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Norton Law Corporation Blog Etsy Business Trademarks and Corporate Formation

How to Protect Your Etsy Business

The idea for this post came from a couple of different sources. First of all, I’m getting married in just over a month, and my fiancee and I have been ordering quite a few things from the handmade capitol of the world over the last few months. Secondly, I recently read an article a couple weeks back about Urban Outfitters, H&M, and Forever21 allegedly ripping off the designs from a number of artists on Esty—I’d post the link, but I forgot to save it (and in true lawyer fashion, I also can’t really comment on whether those companies engaged in that kind of activity). So I figured, why not make a post on how shop owner on Etsy can best protect themselves not only from liability, but from other companies leaching off of their great ideas and unique designs.

Now, it should be noted that Etsy’s corporate counsel, Hissan Bajwa, wrote a post a year or so ago about the various types of business entities an Esty shop owner could own, but I feel like he may have left out a few things and wanted to go into a little more detail. Keep in mind that everything in this post is merely general advice, and none of it should be considered legal advice since (for most people reading) I’m not your attorney and I’m not basing any of this article on specific, individualized, facts but merely general observations.

The Best Legal Structure for an Etsy Shop Owner

What the best legal structure is for your business is going to be a question for your own personal business attorney. That’s right, you’ll need to evaluate what you’re selling, whether you’re working with anyone else, and what the taxes will be like depending on the type of structure you’re interested in (and that’s also a good question for a CPA, as most good business attorneys will tell you).

Let’s Talk Sole Proprietors

With that said, I’ve been shopping on Etsy for a long time, and I know that for most of the seller out there, who are working part time crafting their wares, a sole proprietorship is fine. You’re doing business as yourself (or under an assumed name, for which you’ll need a “Doing Business As” DBA recorded pursuant to your county’s rules), and as a result, if you run a shop on Etsy, you’re already a sole proprietor. From a tax perspective, you and your business are one in the same, and from a liability perspective, you’re also one in the same—which an lead to you being held personally liable for any lawsuits that may pop up against your business. Do keep in mind that you may be able to protect yourself with liability insurance, but be sure you really know what your policy says.

In short, a sole proprietorship structure is easy to run (all the money just goes to you), easy to maintain (you don’t need any specific filings or documentation except for a DBA), easy to form (automatic as soon as you start doing business), but you need to watch out for the liability problems or you could get seriously burned (you’re personally liable for everything done in the name of your business).

So, in an incredibly general way, I’m going to say that for most Esty sellers, a sole proprietorship is all you need—especially if you’re just starting out and don’t want to invest a bunch of money into a business you’re not sure is going to work—unless you’re selling items that could injure someone, including vintage items, food products, beauty and grooming products, certain types of furniture, or anything that could injure someone.

Partnerships Are Just…Meh

Now, the question when you decide to start working your business with another is whether to form a partnership or one of the more “sophisticated” business structures like a corporation or a limited liability company (LLC). This might just be personal preference talking, but I’m not a fan of the partnership structure unless it’s absolutely necessary (which does happen in very specific circumstances which are way, way outside the scope of this article). Essentially, you and another person enter into a business partnership, at which point I always recommend a partnership agreement—seriously, if you’re partnered with someone and you don’t have a partnership agreement, call an attorney and get one drafted now, this very instant, I’m not kidding—when you start operating the business together.

A partnership is kind of like a sole proprietorship, but for two people. Same as before, they’re easy to run (just split that money as stated in your partnership agreement, or equally if you don’t have a partnership agreement), easy to maintain (again, just file for a DBA and that’s all you’ll need provided you and your partner are still getting along), easy to form (just start doing business with someone else), and as with the sole proprietorship, easy to get totally screwed if someone sues the partnership. And why you may ask? Because in a partnership, both partners are on the hook for the entire amount of any liability the partnership incurs. So if your partnership is sued, and your partner can’t or won’t help pay, you’re going to be stuck holding the bag (though in all fairness, you can try and get the money from her later).

My feeling about partnerships for Etsy store owners is this: if you’re doing enough business that you’re in need of a business partner, skip the partnership, spend the money and form a corporation or an LLC.

Better Liability Protection Comes at the Price of a Corporation or LLC

We come to the last two types of businesses for Etsy shop owners: the corporation and the LLC. Now, there’s only one type of LLC (unless you count LLPs, which are like LLCs and partnerships mashed up and only used in limited circumstances), but there’s a whole slew of corporation types, from C-Corp to S-Corp to B-Corp. We’re going to talk about a few pros and cons of all of them, but a somewhat more detailed study, you may want to check out my other articles on corporations and LLCs.

For a lot of small business owners, the biggest issue I run into with corporations and LLCs is that entrepreneurs don’t like to pay for them. Most of the time, as long as you do yourself a favor and stay away from the non-lawyer legal service providers you see advertised on TV, you’re going to have to shell out around $500 to $1000 to get a corporation or an LLC formed after attorney fees and filing fees with the state you choose to incorporate in. For some business owners, especially Etsy sellers who are just getting started, that’s quite a chunk of change, and you’re probably wondering what you get for that.

What you get for that is a lot more liability protection in case something goes wrong and your business gets sued. This means that if the business is sued, you’re most likely going to be protected. It also means that you have to keep up with a lot more busywork to keep your business going. Extra documents will need to be drafted, meetings will need to be held, a separate set of taxes will need to be done, and so on. But all of that comes with the big perk that if your business is sued, you and your family aren’t going to have to pay for the damages out of pocket if you lose—your business is solely responsible. And because of that big benefit of a corporation or LLC, if you’re selling products that run a higher risk of hurting someone, do yourself a favor and talk to a business attorney (most of us are free to consult with) about whether you should go the corporation route.

On top of the liability protection, some of the corporation types also give you extra benefits. For smaller businesses, I say stay away from the C-Corp structure unless you’re interested in securing some kind of venture capital investment. However, an S-Corp can help you save money on taxes, and a B-Corp can help you save money on certain supplies and other necessaries to keep your business running since having a (Certified) B-Corp shows the world that your businesses takes social responsibility seriously.

Protect Your Handmade Items from the Prying Eyes of the Big Companies

While the first part of this post dealt with how to protect yourself in the face of liability, the second part of this article will deal with how to protect your products from “theft” by the competition. At the outset, it’s important to know that not everything can be protected and a full on, proper protection scheme will cost you a lot more than you’re probably making selling your products on Etsy, but I’ll give you a few hints and tips on how to protect your products without breaking the bank.

Also, every industry has a preferred type of protection, wether it’s copyright, patent, trademark, or trade secret, so I’ll be touching on all types of protection.

Don’t Copy Me…I Have a Copyright

Copyright protection is automatic for things that qualify for it. That’s right, you don’t need to file any paperwork, pay any fees, or anything like that if your items qualify for copyright protection. However, obtaining a copyright for many types of products is simply impossible, and if you want to go after someone for money damages who has copied your work, you’re going to have needed to register your copyrighted item with the Copyright Office arm of the Library of Congress.

So here’s how copyrights come to be. They need to meet two main requirements: originality and fixation in a tangible medium. First, something needs to be original to be copyrighted. It doesn’t have to be super original, just mostly original. Second, it needs to be fixed in a tangible medium. Say what? That just means it has to be more than just an idea, it has to be “touchable” for lack of a better word. There’s also a third requirement: the item can’t be functional.

With the requirements out of the way, let’s talk about a few items currently on Etsy’s front page that may be able to qualify for copyright protection. Jewelry, clothing and accessories, photographs, paintings, furniture, and eyewear. That’s a pretty wide range of products, all of which may be available for copyright protection provided any individual item from a group of items like that is able to meet the requirements for a copyright.

If You’re Trading Goods, You Need a Trademark

Trademark protection is another great way to keep the big companies at bay and protect your products. First things first, I’m a trademark attorney, so I always recommend that if you’re serious about your business, you really need to spend the few hundred dollars to trademark your company’s name. You don’t have to spend extra to trademark a logo or a slogan, but do yourself a favor and trademark the name of your company to give you that extra leverage to fend off competitors who may try to leach off your success. And even if you’re not worried about that, at least have a qualified attorney perform a trademark search to make sure you’re not infringing on the trademark of another. Seriously, I’ve seen it happen before, and a few hundred dollars now can save you tens of thousands later.

With that out of the way, trademarks are designed to protect brands and make sure consumers know where any given item is coming from. Most notably, business owners register trademarks for the name, logo and any slogans used by the business, along with the names they use to brand their products. However, beyond that, certain characteristics of the products themselves may be eligible for trademark protection under what’s known as trade dress. Trade dress extends trademark protection to the decorative, non-functional, non-essential portions of a product, which makes it an excellent way to protect certain types of products. Here’s a few examples of where trademark protection may be applicable: watches, clocks, clothing, jewelry, eyewear, and accessories.

Patents are Patently Expensive

Patents are the third category of intellectual property protection, and to be perfectly honest, they’re way beyond what you’ll likely need as an Etsy shop owner. They’re usually incredibly expensive and take a long time to obtain, and I really don’t recommend patents for most small businesses.

Keep Your Recipes a Secret, a Trade Secret

The final type of protection for your products is trade secret protection. Purveyors of food products, beauty products, and other consumables, its time to listen up. Trade secrets protect the recipes and formulas you use to create your products, but they can also be used to protect things like customer lists, supplier lists, and pretty much anything that makes you different from your competition. The catch? You need to keep your trade secrets a secret. Don’t tell anyone you don’t need to. Make those you do tell sign a non-disclosure agreement. And if you write any of your trade secrets down, keep them under lock and key and only let others see them on a need to know basis.

A Quick Conclusion to a Long Article

At over 2400 words, I think this is the longest article I’ve written on my site, but there was a lot of information to cover and I hope you’ve learned a thing or two about how to protect yourself and your Etsy business. A few things to keep in mind in parting.

Sole proprietorship is probably fine for many Etsy shop owners, but not all, so call an attorney if only for a quick (free chat) about business structures if you’re worried about liability or interested in taking advantage of the perks of a corporation or LLC.

Copyright and trademark protection may be available for your products, but don’t just assume. As far as trademark protection goes, take a look at the (growing) database of common trademark questions for some quick answers on whether your product may be trademarkable. And if you have a product or service to add, let me know and I’ll give you credit for it.

Whether you’re a sole proprietor using a DBA or a full-fledged corporation, trademark your business name, or at least spend the money on a professional trademark search to make sure you’re not infringing on the trademarks of another.

And that wraps it up. Good luck in your endeavor on Etsy and I hope your business continues to grow into a huge success. And if you’re already a shop owner on Etsy, feel free to share your shop in the comments below.

How to Protect Your Business’s Trade Secrets

Regardless of your chosen business type, chances are your business has secrets you want to protect. These secrets can be anything from a distributor or an account, to a secret formula used in your manufacturing process, to new product designs that are still in the development phase but not yet ready for sale. These types of secrets are often called trade secrets, generally defined as confidential or specialized information that unique to a particular business—and often one of the keys to its profitability. Given the importance of trade secrets to a business, it’s no wonder state laws provide numerous protections for businesses’ trade secrets.

But just because something is important to your business, or is considered secret by you and your staff, doesn’t mean the law defines it as a trade secret. While it varies somewhat state to state, trade secrets are generally defined as a business secret the business uses reasonable efforts to protect, that confers an economic benefit from remaining unknown to the public. Some of the most commonly cited examples of trade secrets are the secret recipes for Coca-Cola soda and KFC’s secret recipe.

On a very general level, trade secrets are fairly similar to patents, in that both work to protect a design, formula, or other “invention” of a business from being used by the public at large. However, the difference lies in the way these protections work. For a patent to provide protection, the business must register the patent with the USPTO, whereby it gains protection from use by anyone else at the expense of limiting that protection to a set term of years. And you give up the secrecy of the patented item, since you have to publish the patent for all the world to see. A trade secret, on the other hand, stays protected indefinitely as long as it stays secret—so don’t go around sharing your business’s secrets, lest your legal protection for those secrets be terminated.

Now that you know the importance of protecting a trade secret, you need to come up with a way to keep your secret a secret. One of the most common ways for a business to protect its trade secrets is to ensure employees don’t take divulge the secret to anyone, or take it with them when they move on to a new position at a new company. Typically, employers require their employees, and even their contractors, sign a non-disclosure agreement, preserving the confidentiality of the trade secret. It varies from state to state what the penalties for violation of such an agreement would be, but generally an employee who is found to violate a valid non-disclouse agreement will be faced with financial penalties.

Non-diclosure agreements can help a business protect its trade secrets, but what if that secret gets out into the wild—or worse, solely into the hands of a competitor. Well, if a trade secret is stolen or violated in another way, the business may be able to bring a state law claim against the offender. The remedies available to a company who had its trade secret misappropriated are state specific, and would be beyond the scope of this general overview of trade secrets. However, common to most jurisdictions are financial damages and injunctive relief, including compensation for the economic harm and possible punitive damages.

We hope you found our primer on trade secrets to be useful. Remember to keep your business’s secrets safe under all circumstances, and they will be protected for years to come.

Photo courtesy: mugley

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Why Your Business Needs a Trade Secret Audit

One of the biggest, and often most overlooked, assets your business owns are its trade secrets. A lot of time and energy go into talking about the big boys of intellectual property, like patents, trademarks, and copyrights—so much so that you’re probably wondering what a trade secret is. These are essentially the secrets a company keeps about things like inventions, secret formulas, customer lists, supplier contacts, and generally those bits of information that keep the company special, unique, and give it that edge against the competition. Famous examples include the formula for Coca-Cola and the KFC secret recipe.

But what are you supposed to do about these trade secrets? Firstly, you need to keep them secret. They’re only protected by law if nobody knows about them. Secondly, you need to know what they are, how they’re used, and how their protected—and you find all of that out through a trade secret audit. A trade secret audit is good to perform at any time, even when your business is in its prime, if you just want to know which trade secrets are the most important and how to best ensure they’re not going to get out into the wild. After all, because these secrets are so valuable to your business, you do not want them to be discovered by the prying eyes of your competition or released to the public by a disgruntled former employee.

So how does a trade secret audit work? It starts out with your business attorney putting together the party, an Avengers-like team, who will work on the audit. This team will be given access to the company’s trade secrets to determine what are the company’s secrets and how best to secure them. Once the team is assembled, they will be tasked with auditing the secrets. The first step to the actual audit, then, is to identify what assets/resources are trade secrets and what are not. This requires a comprehensive review based on the rules regarding trade secrets, and ultimately the team should determine exactly what constitutes a trade secret in the context of your unique business structure.

Once the trade secrets have been identified, the team is tasked with determining how well protected those secrets are and how many people know about them. Are they stored out in the open for everyone (including customers) to see? Are they sheltered away in a vault somewhere offsite? Are they stored on computers? In the cloud? Who has access to them? Are those employees with access to them governed by non-disclosure agreements? These are just a few of the questions the audit team should be asking. And once they have answered all of these main questions, the team should move on to figuring out where problem areas are, how to solve them, and how to use technological innovations to even further secure your company’s secrets.

As Benjamin Franklin once famously wrote, three can keep a secret if two of them are dead. (I’m not advocating killing people you tell secrets to, but just be aware of who you share your trade secrets with.) Trade secrets are incredibly important to your business, whether you know it or not, and you must do everything you can to keep them secret.

Photo courtesy: kennymatic