After almost a year of making baby clothing & accessories and selling them, I can’t tell you how much more aware I am of legal issues for a handmade business than I was at the start! At the beginning, I was quite oblivious to really anything related to manufacturing & selling clothing and the law. I’ve learned a lot, and I’d like to take some time to share a few things with you that you may find helpful if you own a handmade business yourself. I hope these tips save you a lot of time!
In this post, I’ll be focusing on intellectual property laws. Disclaimer: Please DO NOT substitute these tips for legal advice. CONSULTING A LAWYER is best. These tips are just to get you thinking.
There’s a lot of copying going on in the world of DIY Mommies. How do I protect my designs?
There are a few legal ways to protect your company & designs/inventions:
You can trademark a product name, company name, or logo design. Once your name/design is a registered trademark, you can take legal action against others that use that name/design. You cannot trademark an invention or a product design; think of trademarking more as protecting one clever word or group of words that you’ve come up with. For example, if your business name was “SillyBums” you could apply to have that trademarked. If you manufactured diaper covers and called them “RuffleyPants”, you could apply to have that name trademarked. In Canada, you can search for current trademarks in their online database. If yours is not taken, it’s easy to apply online. The cost is a couple of hundred dollars to start. After several months, you will be notified as to whether or not your trademark is “registered”, and then you will pay another fee (if there is opposition to your trademark, you’ll need to pay more money and go through further steps). Commonly, people that have submitted a name/design for trademarking use the symbol (TM) near their design and once the trademark is registered, they use the symbol (R).
Please visit the Canadian Intellectual Property Office for all of the more detailed info on registering a trademark in Canada.
Please visit the United States Patent & Trademark office for information in the United States.
A patent can be used to protect an invention or a unique product design. It is more expensive than a trademark (though initially, in Canada, the fees to apply are similar) and take a long time to process. After you apply for a patent, your product is labelled as “Patent Pending”. While you cannot take legal action against people that copy your invention while your patent is pending, you can take action after you receive your patent against these people. The reverse is true: if you copy a “patent pending” design, the original designer cannot sue you. Once they get their patent, they can take action against you for losses. (The lesson here: It’s best NOT to copy any patented OR patent pending designs!) It’s always a good idea to search for patents on any particular type of product you want to create & sell. Read the patents. Often, there is a way to tweak your design so that it is not an infringement. Popular patented/patent pending baby items that I see infringed upon all the time are the Bebe au Lait Nursing Cover and Taggies blankets.
Please visit the Canadian Intellectual Property Office to search & apply for patents in Canada.
Please visit the United States Patent & Trademark office to search & apply for patents in the United States.
You can copyright a written work (music, a sewing pattern, a book) or an artistic work (photographs, paintings) to protect it. From my understanding, written works are “automatically” copyrighted the moment they are produced by the author, but you can go through a more “official” process to further protect your work. It’s illegal to use a copyrighted work for your own purposes – I see it all of the time – people using other people’s photographs in their blogs or even to sell their own products. Another infringement – people using/abusing sewing/craft patterns with specific usage terms to make a profit. You can use the (c) symbol to denote that any written/artistic work is your property.
Please visit the Canadian Intellectual Property Office to learn more about Copyright law in Canada.
Please visit the United States Patent & Trademark office to learn more about Copyright law in the United States.
What if my product can’t be protected by any of these legal methods? How do I prevent copycats?
I have to insert a large “sigh” here: *sigh*. Unfortunately, copying seems to be a big problem in creative fields. I find it especially prevolent in the “DIY Mommy” crowd. Lots of things can’t be protected by law. For example, if you’ve designed an adorable baby dress with specific features (a ruffled hem, a specific fabric, etc), you really can’t trademark, patent or copyright it legally – it’s not eligible for any of those things. Here’s where I think business ethics come into play. How do you feel when a design of yours is copied? Try to keep that in mind when you produce new designs – be very careful to not exactly copy other’s design ideas. I KNOW it’s hard – there’s “nothing new under the sun”, right? I, though, am a FIRM believer that you can make everything unique. Add an embellishment, change up a fabric, add a new feature, use different dimensions… there are SO many ways to change up a design (even just slightly) so that it is different from another’s.
I completely understand that it is absolutely impossible to troll through the thousands upon thousands of products in the world every time you come up with something new to determine whether or not you’re copying. That’s absurd! I think it’s just important to make your best effort (though you certainly should check the patent database in your contry). If someone is offended by your design and they have a good reason to be, hopefully they will contact you in a professional manner and you can both make ethical choices & changes. (Side note: Special thanks to the mature, professional people that have been so kind to me in this regard). On the contrary, if you feel like someone is copying you right down the exact button, bobble or bead on your design, why not send them a friendly, professional letter? In my opinion, like mentioned earlier, there are MANY things that can be changed/added to make products unique! The DIY Mommy business is booming, and it would be great if we could work along side eachother and help eachother instead of competing.
If you have any comments/additions to this article, please write them below. I’d love to hear them!