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. 

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 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 the notice, and if all the relevant information is provided, Etsy removes or disables the listings. 

What is intellectual property?

Intellectual property refers to creations of the mind, such as inventions; literary and artistic works; designs; and symbols, names and images used in commerce, 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 may not be 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 should consider filing a counter-notice under the Digital Millennium Copyright Act (DMCA).

A DMCA counter-notice puts the other side on the spot. The other side has to file a court action within 10 days to obtain an injunction (an order to keep your listing offline). The other side then has to inform Etsy of that court ordered injunction; otherwise, Etsy will allow your listing to go back online.  

Before filing a counter-notice, I highly encourage you to discuss the case with an attorney. The counter-notice informs Etsy under oath that your listing does not infringe the other party’s copyright(s). The notice gives the other side your information, which the other side may not have. You also agree that the other side has jurisdiction to bring a lawsuit against you in a federal court where you are located (if you live in the U.S.) or where Etsy is located (if you are not in the U.S.).

Despite these risks, if you let others continually and maliciously take down your listings despite no evidence of copyright infringement, Etsy may consider you a “repeat infringer” and will 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 wrongfully 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.

Final Thoughts!

Again, don't panic! You have options. Take a deep breath and if you still have questions, feel free to contact me at jbathke@iphorgan.com.