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| The Offending Soaps! |
Although there is no written statement anywhere, for as long as I can remember, it has been acceptable practice in many places that when you make a similar item or duplication, that you either rename it entirely or use the term "like" or "type" following it. I'm sure you've seen it on eBay and yes, even on Etsy. For instance, a fragrance oil company makes a cloned version of a popular scent like Burberry Brit. They will list the item and use the term "Burberry Brit-like" or even "Burberry Brit-type". It shouldn't even have to be explained but this is so the consumer knows that they are buying a knock-off brand and NOT official Burberry merchandise. Following this train of thought, I renamed my Etsy listings to say "Peep-like" and yet, again, they were removed. Flipping trolls.
By this point, I was absolutely irate. The trademark troll representative would not answer my direct email(s) back and Etsy's Legal department, of course, can't help you at all with anything at all, not even on HOW to make your listing compliant to the complaint. I fired off a rather heated written letter to Just Born, Inc's telling them how peeved off I was that they spent thousands of dollars on this trademark company to stop the sale of a $5 bar of soap. Soap. Not candy. And that is the heart of my bitch. I make soap. They make candy. I can see if I was using their mold to make actual candy, calling them Peeps and then selling them on Etsy. But it is soap and as far as I know, they don't produce soap. So how was my little $5 listing hurting them or cutting into their market to justify hiring this stupid company to troll Etsy of all things? (they never even contacted me about my direct webstore nor my Pinterest pins that all said Peep in them too - just my Etsy stuff) It was absolutely ridiculous and baffling in my mind. My letter was really heartfelt and explained to them that nobody on Etsy is a millionaire, nor will they even likely be. We're hand-crafters and artisans with a passion for making things. We're not out to take over the candy market and destroy their company. Soap, people. It's just a bar of soap. As of this writing, I *still* have yet to hear back from the troll company representative or anyone from Just Born, Inc. which just makes me think that in the end, it really is just about the almighty dollar you MIGHT be ripping from their greedy corporate hands.
And Etsy? They could probably institute a No Help At All Department that employs a monkey sitting at a desk, randomly pushing buttons to shoot out form letters to those who break the DMCA. I think it is very pissy of them to have a legal department that won't even tell you HOW to become compliant with the DMCA or even what the complaint officially contained. How do you fix what you don't know it wrong? I think I found the problem regarding Etsy through a Google search on their legal department. They don't even require you to have legal experience, though, thankfully, it is preferred. No wonder they can't tell you what to do since they probably just don't know. Can't blame the employee but you can certainly blame the company for not hiring adequately schooled and trained people to deal with these types of situations. But no, sellers are left to fend for themselves by asking in forums, random desperate DMCA Google searches or by breaking down and spending their hard earned money on an attorney. It really is just irresponsible of them to give you this great big vehicle to selling stuff on but yet, not tell you how to operate within it properly. They'll certainly penalize you though - and yes, they do close down shops for repeatedly breaking the DMCA. Taking a stroll through Google, I've found many, many, MANY of these same situations and I honestly have to wonder why nobody has filed a class action lawsuit yet against them for shutting down shops unwarranted. Even in my situation with the Peeps, when I had my listings taken down, there were 43 OTHER Peep soaps listed and actively going.
Awhile back, I was contact by another seller that alerted me to a man in England who had stolen two of my Batman soap pictures and he used them (and hers, too) in his listing. I contacted him directly and asked him nicely to remove the photos. Of course, no reply ever came nor did he remove the images. I complained to Etsy that my copyrighted material was stolen but only received a complimentary "we're sorry but you can file a complaint using blah...blah...blah....blah...." form letter from some anonymous person who works in their legal department. So what's a seller to do? Hire an expensive attorney? That's basically what Etsy wants you to do because frankly, they don't want to deal with you and in most cases, like I said before, they CAN'T because they're not actually attorneys armed with any legal information to give you. Your other option is to scour around the web trying to find a blank DMCA notice of infringement complaint form to copy and paste. (which is what I ended up doing) Will it work? I'm still waiting for an answer from Etsy but as of this writing, that listing is still active.
I really, honestly feel like unless you have the power of an attorney behind you, Etsy just ignores you completely. Sure, they'll take your money in fees but they certainly don't offer the seller any indication that they care about your experience on their site. They could easily make a blank DMCA form (like Wordpress has) to report stolen images, etc. but the have yet to do so. They could also give you proper guidance on how to be compliant when a complaint is lodged against you. When I was notified, I had to do a web search to find out who exactly Just Born, Inc was and by then, I put two and two together. Etsy didn't tell me I violated by using the word "Peep". In fact, Etsy didn't tell me jack crap but since I used my own images, I knew that my wording had to be the case. Another lady had her listing removed because her generic (non-branded) tractor .gif was a green tractor with yellow wheels. She picked those colors because they were complimentary but yet John Deere filed a complaint against her because they hold copyright on green tractors with yellow wheels. Are you kidding me? It wasn't even branded with their logo! Should we put out warnings to our children not to draw green tractors with yellow wheels now for fear of John Deere coming after them? Ridiculous.
I just think this whole DMCA thing is kinda vague and leaves too much open to interpretation and that is causing the issue(s) at hand. Even filing my own against the man in England, I realized how generalized this form was. For Etsy, all you need to file is the offender's listing # and the listing URL, then provide your own URL showing where the item is copyrighted at along with your contact info and a brief statement about perjury and this is yours, etc. There is no requirement to say what part of his listing infringed upon me. They likely won't tell him either but just remove it. I think that is wrong. He should be told he stole my picture. Moreso, I think your complaint should be valid. He used my picture, so that's kinda clear cut. The lady with the tractor? I would have scoffed at John Deere because that is just ridiculous. So nobody anywhere can do green tractors with yellow wheels because they do? Can I not buy a tractor and repaint it those colors? It certainly makes me want to for spite. And the Peeps company complaint against me? Really? Don't sell the stupid mold that looks IDENTICAL to your product then if you don't want people making things from it. If I had the gumption and I wasn't saving my money to buy a house soon, I really WOULD hire an attorney and fight that because it is absolutely ridiculous in nature.
I suppose I should hop off my soap box now but I really wanted to address this issue as it is becoming more and more prevalent. It just shouldn't be this hard for sellers. I dream to see big companies like Etsy and eBay spearhead a movement for change in the DMCA for the benefit of their sellers and be vigilant to protect them and support them but I don't see that happening anytime soon. They're just happy to take your monthly fees and send you Google searching your way around these issues. In any event, this has left a very sour taste in my mouth for Etsy, not to mention I've all but forbidden Peeps candy in my household ever again.
**** UPDATE ****
I heard from Etsy no less than 24 hours later after serving my DMCA notification and the seller from England who ripped off my photos had that listing removed. I'm going to keep a vigilant watch on his listings though to see if he retries it.
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