Trademarks and intellectual property, for POD sellers

This is general information, not legal advice. If you have received a notice or are unsure about a design, speak to a lawyer.

Two different rights

In general terms, and in our own words:

• A trademark protects a name or logo that identifies a business: a brand, a team, a product name. It can apply to words in your title and tags.
• Copyright protects a creative work: a character drawing, an illustration, a film still, lyrics. It can apply to your design even if your text names nothing.

So a clean title does not make a design safe, and rewriting a brand name in a clever way does not make a title safe.

What usually gets print-on-demand sellers into trouble

This is our own list, not Etsy's:

• Cartoon and film characters, including fan art.
• Sports team names and logos, and league names.
• Fashion and sportswear brand names and logos.
• Theme parks and their characters.
• A brand name used only as a description, like "Disney-style" or "Nike-inspired".
• A name misspelt or joined up to avoid being noticed.

What happens when a listing is reported

From How to Report Intellectual Property Infringement and What to Do if You Receive a Notice:

• "if the report complies with our policies, we will remove the reported content and contact the affected members."
• "If any of your listings are removed due to an infringement claim, you'll receive an email with the contact information of the party who filed it."
• "We encourage you to directly contact the party that provided the report to Etsy if you have questions about the infringement claim".
• "Etsy does not make decisions about which listings infringe with intellectual property, and can not speak on behalf of the intellectual property owner."
• "Do not create additional listings for this content unless the issue is resolved with the other party."

Can you dispute it?

From How to File a DMCA Counter Notice:

• "Counter notices can be filed against reports of copyright infringement only." The same page says "Etsy cannot accept counter notices for non-copyright claims."
• It includes "a statement under penalty of perjury" that the material was removed as the result of a mistake or misidentification, and it is shared with the party who reported you.
• Unless that party tells Etsy of legal action seeking a court order, "you may relist the removed material 10 business days after Etsy processes your counter notice."

Why Was My Listing Removed? also says: "If your listing was removed and you believe this is a mistake, you may be able to appeal to restore it from the Policy violations page."

Repeat reports

What to Do if You Receive a Notice says: "Repeat reports of infringement may result in the loss of account privileges." The pages we read give no number of reports, and we would not trust one that is passed around in forums.

How to stay safe

Our own advice:

• Sell your own original designs. If you did not make it or license it, do not sell it.
• Search the name you want to use in a trademark register, such as the USPTO's, before building a range on it. A phrase can be registered too.
• Check bought design bundles: a licence from a seller does not help if that seller had no rights.
• Check your tags and description as well as the title.
• Keep your design files and licences, with dates.
• Treat a notice as serious, and do not relist.

How Listyro helps, and where it stops

Before you send anything, Listyro tells you when a listing names a well-known brand or character, including joined-up and misspelt forms. It flags artwork that looks like a known character. You decide what to do.

It checks against a list we keep. It cannot tell you a design is safe, it does not search trademark registers, and a listing with no warning can still be reported.