Etsy on the Takedown-sy

Etsy just took down your most popular listing, something about “intellectual property infringement.” You ask yourself, “What happened? What do I do?”

Don’t panic! Here is an overview of why, how, and the options you have. If you are still in need of help, feel free to contact me.

Why did Etsy remove the listing?

Etsy removed your listing because either an Etsy member or a third party notified Etsy that your listing infringed that member or third party's intellectual property rights. Etsy has a submission form on its website entitled “Intellectual Property Infringement Report” - where anyone may report unauthorized content. Etsy reviews these notices and removes or disables the listings from its site. 

What are intellectual property rights?

So, what are intellectual property rights?  Intellectual property is a category of intangible rights that protect commercially valuable products of the human intellect: i.e. copyrights, trademarks, and patents.

  • A copyright is a form of legal protection for original works of authorship fixed in a tangible medium. i.e. costume jewelry, sculptures, pictures, films.
  • A trademark is a word, phrase, symbol, and/or design that identifies the source of a person or company’s goods so that customers know what they are buying, i.e. Apple, McDonald’s, Starbucks.
  • A patent is an exclusive right offered to inventors and designers to exclude others from using their new and useful inventions or unique ornamental designs.

Now that we know the lingo, here are the steps you need to take and the questions you need to ask when you receive a takedown notice. I also provide a few out of the box ideas for fighting back against those who maliciously use the takedown process when no infringement has taken place.

“What do I do?”

First, after receiving the takedown notice, review the information in the notice then review your listing.  What intellectual property right is at issue?  Most likely it will either be a copyright or trademark issue. 

What if it is a copyright issue?

If you are accused of violating someone’s copyright, you need to first determine the following:

1.    Is the item or work even copyright protected? Clothing is a great example of an item that may not be copyright protected. 

2.    Is your item similar to the item you allegedly copied?  If not “substantially similar”, then no infringement.

3.    If similar, did you independently create the item without copying.  Did you use the item or work in a new and “transformative” way.  If so, then, you are not in the wrong.

After you take a good look at the takedown notice and ask the questions above, if you still feel that the takedown was an error, incorrect, improper, or malicious you may (and should) file a counter-notice under the Digital Millennium Copyright Act (DMCA).

That notice tells Etsy that your listing does not infringe the other party or a third party’s copyright(s).  This puts the other side on the spot.  The other side has to file an action within 10 days to obtain a court ordered injunction (an order to keep your listing offline) and inform Etsy of that court ordered injunction; otherwise, Etsy will allow your listing to go back online. 

It should also be mentioned that if you do not fight back and let others continually and maliciously take down your listings despite no copyright infringement, then Etsy may eventually decide to terminate your account. 

What if it is a trademark issue?

If you are accused of trademark infringement, you want to first identify the mark, symbol, word or words that you allegedly used in your listing. Did you use someone else’s brand name?  How was the mark used?  If the trademark owner’s brand or logo is used to sell hamburgers and you are using it to sell jewelry, then you may not have infringed the person’s trademark.

If someone accuses you of trademark infringement, you do not have the option of filing the same “counter-notice” discussed above. You do, however, have the option of either handling the dispute directly with the owner of the mark or filing a lawsuit in court.  The trademark owner can always withdraw its claim of infringement with Etsy.

Here are some out of the box solutions:

If you find that an Etsy user has no true claim of infringement against you but is using the takedown process to interfere with your business, there are a few options: 

First, it should be noted, that Etsy has a policy against “Interference”. Etsy defines “Interference as “when a member intentionally tries to drive buyers away from another member’s shop.” If an Etsy user is submitting false reports to shut down your shop or remove your listings, report them to Etsy.

You may also have a legal claim for “tortious interference”, which is a cause of action against someone who wrongful interferes with your business. In this case, it would be a claim against the person or company who maliciously used the takedown process to interfere with your Etsy store.

Need further assistance?

If you need further assistance navigating this process and fighting back, please do not hesitate to contact me: (312) 380-0680; john@johnbathkelaw.com. I can help you evaluate the takedown claim and advise on how to proceed.