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.
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.
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!
SVG Designs + Trademarks
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.
In most cases I am NOT violating trademarks with my SVG designs because no one has them registered in the 09 Trademark class. But you may be selling an end product that is that uses my SVG design. In that case you would be infringing on trademarks.
The following are the most popular selling Trademark classifications being used on Etsy with SVG designs:
- 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.)
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!
Holly McCaig is a 20 year veteran of the design world. With her mark being made in scrapbooking and photography, Holly now educates eager artists how to do lettering in procreate on the iPad Pro. She resides in Denver, Colorado with her two dogs, Lola and Daisy.