Etsy published a new guide to Intellectual Property to help “demystify” the issue for sellers. Etsy said that without a solid understanding of IP rights, sellers who want to comply with its policies might not appreciate the risk of the items they’re listing.
In an announcement on Friday, Etsy said the guide brings together new articles and the best of its published IP guidance in one place.
Etsy said the guide covers topics including the following:
- Elements of IP we want to highlight
- Common seller questions (and answers) about IP rights
- Information on fan art and the Fair Use Doctrine
- Detailed insight into our policies on counterfeit items, reselling, and what constitutes “vintage,” just to name a few
Etsy linked to the “Ultimate Guide to Intellectual Property” and said it hoped it would help sellers feel more confident and informed as they list items in their Etsy shop.
Generally, sellers encounter IP issues when an ecommerce platform removes a listing after a brand sends it a takedown notice. The Verge recently reported on the challenge this poses for sellers in a December article.
The Verge wrote: “List a secondhand product from fashion companies like Michael Kors, Dior, or YSL, and you could soon be facing down an IP notice trying to block or restrict the sale, say online sellers. These takedowns can destabilize independent merchants and jeopardize their livelihoods.”
Brands are even reporting sellers on Facebook’s Instagram social media platform, The Verge reported.
And despite the first sale doctrine that allows sellers to resell an item they’ve purchased, “legal sales can get caught in a net cast by brands that have a financial incentive to search for counterfeits or unauthorized resellers through takedowns,” it wrote. “Small businesses often have no recourse even if they know their sale is legal.”
The Verge talked to a seller who ran into trouble on Etsy, but the publication said Etsy declined to comment on the record about the issue.
Some sellers also look at IP issues from the other side, such as when a rival publishes their photographs or sells a knockoff item.
Online marketplaces may sometimes feel caught in the middle – they are required to remove any specified content when they receive a report of infringement that complies, Etsy states in Chapter Two of its new IP Guide.
In a FAQ in that chapter, Etsy answers the question “What happens if I receive a notice?” with the following advice:
“We encourage you to directly contact the party that provided the report to Etsy if you have questions about the infringement claim, why your content was identified as allegedly infringing, or how to resolve the issue. Their contact information is included in the email we sent when we removed the listing. You can also consider speaking to an attorney.”
You can find the Etsy Ultimate Guide to Intellectual Property here – and feel free to share your thoughts on how to handle IP issues and how marketplaces could improve how they handle requests for assistance from sellers.
My shop got caught up in one of those sweeps. It was for a brand name and product type that we do not even carry. The “net” that was cast included KAW although the company name is KAWS. Our artwork was for a travel post to Kaw Point, a National Historic site in Kansas. The National Park Service owns the name Kaw Point, not this company. I contacted the party listed in the take down email and they cleared it up for me. It took a bit of work, but the take down was not justified. I was able to relist the item.
However, Etsy’s response to me to inform me that IP claim against me was recinded, was rather obnoxious. The overall tone was that I was lucky this time, and my account would not be penalized as long as there are no other outstanding IP claims against me. I never intentionally infringe. This claim was bogus, and I should have been offered an apology instead of implying that my business model is ripping off others IP.
My advise to anyone selling in an online marketplace – find a really good business attorney. Establish a relationship with them. When you do get an IP claim, or if you need to file one, it is better to have a phone number handy with a person who knows you than it is to start searching. Sometimes an email or letter in legal speak is very convincing.