Intellectual Property | Real Estate | Technology | Software

Filing or responding to Etsy intellectual property complaints

Mar 2nd, 2016 | By | Category: Copyright Litigation

Intellectual Property Law Firm – Online IP infringement
intellectual property attorney

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.  What can happen, however, is that in creating handmade things the seller may be using copyrighted or trademarked properties of another company.  Or should I say, the other company BELIEVES that you are using their copyrighted or trademarked materials.  This can create a situation where, as seller, you are sent a cease and desist letter (or DMCA take down notice), or worse yet the intellectual property holder moves to sue you or your company for “willful copyright infringement” under the U.S. Copyright Laws.  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 claims that might be made through Etsy?

Some of the top types of claims you might see a party raise 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, 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. Patented products being sold

Etsy markets itself “as a venue for artists, designers, and makers” the types of possible IP infringements run the spectrum.

Sample infringement notice from Etsy

Here is a sample notice that may be sent to an online infringer.

Dear XXXX,

Etsy received a notice of copyright infringement from Elizabeth Pastore 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
We can help you with asserting and responding to Etsy infringement claims.

What is the complaint process to assert or defend an IP claim?

  1.  You can fill out the complaint form.  The form asks you to verify that you are the owner of the intellectual property.
  2. The party that receives the complaint can file a DMCA counter notice (this is basically a challenge to the alleged infringement)
  3. Etsy will decide the dispute and either allow the item to be sold or not.
  4. The parties can go to court if not happy with the decision and grounds exist to make a challenge

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:

Etsy provides a copy of the counter notice to the party who submitted the initial infringement claim.

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.

For more information about our copyright registration services.

According to their website, what happens next is:

“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.

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

Contact a Copyright lawyer to handle your Etsy IP dispute

We can help both buyers and sellers in copyright and trademark infringement matters and with DMCA litigation.  We can draft and respond to cease and desist letters including Etsy complaints. We have a strong track record of success handling and resolving federal copyright law cases including software infringement, audits, adult pornography illegal Bittorren downloading and sharing and other IP disputes.

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Bittorent illegal download of books, movies, games, comics, music and software explained by Attorney Steve.  Make sure to click on the RED “V” for victory.

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.

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We are a business and civil litigation firm with a focus on copyright infringement cases involving illegal movie downloads (torrent cases such as London Has Fallen, ME2 Productions and Malibu Media defense), software audits (ex. Microsoft audits, SPLA, Autodesk audit notification letter, Siemens PLM defense, SIIA, Adobe and Business Software Alliance defense) and other software vendors threatening piracy and infringement. We also handle cases involving internet law, anti-SLAPP, media law, right of publicity, trademarks & domain name infringement, and we have a niche practice area handling California BRE licensing disputes, accusations, subpoena response, statement of issues and investigations. We have offices in San Francisco, Beverly Hills, Newport Beach, San Diego & Phoenix, Arizona and accept federal copyright and trademark cases nationwide. All content on our website is general legal information only and not a substitute for legal advice, and should not be relied upon. Decisions to hire counsel should not be based on advertising alone. Blogs, videos and podcasts are authored by Steve Vondran, Esq. unless otherwise noted. We can be reached at (877) 276-5084.

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