Trademark Protection For Your Brand Merchandise In The Age Of Copycats, Counterfeits, And Fakes

Weintraub Tobin
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With live events cancelled during the pandemic, content creators are increasingly dependent on merchandise sales. Creators from podcasters to YouTubers to musicians are reliant on merch to bolster their revenue and their brands. Subscribers stuck at home are watching more video and listening to more podcasts and music. Apart from advertising and sponsorships, merch is the only way for creators to monetize their increased profile during the pandemic.

However, 2020 has seen an explosion of counterfeit products including branded merchandise by content creators. An analysis from the New York Times in February 2020 found that the sale of counterfeit items represents more than 3 percent of global trade, corresponding to $1.4 billion in value in the U.S. alone. Reviews on Amazon containing words like “fake” and “counterfeit” have doubled since 2015.

Sometimes mere minutes after releasing merch, websites pop up featuring clear copies of t-shirts, mugs, and more (sometimes with incorrect fonts or distorted graphics). This is especially prevalent on e-commerce sites – like Amazon or Etsy – which do not vet third-party sales. The consumer has no idea that they are purchasing a knock-off.

Counterfeit products are not just a risk to the content creator’s bottom line, they are a risk to the consumer. Fake products are not necessarily vetted by government agencies and may not be safe to use. Consumers are also at risk of identity theft when providing their information to a shady third-party retailer. Unhappy consumers may also complain that they received an inferior or unsafe product, which can seriously harm a brand.

The best defense against counterfeit merchandise is to register a trademark. Creators can trademark a brand name, as well as brand logos and slogans. With a trademark in hand, creators can contact Amazon, Etsy, and other e-commerce sites to submit trademark “takedowns” of counterfeit products. Without a trademark, the e-commerce site may not take the creator seriously, or may not act quickly.

A trademark is the best way to defend your brand against counterfeit goods. It may seem expensive and unnecessary at first, but without that protection a significant portion of your income stream may be coopted by counterfeiters and your subscribers may be seriously harmed. Trademark your brand and ensure you and your subscribers are protected.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Weintraub Tobin | Attorney Advertising

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