wifey” or “dog mom” are trying to be registered and currently are being opposed. Some that have gone through and are trademarked: “#momlife” and “sweating for the wedding” – you’d be surprised what has been pushed through that seems ridiculous to be trademarked.
Basically a trademark means that if you do photography and you name your business “Baby Shots” and then someone else comes along with a photography business doing the same thing, and names their business “Baby Shots” – that’s something to trademark.
That’s what trademarks are supposed to protect.
Lately, people have registered every common phrase they can think of, and so many of them are being accepted. It’s ridiculous!
I have joined a group that is fighting frivolous trademark registrations. While we can’t do much about ones that are already registered, we can fight the ones that are still in the application process. This group has a great team and a lawyer to help advise so they can file a letter of protest to keep people from trying to register common or trendy phrases. Wanna join them and help fight the fight?
Trademark Bullies & Etsy
There are trademark bullies out there that can use these frivolous trademarks to bully you – and Etsy is full of them!
Etsy is a pain in the ass with how they handle these things and a lot of people hate it. Me too. If you get reported enough by these bullies, Etsy wipes their hands clean and shuts you down. They don’t really want to be involved and their policies are set up to keep them from doing so.
This is true for most third party sites that you might depend on to sell your goods. But, I continue to sell my SVGs there because it’s where I make the majority of my income. I tried selling on my website and it didn’t take off, so I stopped to avoid more work. I’m also selling at another website and it’s very slow for me there to start, but things are picking up as it’s a new site. To leave Etsy would be business suicide right now.
Thinking you might want to leave Etsy? Indie Law has a post about this – and they make really great points!
What I’m Changing About My Etsy Shop SVG Designs
Your question probably is, “are SVG files trademarked?” – well, based on my search when I type in ‘digital file’ in the trademark class search on the trademark website it comes up in classification 9, Digital Media.
So, if the phrase is in that class, I need to search all of my designs to see if I am infringing trademarks. If I am infringing a trademark I’ll remove it completely from my shop.
Currently I have marked every single design of mine on Etsy as PERSONAL USE ONLY (every day I work on a few listings to update – will list categories at the bottom so you know what has been updated so far) while I do my research for each design. All 368 (at the time of this post being published) are having to be looked into on my end. Ugh. Can you even imagine what I have to do?
I plan to look at every single one of my designs in the following trademark classes:
- 09 – Digital Media (my SVG files themselves)
- 16 – Paper, Items made of Paper, Stationary items (Think Cards and Scrapbooking Products)
- 18 – Leather Goods (I believe this includes canvas tote bags – if not it’s under 24).
- 20 – Furniture (I believe wooden signs fall in here – if not class 16).
- 21 – Crockery, Containers, Utensils, Brushes, Cleaning Implements (Think Mugs and Glassware)
- 24 – Fabrics, Blankets, Covers, Textile (This includes Towels, Pillows, etc.)
- 25 – Clothing, Footwear and Headgear (This includes T-shirts, Hats, Baby Clothing, etc.)
If a design is in the 09 class I will remove it. If it’s in the other four I will make it personal use only. If it doesn’t fit in these categories they will be available for commercial use, but you have to purchases a license from me and sign an agreement that indicates your selling classification.
But what if I sell items in the 16 classification and it’s only trademarked in 25? You can contact me and we can talk about it.
How You Can Register Past Purchases With Holly McCaig
Here are important things you need to know if you use my SVG files for commercial use:
- Do I Need a License On Past Purchases? I will not be charging a license fee if you have a design in my shop that you purchased before February 23, 2018, and are using for commercial use. If it is marked okay for commercial use you will be okay to continue using it as long as you make sure it’s isn’t infringing trademarks that might be in your selling classification.
- What If I Want to Protect Myself With a Past Purchase From You? Okay, so you can do this by completing this form and you can register your commercial use license automatically granted with me for purchases prior to February 23, 2018. You will need to look in the shop first to make sure that it’s okay for commercial use. This is the best way to protect us both and that we both agree that we’re in compliance. However, this doesn’t protect you if someone registers the trademark in your class at a later date. While I can’t make everyone do this, and it will be an admin nightmare probably, I still recommend it.
- How do I Know If a Design Has Been Updated In Your Shop? I have over 360 files in my shop as of the publication of this post. So it will take me some time. I am updating the current holiday items first as that makes more sense now. However, each product description on Etsy will list in the section titled “THIS DESIGN OKAY FOR” what it’s okay for. There will be one of three options. One is that I’m still researching and this listing isn’t updated so it’s personal use only until then. The second is if it’s for PERSONAL USE ONLY meaning I have already looked up and you cannot use this design for commercial use. The last is Personal + Commercial with a License, and this design means it’s okay for commercial use when you purchase a license. I am also listing categories at the bottom of this post for quick reference if it’s been updated, and you can tell from the graphics on the listing as I’ve switched to the design only and a label that says “personal” or “commercial” and not a preview with a mockup.
- What If I Want a Listing That Isn’t Researched Yet? If you see a design in my shop and want it for commercial use but I haven’t researched it you can message me and I will do a quick search and get back to you within 24-48 hours Monday through Friday. I will update the listing and you can go ahead with buying a commercial license for it if it passes.
- Do I Have to Buy A Commercial License For Future Purchases? YES! If you use a design for commercial use and do not have a license with me after the February 23rd date (which is when all of my listings were updated to reflect the changes) you will be subject to legal action by me or the holder of the trademark. I am not liable for your infringing a trademark or copyright law. You can purchase those here in my shop – I have a few options and have made it so licensing multiple designs at once is less expensive.
- What About Friday Freebies From Before? If the design is listed as Commercial Use okay in the shop then yes, you can follow the same directions as step 1 above (must have got it before February 23, 2018). If they are listed as PERSONAL USE ONLY stop using them now. Again, I only make something Personal Use if it’s trademarked in one of the popular trademark classes.
- Friday Freebies Are Changing. Starting in March, Friday Freebies are now a Monthly Freebie and are distributed at the first of the month via the email list. The link is good for 48 hours from the time the email goes out and then it will expire and be listed in my shop. These are personal use only files. As from before, I cannot extend freebie links for any reason.
- What If I Can’t Use a File From the Past Now for Commercial Use? There are no refunds as these are digital files that cannot be returned. There is no way to prove you didn’t already profit off of the design prior to the changes.
- What Does Licensing Fees Cover? It covers my time for administration purposes to draw up your contract and to file the agreement between us with my attorney. There are multiple options for licensing with discounts for more purchased. You can write these off as business expenses. If you are profiting off my designs then you can afford a $15 license fee.
How to Handle a Trademark Infringement
If you are infringing trademarks in your class you will want to remove those immediately. However, if you are not sure and you get contacted by someone, the folks over at Indie Law have a great post on how to handle it. Check it out!
Again, I am not liable for you not doing your due diligence. Please please please speak to your attorney. You may want to join the Indie Law Facebook Group for guidance, too.
I do not want any of you to ever risk your business. I want you to thrive and do it legally. This is why I think it is important to educate our consumers. If business were easy we’d all be doing it, right? DO the right thing and you’ll thrive, I promise!
Please note that I am NOT a lawyer and this isn’t considered legal advice. You should speak to your attorney and get proper legal advice. Everything here is based on research I have done. I welcome updates and corrections!
Section Listings Updated So Far – Updated 3.3.18
- Easter SVG Files
- 4th of July SVG Files
- St. Patrick’s Day SVG Files
- Wedding SVG Files
- Coffee SVG Files
- Camping and Adventure SVG Files
- Summer Beach SVG Files
- Family SVG Files
- Faith SVG Files
- Fitness SVG Files