I was browsing the Etsy forums recently when I found myself in a thread that turned quite ugly. That was sad.
The thread focused, however, on copyright and trademark infringement by using images owned by companies like Disney and Sanrio (the Hello Kitty people). I think that anything someone does creatively is a great thing, and I don’t personally object to people creating jewelry, cards, scrapbooking stuff, etc., with well-known images and kid-friendly icons. They can be hot sellers. However, I’m not one of the big companies whose images are being used. It is cause for concern if these sellers don’t know that they can be in quite a bit of trouble if they are using these images without permission (which was the case in the forums), or if they don’t care.
On eBay, there is a VeRO program, and if a large company complains that someone is using its images illegally, those items come down and sellers are warned. I know. I’ve been a victim of VeRO for unknowingly using the term Shabby Chic to describe a fabric that was not actually owned by the Rachel Ashwell company. The term is a registered trademark of Rachel Ashwell. I didn’t know. I thought it was a decor style and I was selling fabric that fit that style. My listing was taken down–no refunded listing fees. Fortunately, it was only a warning, and I got the message. And I sent an apology to the Rachel Ashwell company for unknowingly infringing on her trademark.
Using Disney images or other copyrighted, trademarked and patented designs without permission can land you in hot water. On Etsy, we are for the most part little guys, but Etsy is growing, and eventually Disney or Sanrio could take notice. You don’t want to be the one they notice. Even certain Disney fabrics are no-no’s for creating anything for resale. Says so right on the selvage of most Winnie-the-Pooh fabrics – for home use only. Etsy is not in violation but you will be. And Etsy won’t be able to protect you.
I did a search on Etsy before I started this post for Disney Princess. 27 pages. A lot of those items may be supplies, but some are not. For Hello Kitty? 62 pages.
My suggestions?
1. Do your homework and make sure your products are not inadvertently in violation of any copyright, trademark or patent holders. And if they are, start brainstorming products that might sell just as well without putting your entire business in jeopardy.
2. Don’t refer to your product by the company name or trademarked product in the title of your listings. If you’ve made it, even if you’ve used images from Disney or Hello Kitty, it is not a Disney or Sanrio product. It is yours. However, the images are still theirs.
3. If you are selling something similar, say a costume, but it’s not the same and not infringing, don’t refer to it as [company name] such as Disney or Hello Kitty. In your description instead, if you want to get the keywords in, say something like “Feel just like Cinderella in this beautiful princess dress.” Don’t say its a Disney Cinderella Dress, even if you used a Disney pattern. It’s not. That’s like saying a pocketbook you made is a Coach bag.
4. Find out how to get the rights to use those images if they are your bread and butter. Just be prepared. It may cost you an arm and a leg.
what if you are using scrapbooking items such as Jolee’s cut outs to use for sale in a photo album or booklet? Or if you are getting paid to create a scrapbook for someone and you use such aferomentioned scrapbooking products?
Hi Kim,
It would depend on the rules of the companies whose products you are using. I don’t know that scrapbooking elements used for creating scrapbooks and scrapbook layouts, since this is what they are intended for, would fall under this rule, especially when it’s a special order.
Where you run into trouble is if you use a product that has “not for resale” rules and you advertise your items created with or from those. For example, I wouldn’t create a Disney Princess-themed mini album for sale, even though you can get Disney princess scrapbooking supplies from various companies. The companies selling those supplies have paid for the rights to reproduce those images.
That said, there are plenty of people who do this, and so far, I haven’t heard of any major cases. However, I’d opt on the safe side. I wouldn’t want to be the “example.”
Hello,
I was searching for something and inadvertently tripped across this article.
I just wanted to put in a couple of corrections.
You are correct in that you can not use corporate images to sell your own product. That is theft, pure and simple. You also can not right click on a pic from someone else’s listing. Take your own pics!
And no, if you have a dress similar to Cinderella’s you can’t refer to it as such.
However, if you make a blanket out of Disney material, you most assuredly can advertise it as such!
The First Sale Doctrine essentially says that once you purchase an item you’re allowed to re-sell it as you see fit assuming you sign no contract agreeing to limitations (in which case, you’d be in contract violation, not trademark infringement anyway.)
This means that things like fabric, despite the “For home use only” rule on the selvage isn’t enforceable.
The seller taberone, on eBay, is a legend in this regard. She has taken on everyone from Disney to Major League Baseball when they try to shut her auctions down for using licensed fabrics in the creation of products. And she wins!
Check out her site. It’s a wealth of information on trademark issues:
http://www.tabberone.com/Trademarks/trademarks.html
Anyway, my point is, don’t automatically assume that because you get a grumpy letter about the use of trademarked items that they’re right.
They’re just hoping you’ll back down like you’re supposed to. 😉
PS: Also, it’s a good idea to put in a disclaimer such as “This album is made from licensed Disney fabric, however it is not a licensed product, nor is the seller affiliated in any way with the Walt Disney Company.”
Thanks Erin, That’s great information and very good to know! I had to use disclaimers like that when using Laura Ashley fabric, but the “For Home Use Only” certainly steered me away from the Disney fabrics.
And we should still be careful when writing titles, especially on eBay. You can’t call it a “Disney blanket,” but you can, apparently call it a “Baby Blanket made with Disney fabric.”
I also learned this the hard way on eBay, having posted a handmade album done with again…Laura Ashley fabric, and in an attempt to save characters, referring to it as a Laura Ashley Photo Album.
I would like to comment on this thread – first off – you have a complete and total right to use a trademarked word provided that it is needed to describe the item in question.
Someone else got VeRo’d by using the term Shabby Chic – they fought and won:
http://www.tabberone.com/Trademarks/ShabbyChic/sc.html
Take this for consideration if we took the position that you cannot mention or speak another company name.
Let’s say I was selling a photograph that I made of someone with something “Disney” in the background. I could make reference to the photograph describing it with the word Disney and not have any issues whatsoever. Sure, Disney might lie and say you are breaking the law – but the fact is – is that there isn’t a trademark violation.
Companies have been fascist for years, the Internet allows new levels of facism to occur. Don’t believe a corporate lawyer just because they say it’s true. They are paid to lie and intimidate. It’s their job – really.