Etsy – Take Down Challenges

Infringement of your intellectual property rights is now becoming much more achievable online as a result of technological developments and the evolution of social media platforms over the past decade. Social media platforms such as Facebook (now known as Meta), Instagram & Twitter offer a quick and easy take down form which allows you to request the removal of infringing content from the platform. This efficient process is generally trouble free however in some circumstances take down notices come with challenges, as explained further below, specifically in relation to Etsy.

Many of you will be aware of Etsy as an online marketplace. As of 2020, Etsy had over 4.4 million sellers worldwide and the opportunity for infringers to copy original work and sell it via the online marketplace has never been greater. Etsy does have an intellectual property policy which governs its use; however, this policy is drafted under U.S law and the issuance of take down notices relates to the Digital Millennium Content Act. This is not particularly user friendly, especially for users in the United Kingdom. You need to be aware that if you come across an Etsy user who is selling infringing content, you can issue a take down notice through Etsy’s online form. This can be located here. On receipt of your take down notice, the infringer can issue what is called a counter notice in response to your valid take down notice, on the basis that the infringer believes that it has received the take down notice by mistake or as a result of misidentification. Albeit it is not uncommon for infringers to issue a counter notice irrespective of this, especially when you are based in the UK. This is because, if, within a period of 10 business days from the date of receipt of the counter notice, you have not shown proof to Etsy that you are seeking an order from the court requesting the take down of this infringing content, the infringing content will be reactivated and relisted, even if you have a valid take down notice.

In the UK, we have rules and regulations which govern pre-action correspondence. We are under an obligation to enter pre-action correspondence with a party prior to the issuing any claim and to try and settle the matter before proceedings are issued. This acts entirely contrary to the time constraints placed by Etsy and the 10 business days offered to show proof of an order sought from the court. As issuing proceedings within the 10 business days is not appropriate, and as the infringing work(s) would then be relisted, the other option available to you would be to make what is called an application for an interim injunction. These applications can be extremely expensive and may not be something that would be proportionate in view of the likely damages. In these circumstances it would always be a good idea to be diligent and contact any infringer personally so as to try and settle any possible infringement prior to issuing a take down notice on Etsy, and ultimately going round if circles if you do not seek an order from the court.

If you need any help with your Etsy take down notice, feel free to contact one of our expert solicitors on info@briffa.com.

Written by Tom Staveley – Solicitor