My handmade items are being deactivated for not being handmade

[BYNDesignsUS]

Hello, I hope someone here can help me. I design, (3d) print, and sell different accessories for retro gaming systems. Everything in my store I designed from scratch in a 3d modeling program. I then print the products in my basement and ship them out. As far as I can tell by Etsys policy this qualifies as "handemade". However, over the past 2 hours 2 of my products have been deactivated for not being handmade. I contacted Etsy but all I got back was a copy and paste FAQ sheet which says there is no appeal process for deactivated products.

Has anyone else had this experience? Am I misreading Etsys policy's? I need to figure out how to stop the rest of my store from being shutdown. Thank you for any input.

[BagmakerSupply]

@BYNDesignsUS  :  First off, your shop is full of (perceived) copyright and trademark infringement. Do you have permission to use all of that intellectual property?

DO NOT open a new issue or contact Etsy multiple times about the same issue (doing so closes the one you already opened and puts the new one on the bottom of the pile). Every eMail from Etsy support will have a link something like "I Still Need Help". Click on that link (or actually reply stating that you still need help) to keep the report alive. You may have to do this innumerable times, but once on each Etsy reply before anything is done but do not give up.

[OneEyeCatStudio]

This is likely happening because if you actually designed and made them, you cannot legally use another entity's trademarked name to market them without their permission.

Hence, Etsy thinks that the IP owners made them, not you.

If you do have permission to use those names, make it clear in every listing.

[nineteen27]

making the trays for the games is fine.

but you are writing the trademarked brands name on your items and you are calling them by the trademarked brands name in your titles.

and that is a nono unless you were given permission by the trademarked brands.

so it is possible etsy thinks that you are not making the items by hand because the trademarked name is on the product.

[BYNDesignsUS]

My products do not use and trademarked or copywritten material. The titles are the only thing that uses trademarked names but that is to indicate what their designed for use with, not the actual product. The majority of these products have been posted in the store for 8+ months.

Also the E-mail I received from Etsy specifically said they were deactivated because "it does not qualify for sale as a craft supply, vintage item, or handmade item". If it was an IP problem I would assume they would have said that instead.

[OneEyeCatStudio]

"My products do not use and trademarked or copywritten material."

But your listings do and that is what Etsy is reading.

Like I said, Etsy likely thinks that the IP owners made them, not you. Because you are using a trademarked name that does not belong to you.

And if you are going to say well it's okay because I got away with it for a long time or it's okay because I see other people get away with it, then ....  well, just good luck to you.

[nineteen27]

i just looked at one a few minutes ago and it said super nintendo on the tray but now it is no longer available.

i can still see it in your reviews though.

the snes 6 game cartridge holder.

you can still see the name on the image.

[BagmakerSupply]

@BYNDesignsUS  :  As @OneEyeCatStudio said, and without getting into a discussion of what is fair or right or if your listing should be deactivated, the fact that you have been selling something for years only means that the bots have been updated. If there are other shops selling similar items it only means that they have not been caught yet.

[BYNDesignsUS]

nineteen27 you are correct. I removed that one. The 2 items Etsy removed on me were an N64 and Gameboy Cartridge holder. Neither had any markings/names/logos.

[BYNDesignsUS]

@BagmakerSupply @OneEyeCatStudio 

I completely understand some will get away with it and some wont. Either way though prohibited is prohibited.

I was just caught off guard because of the length of time and the way the email was worded. I now understand the issues. Thank you.

[BagmakerSupply]

@BYNDesignsUS  :  Because you are using trademarks, etc (presumably without the owners' permission) the bot probably thinks you are reselling items made by the trademark owner(s).

[BYNDesignsUS]

Thank you for the replies. Although the names not on the product, I see now how the title could imply it is a name brand item. Etsys bot likely thinks is not "handmade" because of this. If it was actually an IP problem I would think the email from Etsy would have said that.

I looked back at my history and it just took 1 year and 2 months for Etsy to catch this issue. I will have to figure out how to properly title and describe my items.

[leinweberstudio]

If it was actually an IP problem I would think the email from Etsy would have said that.

For legal reasons (Safe Harbor status) Etsy cannot come right out and tell you it is an IP infringement. All they can do is give you some vague reason like "violation of site policies" or, in your case, "not handmade".

[PlatypusDream · Accepted solution]

You are using the name of the game... from a title: 

"N64 Game Display Stand - Nintendo 64"

NOT

"Game Display Stand FOR Nintendo 64 Games"

you imply that these are official items.

The PHYSICAL item doesn't have to have the name on it.

Every company has proper use standards for their Trademarked names.  Have you checked into what is legal for your items?

Recently Kleenex has been going after crocheters for selling "Kleenex Box Covers".... because those handmade crafters are using the trademarked names without permission.

[BYNDesignsUS]

Thank you. I have deactivated all my items until I do more research and correct my titles and descriptions.

[PlatypusDream]

@BYNDesignsUS 

https://en-americas-support.nintendo.com/app/answers/detail/a_id/50035/~/intellectual-property-polic...

[GlitzeezArt]

thank you

[Jewels2at]

I see you have removed your listings. 

I say good for you...to get them cleaned up and remove any trademark infringements.

[AnchorRoadVintage]

Your items could have been deactivated for trademark issues, although I'm not sure how bots are deactivating for that since it is supposed to require a DMCA. Etsy is notoriously bad at notifying sellers of something wrong with their shop, and then even if they do notify them, they usually get the reason wrong, or if it's the right reason, the shop isn't committing that particular Etsy crime.  It's almost never a correctly worded notice that states the correct reason.  

[secondarycreations]

DMCAs are related to copyright infringement, not trademark. 

[AnchorRoadVintage]

Oops, yes, you're right.  Regardless, trademark takedowns should be at the behest of the mark owner, not a bot. The rest of what I said stands, if Etsy bothers to notify a shop, it's usually for the wrong reason. 

[blzopbhi]

It does not appear the issue is IP infringement, something that the seller would be informed is the cause for deactivation and happens only after the IP rights owner asks for a DMC takedown of the alleged offending item.

It does seem, though, that the issue is that the bot sees the listings as counterfeit items:

"Unauthorized replicas or copies of items are prohibited on Etsy. We consider counterfeit or unauthor...."

No DMCA takedown request is needed - it is all up to the bot or Etsy representative who makes the final decision. Etsy reacts based on the old saw, "if it walks like a duck..." until proven otherwise.

[BagmakerSupply]

@blzopbhi  :  Only copyright infringements require a DCMA takedown, other intellectual property infringements (trademark and patent) do not.

[BagmakerSupply]

Based on the message that he said he received, the bot probably thinks he is reselling items made by the trademark owner(s).

[blzopbhi]

@BagmakerSupply  True, but for patent or TM infringement, the IP owner/rep must first contact the alleged infringer, and no mention of that has been made.

No notice is required to be given by Etsy or anyone else when they conclude an item fits their definition of counterfeit. See the information in the link already provided.