The popularity of easy-to-use craft selling platforms such as Etsy and Folksy means the number of kitchen table businesses continues to grow. Unfortunately, many of these new small businesses are typically run by solo crafters don’t have a great deal of intellectual property knowhow. According to recent figures released by Etsy, the firm responded to 6,997 “properly submitted” takedown notices in 2014 by removing or disabling access to 176,137 listings from a total of 42,526 sellers. While this only represents about 0.5 per cent of all listings, it’s interesting to note that 3,993 shops were closed for repeated violations of the firm’s intellectual property policy.
Etsy and IP breaches
Etsy outlines its rules about breaching intellectual property very clearly here. So on the one hand; you could be forgiven for wondering why violations are still taking place. In part it seems the size of the selling platform is to blame. Sellers may not initially be aware that they are committing some sort of breach and even when they receive a complaint they conduct a search on the site and see that similar items are still on sale. This can lead to a lack of action on their part. However, what’s generally happening is that Etsy just haven’t gotten around to addressing those other breaches yet, potentially because they haven’t yet been reported. They state:
With intellectual property (IP) violations, we take action when we receive a proper notice from the rights holder. Each IP owner can decide when and how to enforce its intellectual property rights. We do not take a role in resolving intellectual property disputes, and we do not take sides.”
What types of breaches are occurring?
While there are instances of Etsy sellers complaining that other sellers are breaching their IP by copying or even re-selling their designs, many goods infringe on trademarks and copyright of singers, artists and photographers too. This Buzzfeed article explores the number of Etsy items featuring Taylor Swift lyrics that have ‘swiftly’ disappeared from the site. Taylor Swift’s lawyers are well known for protecting her IP and she’s made some savvy IP choices. Ms Swift doesn’t just rely on the copyright protection of her lyrics but has trademarked phrases such as “sick beat” which are likely to be popular for merchandise use.
Sellers aren’t always clued up about use of images either – many sellers misinterpret or flout rules about image copyright. Even fan arts and crafts are emerging as tricky territory for sellers. Fans of the Firefly TV series were selling knitted version of the “Jayne hat” online for years, then in 2012 a licensed version of the hat was put on sale and after this the makers of the show – Fox Group, began clamping down on the kitchen table sellers operating on sites such as Etsy. You can read more about that here. Then there are the instances of sellers using what they thought were everyday phrases in the public domain on t-shirts or art prints, which have actually turned out to be trademarked. It really does pay to do your research if you plan to sell on these types of sites.
How to avoid IP infringement as a craft seller
David Warrilow is one of London IP’s IP patent and trademark attorneys and a regular contributor to Craftseller magazine, in which he advises on intellectual property. David comments: ‘The same sorts of issues with crafters come up again and again, and most disputes could be avoided if crafters new more about the different types of intellectual property and what to watch out for. Although small-scale infringements might be less likely to be spotted by rights-owners they are no less illegal. IP disputes are always stressful and sometimes costly, so they are best avoided if possible.’
As a small seller it can be tempting to think that you’re not going to make a dent on the earnings of a big business by breaching their IP. You might even risk closure of your Etsy shop assuming you can sell elsewhere. In many ways lack of education is to blame for these assumptions. If you want to sell online (or elsewhere) it’s your responsibility to adhere to IP rights. You can learn more about the rules you need to consider in this guide from the WIPO here. Learning the basics won’t only give you a better chance of success by ensuring you don’t commit any breaches – it will help you consider how best to protect your own IP too.
Are you a small business or craft seller who wants to protect their IP and grow their business? Contact our team of experts who will be happy to help.