Davis claims the competing vendor, MimAndTheAnvil, has a trademark registration for “fairy orbs” that she claims has nothing to do with her $8 to $12 “spell balls” loaded with herbs, charms, and other witchcraft-themed detritus.
“I find this annoying not simply from the standpoint of one small business vs. another,” Davis told The Washington Post. “This happened during the holiday season, which means my product has less time to sell just before USPS Christmas shipping cutoff date.”
Elyza Davis battled to have her Etsy ornament sales reinstated.
Davis’s ornaments were removed from Etsy on November 9, and she wasn’t able to put them up for sale until November 24. In an e-mail to The Post, the seller who filed the complaint against Davis declined to comment, citing “upcoming legal processes.”
According to the company’s website, “take-down notifications” for sellers of handmade toys, apparel, and furniture increased by 60% in 2020, the most recent statistics available, to more than 54,000. Takedowns surge around Thanksgiving and Christmas, and “it often rivals attempting to slow down someone else,” says Brent Sausser, a partner at legal firm Sausser Summers PC, which defends sellers in such conflicts.
Etsy, for its part, appears to be carefully adhering to the Digital Millennium Copyright Act, or DMCA – which can result in the removal of merchants’ merchandise based on a single, baseless complaint. The issue, according to Sausser, is that Etsy is depending on the “honor system,” taking the “word of the person who brings the infringement allegation.” According to Sausser, sites like Etsy undertake little to no vetting of complaints, yet they are quick to remove targeted listings.
When contacted by The Washington Post for a response, Etsy stated that “abusive notices or another misuse” of the rules could result in a seller’s removal from the site. It declined to provide any additional information.
There have been numerous reports of bad policing. An owl keychain advertised by one seller was deleted after a complaint claimed it violated a “Harry Potter” copyright.
“It is an owl keychain — and there is an owl in Harry Potter — but that’s where the similarities end,” the merchant explained. “I checked my listings/tags, and there’s no reference of Harry Potter anywhere.”
According to reports, the owl complaint was made by a representative of “Harry Potter” distributor WarnerMedia. However, another seller who had also been alerted claimed on Reddit that representatives for the entertainment conglomerate told them they hadn’t filed the Etsy complaints. WarnerMedia representatives could not be reached for comment.
Meanwhile, sellers who have been targeted by the false allegations say they have tried in vain to receive assistance from Etsy.
“They basically have zero seller support,” stated one Reddit user, who was also blocked by the bogus Warner account. “They don’t have a chat feature, a phone number, and they never answer the ‘e-mail’ feature.”
Aside from a signed verification of the claim’s truthfulness, filing a copyright-infringement claim on Etsy requires no proof. The complainant completes a three-page form that includes links to the infringing merchandise. Counterclaims can be filed by targeted vendors, and if the other seller does not respond with a lawsuit within 10 days, the items can be reinstalled.
However, according to letters obtained by The Post from Etsy, Etsy can withhold revenue from the targeted seller’s transactions for up to 90 days if it believes the seller is a “risk.”
Mona Weiss, another Etsy merchant who received a legal notice just before Black Friday, stated, “The infringement process is really one-sided.” Weiss received a complaint saying that she was violating on copyright for adorned animal skulls, despite the fact that at least a dozen other vendors on Etsy are selling comparable things.
Even more irritating, she added, was the absence of a copyright citation in the complaint. Weiss, who owns Laughing Skull Studio in Ohio, said she looked through the federal copyright database and found nothing.
“Anyone may make an allegation,” stated Weiss. “I feel the seller intended to take me out of the running for Black Friday.”
It isn’t only Etsy. Former Amazon executive Chris McCabe, now an e-commerce consultant, claimed the take-down requests are a “regular practice” on the Seattle-based e-commerce giant’s site and are sometimes issued from bogus e-mail accounts.
One of McCabe’s clients who sell on Amazon lost more than $1 million in sales as a result of a phony copyright complaint, and another seller was targeted 14 times, he added.
“These complaints are typically about competitor abuse,” McCabe told The Washington Post. “What matters are the claims, and Amazon is frightened of being accused of failing to safeguard trademark rights.”
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