How to Respond to False Claims of Trademark or Copyright Infringement on Etsy

By Josh Gerben, Esq.

If you run an Etsy store, or are considering starting one, you already know how popular that online marketplace is. The demand for, and supply of, the kind of handmade, unique products sold on Etsy are both so high that the site has grown from one million members in 2008 to nearly 44 million as of January 2015. What does that mean for trademarks? For one thing, it’s incredibly important to choose a unique, strong mark for the name of your Etsy store, and, for the products that you are selling on your store. That difficulty simply means that you must be more vigilant and thorough in researching and selecting a mark. Another effect of Etsy’s popularity is the high level of competition to attract customers – competition that can lead to illegitimate practices by some users to try and gain an unfair advantage.

One of the most common of these practices is filing a false claim of copyright or trademark infringement. You may have even received one of these notices already. Here’s what you need to know about how Etsy handles these situations, and what you can do to protect and regain your rights as an Etsy store owner and trademark holder.

Etsy does not appear to individually review claims of copyright or trademark infringement to determine their validity

If one Etsy user makes a claim of trademark or copyright infringement against another user, Etsy appears to almost always take down the allegedly infringing material.  While Etsy may have some sort of internal review process, it does not appear as though they spend a lot of time reviewing or verifing the accuracy of the claim.  That being said, Etsy does adhere to the DMCA (Digital Millennium Copyright Act).  This allows a user who receives a false copyright infringement claim to file a DMCA counter notice to have the products re-listed.  The Etsy policy on how to file a counterclaim to a false trademark claim is less clear.

Filing a DMCA Counter Notice with Etsy for false copyright claims

Etsy’s policies mean that if you receive a false copyright infringement claim from another Etsy user, your products will likely be immediately removed, and, a “strike” will be issued against your store.  If you receive too many of these intellectual property “strikes” Etsy has been known to shut down an entire store.  For these reasons, if you receive a false copyright infringement claim you should immediately seek counsel from an intellectual property attorney to assist you in filing a DMCA counter notice with Etsy. There are several legal requirements to filing a proper counter notice, therefore, it is very important to seek the advice of an attorney and not try to do it on your own.

Filing a counter notice with Etsy for a false trademark claim

Unlike a copyright claim, the Etsy policy on trademark claims is less clear.  If someone files a trademark claim and does not have a federal trademark registration, it still appears that Etsy will remove the infringing material.  That being said, in our experience, if you are the subject of a false trademark claim the only way to fully refute the claim with Etsy is to prove that you own the federal trademark registration.  Because it takes up to eight months (or longer) to obtain a federal trademark registration, it is incredibly important that you file trademarks for the name of your Etsy store and for any products you are selling on Etsy.  This will protect you from another user attempting to file a false trademark claim against your company.

Obtaining assistance from an attorney to respond to an Etsy take-down claim

Any copyright or trademark infringement claim or challenge through Etsy can be complicated to defend.  Moreover, as mentioned earlier, it is incredibly important to protect your reputation with Etsy so that action is not taken against your entire store.  An experienced intellectual property attorney can provide knowledgeable assistance. Regardless of how confident you feel in your claim to your mark and your defense against a false infringement accusation, the services of an attorney can help you be more certain that you’re following the correct avenues to retain and defend your rights.

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Josh Gerben, Esq.

Josh Gerben, Esq. is the founder and principal of Gerben IP. In 2008, Mr. Gerben started the firm to provide high-quality trademark services at reasonable prices. Today, he is recognized by the World Trademark Review as a top trademark filer, having registered over 7,500 trademarks. The contents of this blog are for informational purposes only and may not be relied on as legal advice.