Intellectual Property Law Firm – Online IP infringement via Etsy stores 

FOR IMMEDIATE HELP – Click here to fill out our DMCA Copyright Infringement Takedown Questionnaire

Introduction

What is Etsy?  It is a unique online marketplace where sellers can sell UNIQUE things.  According to their website:

“Etsy is a unique marketplace. Buyers come to Etsy to purchase items that they might not find anywhere else. Everything listed for sale on Etsy must be handmade, vintage, or a craft supply.”

However, wherever creativity can be found, you can also usually find copycats and counterfeiters, especially where one seller realizes another seller is doing really well on a particular product line.  When this happens, this can create a situation where a cease and desist letter needs to be sent, a DMCA takedown notice be sent and/or a federal copyright lawsuit may need to be filed to seek an injunction (see below) to stop the sale of infringing goods.  This blog provides some general legal information on how to handle these types of cases, as both a rights holder, and those accused of being an infringer.

We offer low flat rate fees and free initial consultations.  Contact as at (877) 276-5084.  We handle federal copyright cases across the United States.

Types of DMCA infringement claims that might be made through Etsy?

Some of the top types of infringement claims you might see a party raise in regard to an Etsy store are:

1.  A business is using your copyrighted artwork on your homemade products (ex. fashion accessories, jewelry, household items, interior design items, stuff for pets, wedding gifts, bracelets, gifts, educational and toys, tech products, gag gifts, etc.)
2.  A company is using your trademarked logos or slogans on your products (either knowingly or possibly even unintentionally
3. Counterfeit good are at issue
4. “Copycat” goods
5. Patented products being sold

Etsy markets itself “as a venue for artists, designers, and makers” the types of possible IP infringements run the spectrum and most goods for sale on the site can be reproduced by someone else and this frequently happens.

Attorney Steve® explains the Etsy DMCA process on this Podcast!

PODCAST:  Click on the image above to watch our podcast.  You can find out more information on the Etsy website.

Sample infringement notice from Etsy

Here is a sample notice that may be sent to an online infringer (this may no longer be current)

Dear XXXX,

Etsy received a notice of copyright infringement from XXXX alleging that certain material on Etsy is not authorized. In accordance with our Intellectual Property Policy, Etsy deactivated the 11 listings specified as infringing.

If you have questions about the notice, you may consider contacting [insert party claiming infringement] , the authorized representative of XXXX who provided Etsy with the notice, or talk to an attorney. Also, please reference the following help article for insight about how Etsy handles these types of notices and issues: https://www.etsy.com/help/article/3896

Do not re-activate the material unless you've resolved the issue with the notifying party and/or intellectual property owner. Repeat notices of infringement may result in the loss of account privileges.

If you have a good faith belief that a notice of copyright infringement involved a misidentification or mistake, you may consider submitting a DMCA counter notice. You can read our DMCA counter notice policy here, and you can submit a DMCA counter notice using the following unique link: https://www.etsy.com/legal/ip/counter

To learn more about the problem of making bad faith “mistaken” or “misidentification” claims read this.

What is the Etsy DMCA dispute process?

1.  You can fill out the complaint form.
2. The form asks you to verify that you are the owner of the intellectual property or their agent.
3. The party that receives the complaint can voluntarily takedown the product alleged to be infringing or file a DMCA counter notice (this is basically a challenge to the alleged infringement)
4. Etsy will notify the parties of the dispute
5. If a counter-notification is filed, the party alleging infringement usually has 10 days to file a federal court lawsuit seeking an injunction (usually at this point you would consider filing a copyright infringement claims for damages, and seek an “injunction” to stop the seller from selling the infringing item that infringes on a patent, copyright or trademark.

You can find more great information and stories for actual Etsy users by following this link to IP Q&A answers.

Here is an important link to what Etsy seller should know about the European Union rules.

What does the Counter Notification Look Like?

The counter notification asks you to electronically file the following under penalty of perjury:

I swear under penalty of perjury that I have a good faith belief that the material was removed or disabled by mistake or because of misidentification of the material I consent to the jurisdiction of the Federal Court for the judicial district in which I am located, or if my address is outside of the United States, for any judicial district in which Etsy is located, and that I will accept service of process from the person who provided the original notification or an agent of such person The consent to jurisdiction basically lets you know there name and contact information and what jurisdiction they agree to be sued in.  It is important to know a little bit about internet jurisdiction before considering where to file a copyright infringement lawsuit.  In some cases you might be able to file a lawsuit in another area (even if they did not consent to it) where jurisdiction is proper.

Etsy owner strikes back against counter-notification claim by filing 512(f) claim in the Copyright Claims Board ("CCB").

Should I copyright my products before opening up an online shop on Etsy?

Yes, if you have a product line that is unique and novel and you want to obtain federal copyright protection for your goods, you should consider filing a formal copyright registration.  We can help you do that inexpensively and help you police your product in the marketplace by sending take-down notices, assisting with licensing of your copyrights and sending cease and desist letters and engaging in arbitration or litigation if needed.  Keep in mind, you cannot file a lawsuit for copyright infringement unless you have copyrighted your creative works such as a photo, video, film, music or other creative work.,

For more information about our copyright registration services.

According to their website, what happens next is:

Here is some more information from their website:

“Once Etsy confirms that the counter notice includes all of the information required by the DMCA, Etsy emails both parties: the member submitting the counter notice and the party who submitted the initial infringement claim. Etsy provides a copy of the counter notice to the party who submitted the initial infringement claim, who may use the information to obtain a court order to restrain you from reactivating the material.  If, within 10 business days of our receipt of your counter notice, the party who submitted the initial copyright claim doesn't inform us of an action seeking a court order against you, the material specified in the counter notice may be reactivated. Reactivating the material before this time may result in account termination.  If you have any questions or concerns, please consult an attorney. You may also consider communicating directly with the party who filed the initial infringement claim. Their contact information can be found in the email Etsy sent informing you of the notice of infringement.”

Example of a copyright infringement claim (and the dangers of not responding to a lawsuit)

One case that came to our office involved the use of picture frames that a seller was selling on the Etsy website.  The picture frame was claimed to be infringing on a similar frame that a copyright holder claimed to own.  There was a piece that was being used by both parties.  The holder of the copyright asserted a copyright dispute against the seller.  The seller really had no idea what was going on as she believed she had independently created the product (which really did look quite similar).  At any rate, the parties were not able to resolve the dispute and eventually the copyright holder decided to take the case into the Courts and filed a copyright lawsuit in a federal district court.  The defendants (the selller on Etsy), failed to appear ore respond to the lawsuit as she did not believe she was properly sued and served a copy of the summons and complaint.  As such, after the time to answer the complaint had expired, the copyright holder went ahead and filed for a default judgement.  Another bogus notice was sent out, and the copyright holder (keep in mind I believe they had a speculative infringement case to begin with), they secured a default judgement in the amount of $60,000.  This was for “willful copyright infringement” for just a couple a frames with a total sales of $1,000.  This was a big burn and now she has to find an attorney that can seek to unwind the default.

Tips for Online Sellers considering filing an infringement lawsuit

Here are some things to think about BEFORE making a decision to file a federal court lawsuit or seeking an injunction against another Etsy seller:

1. Did you register your copyright?  You must register a copyright before you file a federal court lawsuit.
2. Did the other store owner have “access” to your copyrighted work?  Can you show they were aware of your product?
3. Are your product(s) and theirs “substantially similar” (this is the test for infringement).  Sometimes you can look at one product and it may seem “similar” but the test for copyright infringement demands the two products be “substantially” similar and you need to make an honest assessment about that.  We can help.
4. Does the seller you want to go after have any assets?  Is it a real company or just a part time gig for them?  Typically you want to file an infringement lawsuit against someone who has something to go after, or someone who is really stealing clients from you.
5. Is the costs of hiring a copyright infringement attorney justified?  Typically a federal court action can cost a several thousands dollars up to $100,000 or more if the case is hotly contested.  You should probably discuss this with counsel before committing to a litigation strategy.

Resources

1.  Form to report intellectual property infringement to Etsy
2. Etsy intellectual property policy
3. Have our law firm serve as your DMCA agent
4. Etsy intellectual property infringement policy

According to their policy:

“Counter Notification If Etsy receives a DMCA counter notification, the removed material may be replaced or access to it may be restored 10 business days after receipt of the counter notice, unless the copyright owner files an action seeking a court order against the allegedly infringing party and informs Etsy of this action. Etsy sends a copy of the counter notice to the original complaining party.

More information about obtaining an injunction to stop copyright or trademark infringement

VIDEO:  Click on the picture to watch Attorney Steve explain the injunction process under F.R.C.P. Rule 65.

Contact a Copyright lawyer to handle your Etsy DMCA and IP disputes

We can help Etsy store sellers in copyright and trademark infringement matters and DMCA litigation.  We can draft and respond to cease and desist letters including Etsy complaints and file federal court lawsuits to seek to stop infringement of copyright and trademark. We have a strong track record of success handling and resolving federal copyright law cases including software infringement, BSA and Autodesk audits, photography infringement and illegal and file sharing (ex. Strike 3 Holdings, LLC and Malibu Media defense) and other IP disputes.

Contact us for more information at (877) 276-5084.  We look forward to serving as your IP counsel.  We offer low flat rate legal fees to make it affordable to hire our firm to represent you without having to worry about out of control legal fees!