Wednesday, April 27, 2016

Check it Out Before You Create

Disclaimer: I am not a lawyer of any type. I am a former teacher creating and selling educational resources. You should do your own research into the matter of trademarks and/or consult an actual attorney. This is not legal advice.

Did you know that when you are selling resources you cannot use every name out there? There is this thing called TRADEMARK. When you started creating resources to sell (or give for free to promote your store), you pretty much no longer fell under fair use.

When you create your educational resources, it is your responsibility to look to see if there is an existing trademark on the name you want to use and the category for the trademark.

⇝ Just because you have a reading textbook that needs supplemental material doesn't mean you can use the name of the reading series in your product.

⇝ Just because you see 10,000 products on TPT using a certain name doesn't mean it is okay for you to use.

⇝ Just because you like a certain author doesn't mean it is okay for you to use that author's name or product/book names.

⇝ Just because you purchased clip art does not mean it is okay for you to use if it depicts popular characters that are quite recognizable.

You must do your homework! (Isn't that what you tell your students?)

Here are a couple of places to check for trademarks:
United States Patent and Trademark Office


When you do your trademark search and you find the name you want to use, you also need to look at the category. Not everything is trademarked for Educational Goods or Toys/Games. Those are probably the most popular categories you are looking for.

How do people use trademarked names and get away with it?
⇝ It is important to remember that not everyone on TPT is violating trademark law. You can actually contact the trademark holder and ask permission to use the trademarked name in your product. Some sellers have taken steps to do this.

⇝ Those that do NOT have permission to use the trademarked name run the risk of receiving a Cease & Desist (C&D) letter from the trademark holder. A C&D does not have to be sent first. The trademark holder can file a lawsuit.

⇝ If a C&D letter is received by TPT, your product will be removed. You can appeal this decision. TPT does have a "3 strikes you're out" rule. So 3 violations and your STORE is removed.

Sometimes new sellers just don't know all of the rules. We were all new at one time. If someone mentions to you that you should check a name for trademark, please listen. Don't just delete their comment or your post or ignore them. So many times sellers don't want to hear that they may have a trademark violation because they have such a fabulous product. They want to do their own thing and make as much money as possible. To me, it's about what's right - what's ethical. You have to choose your path.

Be smart and do your research into names of products or people that you want to use to sell your resources. Be ethical and don't use trademarked names unless you have permission.

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