How Do I Know When Something Is Trademarked?

If you’ve been around the online Cricut/Silhouette/craft cutting industry for more than 10 seconds you MIGHT have heard about issues with trademark/copyright infringement.

As in, people are often accidentally infringing on a trademark and sometimes we don’t know when something is TM’d or not.

Yeah – it’s kind of a big deal. 

Unfortunately.

‼️ (AND before I get started, I just have to say that I am NOT a lawyer and this is NOT legal advice and if you have specific questions about this, you really ought to consult an attorney.)

Here’s how it boils down: there are two main types of this that we will run into, in this particular (craft cutting) industry.

The first type, is the all-too-common thought that anything on Google is free and okay to use. Which it is most decidedly NOT.

This mostly affects artists and designers like me, when folks find some of our mockups or marketing images, decide to trace them and use the designs without paying for them. 🙄🙄🙄

That’s not what I wanted to talk about today though.

Today I wanted to talk about the second type – which is when you are happily making something you’ve seen a million places and THEN come to find out that the phrase or quote is trademarked and you’re not supposed to be using it.

Some trademarks are obvious – like licensed characters, business logos, etc.

No bruh, you’re not supposed to be putting the Nike logo on sweatshirts and selling them. That’s a crime, yo! (Counterfeiting, to be exact).

BUT – the real hard part is the non-obvious ones.

You know – when you’re selling something that would never in a million years be on your radar as trademarked, and 😳 BAM – you get hit with a takedown notice or a cease-and-desist letter. 

Now – some of these unexpected trademarks are legitimate, where someone does actually legitimately hold the rights to be the sole user of that quote. For example – generally speaking – quotes made by someone who is still living, modern movie & song quotes, etc. are not permissible to be used.

Some of them, on the other hand, are also what I like to call “frivolous” which is when people trademark & claim ownership of common phrases and then go after anyone else who uses them (soooo ridiculous).

I think these are the ones we hear about the most in the Cricut/Silhouette/Cutting world because they are SO unexpected and out of the blue. 

Like – DUDE – seriously come on, no one would ever expect that to be trademarked because it’s in common language and shouldn’t belong to one specific business.

Another VERY important factoid to know is that often, something might be trademarked for a specific type of item – like it might be trademarked for use on apparel but you CAN use it on mugs or signs or something. 

✋ Side note – as a designer, I always check TESS before I create anything and I generally don’t use any quotes that people might run into trouble with like with the above example. 

BUT – to be honest sometimes things get trademarked after I’ve made the design (it has happened!) and so I do recommend always checking even if you bought a commercial-use design. 

You just never know.

SO HOW DO YOU CHECK IF A NAME IS TRADEMARKED?

I could probably go on and on about the ethics and whatnot for ages but let’s just get down to brass tacks – what you REALLY want to know is how to avoid making the TM’d stuff?

So here’s what you do, the quick and dirty guide:

STEP 1:

You go visit the TESS database at https://tmsearch.uspto.gov/bin/gate.exe?f=login&p_lang=english&p_d=trmk and click “Basic word mark search.”

(note – for those of you non-US subscribers, this is still something you’ll want to do because you can still be affected by these)

STEP 2:

You’ll see a search field here – go ahead and type in your phrase and hit “submit query.” I’ve used the words “Ring Bearer” here.

Now – you’ll see something that looks like this:

What you want to look at is the ones that say “LIVE” at the end.

STEP 3:

Let’s click on that first one and take a look at what info we can see.

So – there’s a lot of info on this page! 

But what you want to look at is the “Goods and services” section. This will list off what type of products you aren’t supposed to make.

If you want to look at the next one on the listing, you’ll see that “Ring Bearer” is also trademarked for use on children’s apparel.

I don’t really feel like being sued, so I’m not going to share my totally non-lawyerly opinion about the morality & ethics of someone trademarking and claiming ownership of the words “ring bearer” (which is a phrase used in common language for THOUSANDS OF YEARS) to be used on Christmas ornaments, stuffed animals, and children’s clothing. 🤬🤬🤬

ANYWAY – what this tells us is that from a “legal” standpoint, you are NOT allowed to make a shirt with “ring bearer” on it for sale.

You can, however, legally make a “ring bearer” sign for a ring bearer to hold, because signs are not listed as one of the goods.

ANOTHER EXAMPLE:

Let’s look at another one – I have something I want to show you.

I can’t think of any “applicable-to-our-industry” example for this so I’m just gonna use Amazon today.

Here’s their listing for that little “Amazon’s Choice” badge they give some products in search results.

This one is a little different because HEY – it has an actual design on it! Not just words like the above.

This is because in this case, the trademark applies to this specific design, not just the words in general.

If you look down at the “Mark Drawing Code” you’ll see it says “DESIGN PLUS WORDS, LETTERS, AND/OR NUMBERS” – this means that the trademark specifically applies to the words as designed in the particular font and styled the way they are in the image.

Scroll back up to the previous example real quick, and you’ll see the other one says “Standard Character Mark” which means the words themselves but not a specific layout of them.

You can also see a written description of the design in the trademark down below in the “Description of the Mark” section: 👇👇👇

Now what this means is – if there was a travel blogger out there who was named Amazon and who wanted to start a segment called “Amazon’s choice” where she talked about the favorite places she’d visited, that would probably be okay because it doesn’t apply to either the service being described OR the visual “Amazon’s choice” banner here.

But… um… I’m not a lawyer so here’s my “I’m not a lawyer and this is not legal advice” disclaimer again 😂

IN SUMMARY

So – here’s what it all boils down to:

‼️ If you want to do a design with a quote or words on it, CHECK TESS FIRST.

‼️ Make sure you have ALL commercial use licenses lined up for any fonts or pre-made designs/images you’re using. You may need to check with wherever you bought or downloaded from.

‼️ Also, please don’t just grab images from Google and use them… it’s still stealing 😩

So – I hope this was helpful! 😅 

😘 Love,

Bethany

PS – on Personal Use… does this still apply if you’re not selling what you make?

So yes – TECHNICALLY these rules apply to personal use as well. You’re just less likely to get caught and have issues with it, because it would be nearly impossible for someone who makes a “ring bearer” t-shirt for their grandson to wear in a wedding he’s in, to get “on the radar” so to speak.

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