Etsy's Notice of Intellectual Property Infringement

[Mitsu]

Originally Posted by Gladiator

http://www.insidecounsel.com/2011/11...k-in-marketing

I seriously, again, advise you seek counsel.

I'm actually interested in this topic, not enough to seek counsel so maybe you can give me your 2 cents...

If I draw/paint, say Elsa from Disney's Frozen in Photoshop then print it to a canvas, and try to sell it using 'Frozen Inspired'... even though it's done in my own artistic style and not copied from any official Disney's photo, am I still infringing?

Without me, this item would have never existed, and isn't a direct copy of anything... and currently the rules of aspkin state that there is to be no talk about selling ⊗⊗⊗⊗ items... so I believe there is open discussion/advice asking on items of this nature.

[swbluto]

Originally Posted by Mitsu

I'm actually interested in this topic, not enough to seek counsel so maybe you can give me your 2 cents...

If I draw/paint, say Elsa from Disney's Frozen in Photoshop then print it to a canvas, and try to sell it using 'Frozen Inspired'... even though it's done in my own artistic style and not copied from any official Disney's photo, am I still infringing?

Without me, this item would have never existed, and isn't a direct copy of anything... and currently the rules of aspkin state that there is to be no talk about selling ⊗⊗⊗⊗ items... so I believe there is open discussion/advice asking on items of this nature.

Even though I believe it's legal, that won't stop your competitors from filing trademark infringement claims to take you down if they want to, regardless if it's defensible in court given that etsy likes to 'play it safe' by default. And, with platforms like etsy, it's better to not push it too far given its defacto no questions asked, no appeals likely to succeed perma-ban nature.

[Gladiator]

Originally Posted by Mitsu

I'm actually interested in this topic, not enough to seek counsel so maybe you can give me your 2 cents...

If I draw/paint, say Elsa from Disney's Frozen in Photoshop then print it to a canvas, and try to sell it using 'Frozen Inspired'... even though it's done in my own artistic style and not copied from any official Disney's photo, am I still infringing?

Without me, this item would have never existed, and isn't a direct copy of anything... and currently the rules of aspkin state that there is to be no talk about selling ⊗⊗⊗⊗ items... so I believe there is open discussion/advice asking on items of this nature.

Google derivative works. They belong to the copyright/trademark holder. You'd still be infringing.

[swbluto]

Originally Posted by Gladiator

Google derivative works. They belong to the copyright/trademark holder. You'd still be infringing.

Wikipedia

The transformation, modification or adaptation of the work must be substantial and bear its author's personality to be original and thus protected by copyright.

For example, this is protected.



By this definition, I'm almost completely sure I'm protected by copyright but that honestly doesn't matter to etsy's "Fold 'em no matter what" policy. What's common on etsy that wouldn't be protected by copyright, however, is direct art reproductions of the original (And that's pretty rampant from party bags to t-shirts).

[Gladiator]

Look, I've dealt with copyrights and trademarks in my shops and professionally for over a decade. If you don't want to take my advice, fine, but seek counsel or face consequences of your ignorance down the road. It's clear that you don't understand satire, political, commentary fair use vs copyright holders rights that override in most applications and common use. Still, Etsy or Ebay or Amazon isn't there to argue with you over Fair Use, that's what courts are for. If you get a DMCA that's unfair, file a counterclaim. Otherwise, deal with losing stores or go file a lawsuit if you feel you've been wronged and can argue fair use. These venues, regardless of their other ignorant policies, have to follow basic federal laws when it comes to rights notices or otherwise can be sued themselves. There isn't a way around it and pleading to them isn't going to work. Seek legal advice.

[swbluto]

Yo, I know my own product. And, when my own work is substantial and definitely bears my 'personality', it's protected. But, etsy is a bunch of pansies. Granted, they did let me file a counter claim as per the DMCA, but it's easier to just be more careful (And calculating) in the future. Once an account gets two hits, I'd say it's toast regardless of whatever happens afterwards as the risks are too great. A bird in the hand is worth two in the bush, and I'm looking at more viable longterm expansion strategies.

[unkown5454]

this thread is hilarious. people ste.aling property like it's their's. have fun. you won't last for sh*t. i dont give a rats a$$ how you want to convolute the situation you have created, you make money off of stea.ling designs, property, trademarks, etc.

no preaching will convince you otherwise, clearly. just accept your scumbag lifestlye.

[Gladiator]

Originally Posted by swbluto

Yo, I know my own product. And, when my own work is substantial and definitely bears my 'personality', it's protected. But, etsy is a bunch of pansies. Granted, they did let me file a counter claim as per the DMCA, but it's easier to just be more careful (And calculating) in the future. Once an account gets two hits, I'd say it's toast regardless of whatever happens afterwards as the risks are too great. A bird in the hand is worth two in the bush, and I'm looking at more viable longterm expansion strategies.

Well...go pay to copyright it to protect it for damages if it's your design and go get the trademark of the in commerce product name. Shouldn't have any issues after that, right?

[swbluto]

Originally Posted by unkown5454

this thread is hilarious. people ste.aling property like it's their's. have fun. you won't last for sh*t. i dont give a rats a$$ how you want to convolute the situation you have created, you make money off of stea.ling designs, property, trademarks, etc.

no preaching will convince you otherwise, clearly. just accept your scumbag lifestlye.

You're a moron and you obviously don't know my business. You realize this $400 drawing tablet I have doesn't just sit there unused, do you? The issue is the use of particular words in the title, the designs are all my original work. I just need to exercise more care in how I craft my tags and titles and these issues *poof* disappear. I'm assuming the guy filed a copyright on the listing instead of a trademark because, even though he applied for a trademark earlier in the year, he hadn't yet been granted one yet but yet felt like the words were STILL HIS so he threw a tantrum and filed the most fallacious claim ever. Want to know how I know? I searched the USPTO, that's how (P.S. "Nuka Cola" is NOT LISTED.). It's not worth my energy fighting it, however, as I still consider the account a goner and I can always startup new ones.

[Mitsu]

You guys need to stop attacking the guy... calling him a scumbag/talking down to him; you act like he's ripping a image off of google images and printing it onto a backpack/poster or something... from what I gather he's putting his own artistic spin on popular stuff, putting in the work to create something new and original, although inspired, and I've yet to see a clear answer here, or google, that this is wrong or illegal. Can eb/ama/etsy still take it down? of course, they can take down anything-- but is it WRONG? I don't know... I don't think so.

[Gladiator]

Originally Posted by swbluto

You're a moron and you obviously don't know my business. You realize this $400 drawing tablet I have doesn't just sit there unused, do you? The issue is the use of particular words in the title, the designs are all my original work. I just need to exercise more care in how I craft my tags and titles and these issues *poof* disappear. I'm assuming the guy filed a copyright on the listing instead of a trademark because, even though he applied for a trademark earlier in the year, he hadn't yet been granted one yet but yet felt like the words were STILL HIS so he threw a tantrum and filed the most fallacious claim ever. Want to know how I know? I searched the USPTO, that's how (P.S. "Nuka Cola" is NOT LISTED.). It's not worth my energy fighting it, however, as I still consider the account a goner and I can always startup new ones.

Serial Number Reg. Number Word Mark Check Status Live/Dead
1 86250303 NUKA COLA TSDR LIVE
2 86250306 NUKA COLA TSDR LIVE
3 86715319 NUKA COLA TSDR LIVE
4 86250300 NUKA COLA TSDR LIVE
5 79108853 4848364 NUKA COLA TSDR LIVE


Talk to a lawyer.

Of course no one here knows your business. You keep asking about using trademarks to target business of name brands. That's a likelihood of confusion. That violates trademark law and there's tons of cases from federal court about it. You don't seem to understand this, nor the fact that registration for trademarks isn't necessary under the Lanham Act, so instead of asking for help in this manner on the forum you need to go have a consult with a lawyer.

[swbluto]

Originally Posted by Gladiator

Serial Number Reg. Number Word Mark Check Status Live/Dead
1 86250303 NUKA COLA TSDR LIVE
2 86250306 NUKA COLA TSDR LIVE
3 86715319 NUKA COLA TSDR LIVE
4 86250300 NUKA COLA TSDR LIVE
5 79108853 4848364 NUKA COLA TSDR LIVE

Oh, wrong search. I was doing the 'design mark' search.

Looks like 319 is about "Services IC 028. US 022 023 038 050. G & S: metal key chains, headphones; video game accessories, watches and jewelry; collectible bottle caps; collectible statues, posters; artwork; notebooks; calendars; wall decals and stickers; books; comic books, wallets; messenger bags; backpacks; leather key chains; leather portfolios; purses; belts; lunch boxes; cups and mugs; glassware; shot glasses, shower curtains; towels, clothing, namely, shirts, sweatshirts, sweaters, fleece pullovers, jackets and leggings; headwear, namely, hats; footwear, namely, sneakers; socks, bobble-head dolls; plush toys; action figure toys; snowboards; board games; card games; replica weapons; puzzles".

While this is the closest category to the product I was offering, my particular product isn't listed here, so I'm guessing that's why he didn't file this particular trademark number and instead went with claims of copyright violation, even though that would be certainly defensible in court.

And, no need to talk to a lawyer. I'm not selling the product anymore (It's not that important), and it was a simple cease and desist. Just kind of some bull****.

It's a good thing this happened, though, because all of these product categories are giving me ideas for new product lines, lol.

[swbluto]

Now this is odd. All 3 orders since 8 this morning have been "Still processing" in my main account (As of 6 p.m. right now). Considering that's NEVER happened before, I wonder if they're in the process of making a decision to shut down my accounts because of some kind of subpoena that's going through? (And here I was thinking that etsy was the land of "opportunity to learn from your mistakes" / second chances.)

I know I'm a worst case thinker (Despite trying to maintain external optimism in the face of those thoughts in the back of my mind, at least publicly), but, a 10+ hour delay on 3 separate orders being processed seems really peculiar, especially given the timing. The worst processing delay there's been has been 2 hours long, and that was on one order, not every single order since some time at least 10 hours ago.

[swbluto]

If I get a lawsuit, then they're going to have to suck my dick. I have no seizable assets those greedy jewish lawyers can have and that's by design. (Not that I did that because I was expecting a lawsuit, lol, I just wanted to minimize my exposure to the freaking government that seems to be getting greedier and more corrupt every year that passes.)

[swbluto]

Now I'm upto 4 orders just chilling in processing since 8 this morning. (Some biggies, too.)

If I'm forced to restart, I'm going to be forced to hit the ground running with the new accounts I start up. I need to pay for my upcoming luxury cruise somehow, lol.

(Well, one just came through, so I guess today is just an unusually slow day for processing.)

[solefoodbk]

I only read the first post by OP not entire thread but all I can say is ...

Using words like "inspire, like, similar" basically ANYTHING that is relating your product to another is a VERY easy way to get yourself in trouble, ebay/etsy.

Best to not use the word or just at the last words of the title. I use other brands in my listings but I do it smartly. I don't do it on every brand and the ones I do I know my buyers aren't going to cause me issues for having added that brand.

Some people genuinely don't mind it if its truly similar to what they are looking for. In my case they say might be looking for something that generally costs $75-$125 and since I'm selling it for about $40 its a EASY sale, EVERYTIME.

[swbluto]

Originally Posted by solefoodbk

I only read the first post by OP not entire thread but all I can say is ...

Using words like "inspire, like, similar" basically ANYTHING that is relating your product to another is a VERY easy way to get yourself in trouble, ebay/etsy.

Best to not use the word or just at the last words of the title. I use other brands in my listings but I do it smartly. I don't do it on every brand and the ones I do I know my buyers aren't going to cause me issues for having added that brand.

Some people genuinely don't mind it if its truly similar to what they are looking for. In my case they say might be looking for something that generally costs $75-$125 and since I'm selling it for about $40 its a EASY sale, EVERYTIME.

Very sage advise. I noticed on the USPTO site that single words that already exist generally aren't trademarked, which is quite handy if you're trying to link a brand that uses a single dictionary word. Also makes it hard for would be lawyers to find your particular listing, but would be easy for the few buyers who are searching for /exactly/ your kind of product. Brand Identifying phrases that would be buyers rarely use, but lawyers commonly do (Such as "nuka cola"), I'm going to avoid altogether. Also, yeah, I think I'm going to put some words towards the end and use generics at the beginning. In general, I'm going to avoid what now appears to be risky products in the future.

[swbluto]

My orders are taking an exceptionally long time to process (12+ hours, not one has taken less since yesterday). It's clear to me they're getting manually approved by etsy, which is why it's taking so long. I wonder what they're checking for? Are they doing an ongoing risk evaluation on my sales? Are they worried I'm a flight risk or something? lol.

I was thinking I was going to start a new user the day after the event, after things died down, but it's clear that it hasn't really died down just yet on etsy's side, lol. Maybe next week.

Edit: Apparently this is a blue moon event.

From etsy:

According to our records, your shop may have been affected by a recent technical issue experienced by Etsy's third-party payment processor that resulted in delays confirming some of your orders. We expect that impacted orders will soon be confirmed and will be processed and deposited within our stated time frame of three to five days. Please note that your deposit may be credited to your bank account later than usual, though we currently expect it to arrive within this time frame. Exact deposit dates will vary depending on your bank.

On Saturday, February 6, Etsy became aware of our partner’s issue soon after it began. We have been closely monitoring the situation over the past 24 hours. The technical issue our partner is experiencing is affecting multiple companies including Etsy, which has resulted in Etsy having to temporarily delay the email confirmation of orders for your shop. Orders placed using PayPal were unaffected by this issue. We are hopeful that our third-party partner is nearing resolution at which point you will begin seeing order confirmation emails. We sincerely apologize for any inconvenience this issue may have caused.

While an affected order is still being processed, it won't appear on your Orders page. Instead, you'll see a small note that says, "You have processing orders.” As our partner resolves their issue, your processing orders will become confirmed on a rolling basis. Once your order is confirmed, it will appear on your Orders page and buyers will receive an order confirmation. We encourage you to begin fulfilling orders at that time. Buyers will see their order as “Payments Processing” or “Not Paid” on their account.

So, I guess the issue may have blown over already. I'll still give it a week.