Etsy Trademark Infringement
Etsy has been growing in popularity over the years as the preferred marketplace for handmade and vintage items. Due to the platform’s explosion in popularity, though, Etsy trademark infringement has become a rampant issue. In fact, violations of this type are so common that the company has essentially automated the bulk of its intellectual property (IP) processes.
In an effort to avoid liability, Etsy will remove any product after receiving a trademark violation report. This can cause issues for those wrongfully accused of infringement.
Trademark Infringement on Etsy
Etsy is composed of third-party sellers who have their own shops, manage their own inventory and create their own policies. This means every seller is personally responsible for following intellectual property laws while selling. When they engage in any unauthorized use of another brand’s trademark, they may be held liable for trademark infringement by the platform or federal courts.
This has become an increasingly frequent issue over the years. While the company earned 450,000 sellers in just its first two years, this number has increased to over 2 million. Active buyers also increased to over 40 million. As the number of users increased, so did the frequency of trademark infringement cases.
Note that there is more than one type of Etsy trademark infringement:
- Counterfeit items sold featuring trademarks the seller doesn’t own.
- Misusing protected trade dress to imply sponsorship on Etsy.
- Unauthorized use of trademarks in tags to improve search results.
- Working as a reseller of infringing merchandise.
- Any other action that would cause a likelihood of confusion among consumers.
Recent studies have found that up to 40 percent of merchandise sold online is counterfeit. This is a serious issue that will only get worse if IP owners don’t report misuse. Etsy states that they take infringement on their platform very seriously, and this is true to some extent. They make it very easy to report infringing material, and their intellectual property policy states that they may reject notices that appear to be made in bad faith. A cursory online search, however, reveals countless sellers who have been victims of fraudulently submitted reports.
The site’s own policy states, “Etsy [isn’t] in a position to offer legal advice or make legal determinations whether a shop’s content infringes someone else’s intellectual property.” Once a properly filed notice is received, they remove any content that’s allegedly infringing. This simplifies the process for complainants, but it puts the burden on those accused of infringement.
Although the platform won’t make a legal determination, you should still consider the following factors if you think Etsy trademark infringement is occurring:
- Are products competing? If two products aren’t similar or competing, consumers are less likely to confuse them.
- Are trademarks similar? A trademark that’s isn’t identical may still be infringing if it’s confusingly similar.
- How strong is your trademark? If your brand identifier is fanciful or otherwise distinctive, infringement may occur even with dissimilar items thanks to trademark dilution.
- Are consumers legitimately confused? Evidence of actual consumer confusion is the strongest indicator of infringement.
These are a few of the considerations – known as the Sleekcraft Factors – that federal courts will take into account when deciding cases of infringement. This makes them good benchmarks in deciding if you’re engaged in or if you are a victim of Etsy trademark infringement. It’s important to never file a notice in bad faith since this may be viewed as unfair competition and result in your own account’s removal.
Cease and Desist Letter
While Etsy’s trademark infringement reporting tool is effective, it won’t necessarily stop an infringer in their tracks. Violating accounts typically aren’t removed upon their first strike, and this leaves the door open for continued abuses. Additionally, even individuals who have their accounts removed can simply start a new one with a fresh email address.
Because of this, it’s often ideal to send a trademark cease and desist letter. These notices carry more force because it shows infringers that you’re willing to take concrete legal steps to protect your intellectual property. Cease and desist letters are meant to notify a third party of their infringing activities and hinder their ability to later claim ignorance of such violations. Not only does this begin an evidentiary trail, but it can also result in substantially higher court awards if your Etsy trademark infringement case ends up in before a judge.
Reporting Trademark Infringement on Etsy
Thanks to increased focus on intellectual property infringement, reporting trademark infringement on Etsy has been simplified on the platform. You’ll need to begin by visiting their Intellectual Property Infringement Report page. Remember that you are signing a legal document by submitting this report. False claims of infringement can have hefty legal consequences, so it’s essential that you ensure any report you file is appropriate. Due to the potential legal exposure in reporting an infringement, we advise that you only use a trademark lawyer to file a report for you.
Responding to an Etsy Trademark Infringement Notice
There may be times when you need to respond to an Etsy trademark infringement notice. Competitors sometimes take advantage of the ease in which a report can be submitted, and in doing so, they hinder their competition’s ability to conduct business. Since 97 percent of shops are home-run brands, these dishonest reporters feel that most will not have the resources to respond.
When Etsy removes a listing or shop based on a trademark infringement notice, the owner should hire a trademark attorney. Unlike in cases of copyright violations, the platform offers no process for responding to removals based on trademark claims. In fact, it states that the best course of action is to contact the reporting party and discuss the issue directly.
Our typical response to an Etsy trademark infringement complaint might include:
- Explanation of why content isn’t infringing.
- You’re the registered IP owner.
- The trademarks are not likely to be confused.
- You’re licensed to sell the product.
- You’re selling a single product protected by the first sale doctrine.
- Request explanation of how content is infringing.
- Reminder that bad faith reports are prosecutable under the law.
- Demand that the complainant contact Etsy to retract the report.
Etsy has over 60 million listings on the platform it must monitor. This means that dealing with false reports individually would likely be very costly for the company. The result is that sellers who are wrongfully accused of Etsy trademark infringement are left at a disadvantage. You can try contacting the legal department directly at email@example.com, but few users have had any success going this route this without legal assistance.
How to Avoid Trademark Infringement on Etsy
The best way to prevent your listings or store from being removed is to avoid trademark infringement on Etsy entirely. There are also ways to minimize the likelihood of receiving a false report of infringement. Utilize the following tips to keep your Etsy store within legal bounds:
- Conduct a trademark search: A thorough trademark search will identify any trademarks you may come in conflict with.
- Don’t take shortcuts with tags: Utilizing trademarked verbiage in your tags to improve search results is considered a form of infringement.
- Review Etsy legal tools: Etsy offers over 20 legal articles on topics ranging from creative commons licensing to fan art.
- Register your trademark: You can use the federal trademark symbol once you’re registered with the USPTO. This will show potential IP trolls that you’re serious about protecting your property, and the likelihood of false reports will diminish.
- Play it safe: If you’re not sure whether your listing would violate trademark laws, it’s best to either not sell the item or get legal advice on whether you’re in the clear.
Sellers who are reported for Etsy trademark infringement numerous times face the risk of having their account deleted. This can be very costly – especially if you’ve spent significant time building your business. This is why it’s always ideal to be absolutely sure you have the right to sell an item or use specific trademarks in your store.
Etsy Trademark Litigation
If a trademark infringement issue cannot be resolved with a case and desist letter, your best recourse may be federal trademark litigation. Additionally, there’s nothing precluding trademark owners from filing lawsuits against infringers on the platform – even if the violating listing has already been removed.
The following considerations are typically taken into account before engaging in litigation:
- Have you tried a cease and desist letter?
- Does it appear as if the infringement was malicious or willful?
- Is infringement ongoing?
- Did you experience a loss of profits?
- Could brand dilution be taking place?
Minor instances of Etsy trademark infringement – especially those that end after a cease and desist letter or report on the platform – may not be worth the cost of a lawsuit. Unfortunately, litigation may be the only appropriate response if your listing is wrongfully removed and the complainant refuses to contact Etsy to retract their submission.
If you have an issue related to Etsy trademark infringement, please feel free to contact us for a consultation.