Need Professional Assistance?
Gerben Law Firm has registered over 4,500 trademarks since opening our doors in 2008. We work with clients from all 50 states, and, from 30+ countries around the world. Contact us today for a free consultation with a trademark attorney.
Etsy is one of the biggest “hand-made” marketplaces in the word. However, very few sellers go through the process of protecting their Etsy store names through trademark law. As a result, Etsy sellers could be missing out on the chance to grow their business in Etsy and beyond into other marketplaces by not properly protecting their names as trademarks.
Protecting the Name of an Etsy Store
Just because your Etsy store isn’t a brick-and-mortar location in your local mall doesn’t mean the name of that store isn’t valuable. Just think – what do customers see when they are browsing Etsy? First, they see your amazing design or product. Second, they look at who made it – the name, the symbol next to the name, the rating of the seller. This relationship means everything – that store name is now linked with your customer’s expectations and experience with your products. If they have a good experience, your name now stands for quality and excellence. If they have a bad experience, your name might have a negative connotation in the customer’s mind.
Now imagine this – another seller (and competitor) choses a similar name to yours and produces sub-par products with bad customer service. This third-party has damaged your trademark in a way that is difficult to quantify or even know about – the consumer will simply associate their bad experience with your company and your brand will be damaged.
By protecting your store name as a trademark, you can prevent others from using confusingly similar names that will harm your brand.
Choosing a Strong Name for Your Store
Just because you select a name doesn’t mean it’s a protectable trademark. For example, if your store name is “Knitted Hats Co.” that is likely “generic” for a company that sells knitted hats. This would never be protectable, as every knitted hat company needs to be able to use “knitted hats” to accurately identify their products.
However, if you pick something arbitrary, like “Yellow Frisbee” as the name of your knitted hat store, it will be instantly protectable as a strong trademark, as it is arbitrary and has nothing to do with the goods or services you are providing. (This is of course, assuming no one else owns pre-existing rights – more on that later.)
There’s a whole spectrum of trademarks in between generic and arbitrary – ranging from trademarks that are descriptive but gain recognition over time (think Nationwide Insurance for auto insurance) to suggestive trademark that are instantly protectable, but not as strong as arbitrary or made-up words (think Mr. Clean for cleaning supplies).
Once you’ve selected a strong trademark, you also have to analyze whether someone else has already established rights in a similar trademark. In our example above, if someone else has established rights in “Green Frisbee” for knitted hats, then it is likely risky for you to proceed with using the name. A “trademark search” can be done by scouring the marketplace and USPTO database for marks similar in sight, sound, and commercial impression. A trademark professional would perform a comprehensive search using his or her knowledge and experience and a trademark attorney would review these search results to provide a legal analysis of the overall risk.
Registering Your Etsy Store Shop Name
Once you have a strong, protectable mark, then you should register it with the USPTO to obtain a registered trademark. This powerful tool provides government recognition of your mark and a certificate that allows you to more easily enforce your trademark rights against others. In some cases, like Amazon’s Brand Registry, it may even give you enhanced protection with an online marketplace.
However, registration of an Esty store name can be tricky. For example, the name must be used prominently and clearly identify specific products. You can’t just list a bunch of items you’d like to one day sell, or list items you think a competitor might sell. The application must reflect your actual sales of actual products, whiles prominently showing the name on those product or services.
If you are selling hats, each of those hats should have a tag or hang-tag with your brand on them.
If you are selling custom design services, you should use the brand name on a clear advertisement of the customization services.
There are many opportunities for mistakes during the registration process and hiring an experienced attorney can help avoid mistakes.
Enforcing Your Trademark Rights
Finally, once you obtain a registration, you must thoughtfully, but vigilantly, enforce your trademark rights. Not every use of a name that is somewhat like yours is infringement – however, you must enforce your trademark rights in order to maintain the strength of your trademark. Before filing take-down notices or sending cease-and-desist letters, it is important to research the alleged infringement, think about all options and consider all defenses. If you’re wrong, you could be on the opposite end of an infringement lawsuit or a “declaratory judgement” lawsuit, which can cost tens of thousands of dollars, if not more, to deal with.
By protecting your trademark, you can secure nationwide rights in your name. Those rights would then extend beyond the Etsy platform and into the marketplace, where you can continue to grow your brand. This powerful asset can help you push beyond your current place in the Etsy hierarchy and into the limitless potential of the U.S. marketplace.