How to Avoid Trademark Infringement

If you're going to join Amazon's Merch program, you need to be in it for the long haul and constantly be thinking long term.

With each t-shirt design that you upload, the goal should be to get a sale so that it stays as an active listing on Amazon's marketplace forever.

Also I like to take my daily royalty and multiple it by 365 to project how much annual income I'm earning. For instance, if you can consistently sell a single t-shirt every day at a $17.99 price point ($3.87 royalty), you increase your annual income by $1,412!.

But if you don't comply with the Merch content policy, you won't be making that additional side hustle money for long, because they will ban your account. Trust me - I know from first hand experience.

In this article I will share some of my best practices, but it's not definitive as the content policy continues to evolve and change over time and is not well documented by Amazon themselves.

I would also strongly recommend reading the official Amazon Merch content policy at least once before uploading.

Youth Shirts

If you offer a design in a youth size, you need to be extra careful about your choice keywords in the listing.

As of October 2018, the content policy has been updated based on the shirt sizes offered:

Designs that contain profanity, drugs, alcohol, violence and sexual content will be allowed in adult sizes but not in youth sizes.

This means if you upload a shirt and check the "Youth" checkbox on the color selection screen, they will be extra strict about what words and phrases are allowed on the listing.

We're attempting to maintain a community sourced list of "gotcha" words for the youth content policy on the /r/AmazonMerch subreddit.

There's plenty of great resources & community there as well (it's a great place to vent frustrations!), so please consider subscribing:

Tools To Help Protect Your Merch Account

If you rack up enough strikes against your account for submitting rejected designs, you will eventually get banned. That means we need to pay extra close attention to the designs and keywords we associate with our listings.

There's no browser extension to my knowledge that can ensure you aren't submitting a trademarked word or phrase, but there is one that does its best to prevent you from submitting words that the Merch program doesn't allow.

I would strongly recommend that any serious Mercher download this free Chrome extension which has saved me many times from accidentally submitting the word "sh*t" instead of "shirt".

It even alerted me that the word "Premium" was no longer allowed, which is crazy because Amazon lets sellers put designs on what they call "Premium Shirts", but if you used the word premium in your listing, it would get rejected.

This is what it looks like when you type out a banned word:

If you see any textbox turn red, you're immediately alerted that you need to remove/fix your listing before submitting it.

Click here to download Merch Security (FREE)

Merch Informer offers a paid resource that helps automate Trademark detection for your existing designs, because if someone files a Trademark for existing designs that you uploaded in the past, they will all be taken down at once by Amazon Merch's automated system. If you can get out ahead of the sweep and take them down yourself, you can avoid the strikes against your account.

I also create a folder called "Trademarked" in my offline repository so that I don't accidentally re-upload protected designs back to Merch, or to competitor platforms.

Using USPTO.gov To Avoid Infringement

Getting comfortable with the USPTO.gov search engine is a must, because new trademarks are constantly being filed, and existing ones are expiring.

Rarely do I upload a new design to any platform before first checking with USPTO to see if Live trademark records exist that would protect the image or phrase used to describe the design.

Here's how to tell if you are infringing on someone's trademark:

1. Navigate to http://tmsearch.uspto.gov/
2. Click "Basic Word Mark Search (New User)"
   
3. Enter terms, primary keywords, or a design summary into the "Search Term" field & hit your Enter key or click "Submit Query"
   
   in this example, I searched for "Chicken Butt"
4. If there are no search results, you should see this screen, indicating that you are safe to proceed:
   
5. If there are search results but none of the records are marked as "LIVE", you are safe to proceed.
6. If there are search results, you need to click each record marked as "LIVE" to do some additional digging:
   
   As is the case with our "Chicken Butt" example:
   
   
   • a. Click each record marked as "LIVE"
   • b. Next to "Goods and Services", look for the words "Shirts", "Sweatshirts", "Popsockets" - this is where they can indicate protected goods that can't contain their mark.
   • c. In the first record on our "Chicken Butt" example, the mark is protected for use on Parlor Games (so we are OK!)
     
   • d. In the second record on our "Chicken Butt" example, the mark is protected for use in selling Donuts
     
     It's also important to note here that they protected the string "Chickenbutt Donuts" which is not the same string as "Chicken Butt", therefor even if it did protect shirts, we would be safe to use it!

Let's get our Chicken Butt shirt uploaded =)

When A Design IS Protected

Our "Chicken Butt" example worked out perfectly, even though the trademark database did in fact have live records indicating that the mark was protected, it was not protected for use on shirts.

But what does it look like when a mark IS protected on shirts?

Go to http://tmsearch.uspto.gov/ and search for this phrase: "someone in texas loves me"

You will notice two results, both of which are live:

The bottom record is not an exact match because it contains an addition "!!" at the end, so we don't need to worry about this.

The top record is an exact match - so click to open that record - we need to see if it is protected on shirts.

Upon further inspection, it is in fact protected for use on shirts!

This means we cannot use this mark on a shirt!

Searching for existing trademarks before you start designing can save you a lot of time. There isn't much worse than spending an hour finishing up a beautiful design, only to find out that you can't use it - so check with USPTO first!