Etsy sellers require a business license

When do I have to register my trade?

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This article first appeared on: onlinehaendler-news.dePublished: 13.07.2020 | Author: Sandra May | Last update: 07/16/2020With kind permission and thanks to the Händlerbund Management AG

Those who produce goods by hand on a small scale and want to sell them on Etsy, Amazon Handmade, eBay etc. are often unexpectedly faced with a whole range of legal regulations.
In some areas, the legislature has provided relief, but in general small business owners are also faced with the same labyrinth of legal texts, judgments and applications.

From a legal point of view, commercial activity begins at the moment when the first components are acquired from which the finished product is manufactured.

The principle applies that every necessary activity in the context of the exercise of a trade is classified as commercial.

The business registration should always take place before the first sale is made.

Depending on which trade the trader operates, a number of other obligations can arise on the trader, which must be fulfilled in advance.

The craft regulations stipulate, for example, that professional seamstresses can also be entered in the craft register.

Dealers who ignore this may face warnings from competitors if they are doing a commercial activity as a private person. In this case it is a competition violation. In addition, it is easy for the tax office to target if no proper business registration has been made and there is suspicion of (attempted) tax evasion - including all criminal consequences.

Regardless of the widespread opinion that the sale of self-made products in small series does not mean commercial activity, the following principle applies:

Anyone who produces goods for the purpose of selling must register a trade.

If you start small, you are quickly tempted to first use your own apartment and transform it into a combined workshop, office and warehouse.

Basically that's okay if you pay attention to a few things.

The homeowner

In general, it is advisable to talk to the landlord beforehand, as the rental agreement usually stipulates the use for residential purposes.

Therefore, the commercial (joint) use of the rental property is usually not contractually covered. Therefore, it is definitely worth talking to the landlord in advance. This can then assess whether the commercial use is associated with impairment of the other tenants such as constant public traffic, noise, dirt or smells.

The building authority

The situation is similar with the building authority. It is not uncommon for areas in which there are residential buildings to be designated as purely residential areas in the development plans.

Businesses are actually not allowed to be carried out there, unless the character of the residential area is not expected to be impaired.

If businesses do not cause any immission, they are generally considered to be unproblematic, but they need to be coordinated with the building authority.

When a trade is carried out, it logically creates garbage, so-called commercial municipal waste.

The trader is responsible for the disposal of this commercial waste and normally the municipality sets up an extra bin for this type of waste.

The household garbage and the free yellow and blue bins are intended for the garbage that normally occurs in a private household.

However, the commercial waste regulations also provide for exceptions here, because if the commercial waste is negligible, the trader does not have to pay anything extra and do not have to set up an extra bin.

With the exercise of a trade, the rights and obligations also change.

For example, the dealer buys a certain material on the Internet.

In contrast to a purchase as a private person, he cannot return it if his expectations or disapproval are not met, but must accept this circumstance.

It quickly becomes apparent that the right of withdrawal can be quite uncomfortable for an entrepreneur.

Even if a purely individualized product is made at the request of a customer, the right of withdrawal cannot simply be overridden.

According to § 312g paragraph 2 number 1 BGB, the right of withdrawal may be excluded, since individualized goods may no longer be resold after a withdrawal.

Therefore, the product must be so individualized (e.g. the production of a made-to-measure item of clothing) that it cannot be resold.

However, if the customization can be easily reversed (for example other buttons on the suit), the customer can make use of his right of objection.

Anyone who, as a trader, wants to use third-party patterns, crochet, sewing or construction instructions must take into account the fact that many instructions and templates are protected by copyright. You therefore need a license.

Often this is associated with license fees and relates to a set number of manufactured products.

If a dealer commercially uses an unlicensed manual, he is committing a copyright infringement.

Based on a plush toy, the labeling requirements that may apply are listed below.

The textile labeling

Though no toys Textile labeling In addition to plush toys, other things such as costumes or disguises for children can be sorted in a shop in the Games category. Nevertheless, they are not considered games in the sense of the Textile Labeling Ordinance.

The labeling requirement stipulated there provides that the buyer is informed of what he is wearing on his skin.

Costumes or disguises for children are therefore also subject to labeling and, in addition to a textile label, must also contain information about the fiber composition in the online shop.

The manufacturer's information

Section 6 of the Product Safety Act prescribes the manufacturer's information on a product.

Furthermore, it must be clear at which address he can be contacted.

If this information cannot be provided on the product itself, it must be stated on the packaging.

In our example, the information can be given on a label on the plush toy.

The warnings

The second regulation of the Product Safety Act regulates special information requirements for toys.

If the toy consists of particularly small parts, the buyer must be informed with a warning that this product is by no means suitable for children under three years of age. In our example, the plush toy, these can be the eyes or accessories such as pearl necklaces or the like.

The CE mark

An important issue for manufacturers of toys is the legally prescribed CE marking for toys.

Even if you produce items that are not recognizable as toys at first glance, you should find out more about them.

Directive 2009/48 / EC states: "Toys are all products that are designed or obviously intended to be used by children up to the age of 14".

Here it is defined that products are also considered toys if a child could hold them for them.

Examples include door decorations in the shape of cuddly toys or backpacks in the shape of animals.

In such cases, you as the manufacturer must and can check yourself whether your product complies with the strict requirements of the EU.

In the case of toys, it is often a question of checking whether quantities of harmful substances have been exceeded.

It is therefore often advisable to commission an external body such as TÜV or Dekra to carry out the test. If your product meets the legal requirements, the CE mark must be attached to the product.

In the event that the toy does not pass the test, it must not be labeled and under no circumstances be placed on the market.

Regardless of whether you make your products by hand or not: an entrepreneur is an entrepreneur.

This documentation is only intended to provide you with a brief overview of any legal difficulties in the handmade area.

It is therefore urgently advisable not to simply "go about it".

The handmade area may have an uncomplicated effect on many retailers; In reality, however, the legislature makes no difference at this point. If you would like to work in this area, you should therefore obtain sufficient information beforehand.