Fraudulent IP Infringement issue but no counter notice link to challenge in email from Etsy?

[FennecDesignCo]

Our shop received an email that a hoodie we make was taken down due to copyright infringement. This is a best selling original illustrated piece we've printed for many years and I am more than a little upset to see it removed for fraudulent reasons out of the blue.

When I went to check out the infringement claim the trademark itself has nothing to do with our item which seems even stranger. The filing is for a brand's name on a hoodie; but our hoodie doesn't contain the words listed... or any words for that matter. Even stranger it appears that the original claim was filed through some kind of AI powered infringement service so I don't think the trademark owner even did the filing themselves.

A quick google tells me I should have a legal right to file a counter notice and that there should be a link in the email to do so....but I can't find a link anywhere in the email? Is this a technical issue on Etsy's end? Am I missing something in my admitted panic, or is there another place I can go to file a counter claim? 

[BrooklynStVintage]

Etsy's Help page states that you should have recieve the contact information of the party who filed it. I would start with the party who initiated it and go from there. Hopefully you can talk to a real person and find out the reason for the notice. Hopefully a total mistake, as bots can make, ..all the time.

https://help.etsy.com/hc/en-us/articles/360034079714-What-to-Do-if-You-Receive-a-Notice-of-Intellect...

[FennecDesignCo]

Unfortunately the email provided appears to be for the AI IP service that filed and not the claimant.

[BrooklynStVintage]

Yes I read that however I would contact them and get some information.

[CraftyCornishMaids]

you can counterclaim copyright

if it's trademark, you have to go to court

[FennecDesignCo]

Yes I understand that I can counterclaim ( I mention this in my post). I am asking where the link is to do so as there wasn't one provided in the email even though google tells me there should have been.

[FallenAngelBrass]

@FennecDesignCo 

Etsy deactivated your listing because of a trademark violation, not a copyright violation.  You cannot counterclaim a trademark deactivation.  You must pursue this with the trademark holder who contacted Etsy.  Etsy is done with the matter. 

[FennecDesignCo]

Oh wow ... I had no idea. I'm totally unfamiliar with this brand making the claim and can find no reason why our item would have been flagged in the first place (I even double checked the tags for typos in case). I guess I'll try to reach out to the email in the claim? I'm not sure I can afford a lawyer to pursue this  

[FancyTogs]

Try here:

https://www.etsy.com/legal/ip

Etsy's counter notice is only for copyright infringement, within the USA.

Lawrence (Clare's other half)

[NanaLetha]

@FennecDesignCo  Trademark or copyright?

[Amaradorn]

@NanaLetha OP says trademark.

[Amaradorn]

A trademark can cover more than just words, it can also be applied to shapes (e.g. Mickey mouse ears) or colours (e.g. Tiffany blue) and other identifying characteristics. It might help to research the trademark in question and see who owns it and what class of goods it protects. Then you would need to contact the trademark owner directly if you want to object and appeal.

If it is a wordmark then also bear in mind that the 'word' does not need to be on the product itself - it could be a problem if was mentioned anywhere in the listing text (title, descriptions, or tags).

[FennecDesignCo]

It is not in the words of the description nor the tags. The hoodie on our shop is a detailed complex illustration of a variety of natural skulls and the trademarked term is very basic unrelated words from a streetwear brand. There is no correlation that I can see whatsoever.

[SmudgePlant]

I wonder if Etsy put the trademarked term in the Explore Related Searches in your listing and AI caught that. I know in one of my listings, it says "iPad Cleaner ", which is not one of my tags.  Might be something you can explain to the trademark holder to get your listing back.

[Amaradorn]

@SmudgePlant We've often wondered about that - i.e. whether related searches (keywords that Etsy associates) have any influence or power over listings being reported for IP infringement. 

[FennecDesignCo]

That's a horrifying and very upsetting thought. I am truly so upset and confused as to what to do. This brand truly couldn't be more distant from what we do...and I have no idea what might have caused this. 

[Amaradorn]

@FennecDesignCo I'm sorry, you might have to get professional legal advice. We can't really help you without knowing all the details and even then, we are just other sellers. Very few of us here have any official legal background.

[BootifulLabels · Accepted solution]

This brand truly couldn't be more distant from what we do...

If that is the case, you need to contact the TM owner or their agent and query the removal.  If they take a closer look and agree with you that it is not in breach, they must then instruct Etsy to reinstate the listing.  Etsy cannot reinstate the item without that authority.

As with many things in life, act first and ask questions later is the common practice.  Trademark infringement is rife everywhere, and the sheer volume of cases means that the enforcers tend to do a wide search and issue notices for everything.  As a general rule, those that know they are infringing will not bother to query it, they just accept the removal and relist the item elsewhere (until it is found there as well).  If you are sure your item is not in breach, contact the TM owner or their agent and put your case to them.  If they won't lift the claim, and you are absolutely sure you are not infringing, you need to take legal action. 

Think of it like random breath testing or speed traps.  A lot of people are inconvenienced in order to catch the smaller number that are guilty, but it gets more offenders in the long run.

[FennecDesignCo]

I have reached out to the email provided with the claim and will hope that I hear back from them quickly and that it can be resolved. I am recovering from major spine surgery and hiring a lawyer would be a serious strain on our already burdened finances, but I will pursue legal action if I have to as I know that this is 100% errant. 

I understand the need to enforce trademark, but I also have major issues with companies using AI software to file these claims knowing how error prone it can be. It would certainly be easier to shrug this off as just the nature of how this stuff works if it wasn't actively effecting my ability to sell a very popular item in my shop during a time when I have never needed to sell more. I may just be a one among many to this brand but this has real material impact on my life.

[SmudgePlant]

Good luck OP and I wish you a complete recovery. I seem to remember reading about a similar predicament to yours and the TM owner agreed that it was a mistake and contacted Etsy. I think it still took Etsy awhile to put the listing back up but I think it all worked out in the end. I tried earlier to find the post but had to deal with a puppy who needed exercise. 

[SmudgePlant]

 I found this:

by TheAtticRooms

Conversation Maker

‎04-01-2024 06:13 AM

A couple of years ago, I had an IP takedown issued from a company who work on behalf of the BBC for two of my party banners as they featured silhouetted ballroom dancers. After being unable to get a reply from that company I wrote directly to the BBC's legal department and was able to speak with them about it and they then instructed the company themselves to retract the IP claims. Etsy then reinstated my listings. I would urge you not to relist until you have spoken directly with the people who complained. It is the safest way to ensure you don't get into any trouble.