The digital marketplace is a wide and wonderful thing. You can have next-day package delivery for goods off Amazon.com, or professional trademark registration services within minutes through FlatFeeTrademark.com. There are countless websites, apps and e-commerce platforms allowing us to peruse and purchase goods or services with just a click or a swipe.
If you’re the crafty type or looking for a jungle motif for your kid’s room, there’s Etsy.com, which provides an online storefront for thousands of entrepreneurs and artisans. If you’re a manufacturer or importer, Amazon.com allows you the ability to feature and sell your products on one of the world’s most powerful websites.
Do You Have A Trademark or Copyright on Etsy or Amazon?
How does one go about protecting their trademarks, brand name and intellectual property in the online retail space? Can you get a trademark for your Etsy brand or storefront? Can you trademark products sold on Amazon.com? This month, we consider how to protect your brand name and trademarking on Etsy, Amazon and elsewhere in the online marketplace.
A trademark is any word, symbol, design, logo, slogan or sound that serves as a unique identifier for your goods and/or services in the marketplace. If you are offering your goods and/or services for sale in U.S. commerce via Etsy or Amazon, your storefront or brand name may qualify for trademark registration. If you create original designs, such as photographs or drawings, you may have a copyright.
Trademarks May Cover Goods and/or Services
As an online retailer, you could potentially have trademark rights for the service of selling (e.g., retail sale services), or for actual goods if you are an artisan, producer or manufacturer of the goods offered for sale. Trademarks are organized by Classes. The goods or services offered in connection with your trademark will be covered by one or more of 45 different Trademark Classes.
Let’s say you sell handmade candles on Etsy. You can potentially seek trademark protection for your actual goods (candles), as well as the retail sale service offered through Etsy. If you think of many popular retail brands – Gap, Macy’s, H&M – they are protected for goods and services. Applying for and obtaining trademark protection for your Etsy storefront or Amazon brand name ensures your exclusive rights in that name for the goods and/or services offered.
Start with a Comprehensive Trademark Search
Like any other trademark, the first step to protecting your Etsy or Amazon trademark name is to start with a comprehensive trademark search. This will provide important information regarding your trademark, including whether it is already in use or registered by another user. It’s important to conduct a Comprehensive Search (and not simply a basic federal search) because there may be potential common law use of your trademark name that would not show up in the federal trademark database. This includes others who use the same trademark name or something very similar as a legal company name, as a DBA (Doing Business As, or Fictitious Name), or on social media.
Once the search shows that the trademark name you want to use on Etsy or Amazon is available and does not infringe on anyone else’s trademark rights, you can apply for federal trademark registration with the U.S. Patent and Trademark Office. A federal registered trademark gives you nationwide priority ownership rights in your storefront’s brand name. This is an important step because you may feel like a humble artisan on Etsy or a lowly importer of third-party goods on Amazon, but your business may just grow and surprise you. Just ask the founder of Nasty Gal, which started on Ebay #girlboss.
A Federal Trademark or Copyright Registration Strengthens Your Rights
Having a federally registered trademark or copyright strengthens your intellectual property rights. Both Amazon.com and Etsy.com have policies to safeguard the intellectual property rights (including trademarks and copyrights) of those doing business on their respective sites. This includes rules prohibiting the sale of counterfeit goods, and any products that have been illegally replicated, reproduced, or manufactured.
You may submit a claim of copyright or trademark infringement for competing listings selling your goods, or goods under your brand name without permission. Since having a federally registered trademark creates a presumption of ownership in your favor, it minimizes the nature and amount of verification you have to provide to prove ownership in the mark or design at issue.
Trademark and Copyright Enforcement Tools Offered
Amazon and Etsy both offer intellectual property enforcement guidelines, with Amazon specifically providing for suspension or termination of the infringing party’s selling privileges, forfeiture of payments or remittances, and possible destruction of infringing merchandise held within Amazon’s fulfillment facilities without compensation.
Etsy, as a marketplace for artisans, also provides trademark enforcement tools and specifically allows copyright owners to submit copyright infringement claims and Digital Millenium Copyright Act (DMCA) takedown notices for infringing products sold through the site. Etsy will remove infringing images or suspend infringing storefronts, but it also provides a counter-notice option for users wrongly accused of copyright infringement to argue their case.
You may need to seek the assistance of a trademark attorney if you receive a DMCA notice, or for continued infringement of your mark or design despite repeated enforcement attempts through Etsy or Amazon.
Steer Clear of Infringing Others Trademarks
In addition to protecting your trademark or original designs online, you should also be cautious of infringing other’s intellectual property rights. This may include using copyrighted images you find online for your product listings without payment or proper attribution, selling copyrighted product designs or images without permission (including graphics, photos, fabrics and textiles), using the logos or designs of others without permission (sports teams or copyrighted characters). Always obtain written permission prior to using other’s intellectual property, or pay applicable royalty fees through reputable licensing channels (the owner itself or third-party websites like Getty Images or iStock).
Contact Us For a Complimentary Consultation
If you have any questions about protecting your trademark for products or sale services on an online platform like Etsy or Amazon, or if you need assistance in seeking federal trademark protection for your storefront, please contact us for a complimentary consultation, 800.769.7790. We’re always happy to hear from you!
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