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Can I print that Mickey Mouse shirt or not?
If your friends and family are like mine, you get tons of requests to make a custom gift for the next birthday party or holiday. And I’m guessing many of these requests are for the latest Disney character or a favorite sports team.
What do you do? Is it legal to make these items or not?
Using trademarked designs in your crafting business is one of the most important – and least understood – topics there is out there. Trademark infringement can literally put you out of business overnight and I don’t want that to happen to any of us.
This article is meant to help bring clarity to this topic. The information contained here is based on an interview I did with Girija B. Patel about trademark usage and infringement.
Girija is a Licensed Attorney in Texas. She helps entrepreneurs understand the law so you can build a solid legal foundation for your small business. She also has templates for bloggers, influencers and website owners to make sure you are protecting your work.
Important Disclaimer: All of the information shared in this article is for educational purposes only. It is not meant for any one individual, business, or industry. If you have any legal issues or questions specific to you or your business, please consult a licensed attorney.
What is a trademark or copyright anyway and why are they important?
Trademarks and copyrights are used to legally protect intellectual property that are used in business such as inventions, designs, symbols, and logos to name a few.
The difference between trademarks and copyrights is the type of creation they protect. A copyright protects creations of the mind. A trademark protects items that brand a business or identifies a company or product.
As a small business owner, it is important to understand these protections so you can look out for your own creations and so you don’t put your business in danger by committing trademark infringement.
Trademark infringement is the unauthorized use of a trademark or service mark on or in connection with goods and/or services in a manner that is likely to cause confusion, deception, or mistake about the source of the goods and/or services.
Normally, “use,” “in commerce,” and “likelihood of confusion” are three distinct elements necessary to establish a trademark infringement claim.
One of the most challenging parts of understanding trademark protections is most of the time there isn’t a black/white answer. The answer is almost always “it depends.”
There is one situation that is as straightforward as you can get – Using a logo like Starbucks or Nike in an item that you sell.
Simply put – you can’t do it unless the owner gives you permission.
You cannot use any registered or unregistered trademark without written and signed permission by the owner of the trademark, especially if you are intending to sell those items.
What about purchasing a trademarked design file?
Many creators think buying a brand’s logo file from a seller, such as on Etsy, makes it OK to sell items using that logo. Unfortunately, it usually does not.
Just because someone is selling a file on Etsy or other websites doesn't mean they have the license to do so.
Generally, a person has to have the right to give you the permission to use a logo. That right comes from ownership, a license which allows the extension of the right, or a representative that has the authority to assign that right. If the seller doesn’t give you a license, you absolutely can’t use it for reselling purposes.
What about Cricut Design Space Licensed Images?
There are some cases where this type of purchase gives the creator rights to legally reproduce the logo or character, but that all depends on the license to use that logo from the seller. Cricut Design Space has many popular designs from Disney (like the Mickey design I printed), Sesame, Hello Kitty, Marvel and more.
These designs can be purchased and used for personal use only. I made these Mickey shirts for my nieces – which is okay. But, I can not sell, donate or use these shirts for any commercial purposes. Be sure to read Cricut's Angel Policy for their licensing details.
What about adding some customization to the logo? Can you reproduce the logo if you add to it?
Generally, no. If the consumer can get confused as to the owner of the logo, then you’re probably infringing on the owner’s trademark. Be weary of using the exact same logo and then adding your own elements to it. You don’t want a consumer to purchase an item thinking it’s from the actual owner even if you have disclosed it’s not.
Another common misconception in the maker world is selling a logo as “inspired” so the consumer knows they are purchasing an inspired product and not the real thing. You can’t do this either. If the consumer could be confused about the real owner of the brand, a trademark infringement has occurred.
How are other shops doing it?
After reading all of this, many of you are probably thinking, “Man I see so much Disney stuff out there. How is that possible?” They just haven’t been caught yet.
It’s kind of like those people who talk on their cell phone in a school zone. Just because they get away with it doesn't make it right. And remember this, if they ever do get caught there is a hefty price tag attached to that risk.
I really don’t want you to put all of your hard work and dedication at risk like that.
The best advice I can give on infringement cases is, if you have any question about the legality of a project, err on the side of caution and ask an attorney.
If you have specific questions on this topic, drop me a reply and I will do my best to get you an accurate answer. Just remember, I’m not an attorney.