Dear Etsy. It's nothing personal, it's just business ...
Here's the deal. Etsy is great. Everyone loves Etsy. Artists love Etsy. Engaged couples love Etsy. My mom loves Etsy. Your mom probably loves Etsy.
And I'm not gonna lie. I kinda love Etsy, too. I really enjoy the ability to shop on Etsy. As a husband, a son, an uncle, a friend, a pet owner . . . and someone with lots of blank wall space . . . Etsy's got a lot of cool stuff!
But as a lawyer who works with creative business owners, I've got some major beef with Etsy.
Etsy is a playground with its own class of bullies.
About a month ago, I started a Facebook group called Friends of Indie Law for creative entrepreneurs to ask legal questions and start discussions around the legal pain points in their businesses. I don't give legal advice in the group, but I do tell the group what the law is and build discussions around common topics. (The group has grown quite a bit in just a few weeks, and I'm loving the sense of community that the members are building. Click here if you'd like to join!).
Lots of the members in that Facebook group—and many of my clients—are handmade sellers who have their own Etsy stores.
If I've learned one thing from talking with all of these handmade sellers, it's this—they are sick and tired of dealing with bullies on Etsy.
Here's what I mean: there are Etsy bullies out there misusing trademark and copyright laws to undercut the competition. Time for a quick law lesson.
If you're a creative—whether a handmade artist or not—your creativity is your greatest asset. Legally speaking, that means you should care a lot about your "intellectual property," or the legal rights relating to your creations.
The main two areas of intellectual property law are trademarks and copyrights.
You have trademark protections for branding purposes (like your business name, logo, slogan, and product line names). The point of our trademark laws is to prevent customer confusion in the marketplace. Think about it: if there weren't trademark laws in place to prevent another computer company from using the name Apple, people would be really confused!
You have copyright protections for non-branding things that you've created as a form of artistic expression (like a design you put on a shirt song lyrics, photographs, or even the language on your website). The point of copyright laws is to prevent other people from stealing and profiting from your work that you put a lot of thought and time into. Whether it's a blog post or a photograph, you've created something that is unique, and people shouldn't be allowed to benefit from plagiarism.
Following so far? Good.
So, trademarks and copyrights are great, and they serve specific purposes. But here's the thing. NEITHER of them exist to protect clever sayings or common phrases. NEITHER of them should be used as a way of saying, "Hey, I'm digging this cool phrase. I don't want it to be a business name or slogan or anything—I just want to put it on one or two of my items. I'll claim ownership of it so that no one else can use it! Let's trademark it!"
That's not how it works. That's not how any of this works.
But that's exactly what some Etsy bullies are doing. And handmade sellers are suffering because of it.
Etsy's policies allow for this kind of bullying to happen.
Etsy has its own policy for handling disputes over intellectual property infringement. I wrote about it here. The gist of it is that Etsy is following a set of laws—that other online platforms follow as well—that allows them to play a neutral third party without having to police these accusations or get sucked into a possible lawsuit. Etsy communicates the infringement notice to the accused infringer, who can respond with a counter-notice saying there's no infringement. Once that happens, Etsy says, "Okay, I've done everything I can do here without getting involved. If you two want to continue fighting, then take it to court."
But there's more. If your store gets accused of infringement enough times (there's no set number here), then Etsy might shut down your entire store. The thinking here is: if enough people are complaining about you, then you must be doing something wrong.
Sounds fair enough.
Until bullies start sending false copyright infringement notices and using "trademark trolling" to shut down any stores selling items with that word or phrase on it.
And here's why this sucks. As a creative, you should always ask, "Will this item or idea violate someone else's intellectual property rights?" You never want to infringe on someone else's rights. (And if the rights holder has a lot of money, you definitely want to shy away from that. Translation: don't put Disney characters on your stuff!)
But you should never have to feel like your online store is at risk of being shut down if you're obeying the law.
Etsy sellers, you have a few options here.
Believe me, this whole thing is super frustrating for handmade sellers. Here are some of your options if you get accused by one of these bullies on Etsy:
- You can remove the item, play extra cautious, and hope it doesn't happen again OR
- You can reach out to the bully and ask for a "license" to continue using it (but you'd be feeding the fire by suggesting they do in fact have these ownership rights) OR
- You can file a counter-notice saying you're not in violation and hope they don't take further action OR
- You can go after them in court and sue them for abusing the copyright and trademark law. You could find other victims to join you as a plaintiff. This is expensive. (Indie Law does not handle litigation matters like this, but we can refer you to an attorney who does.) OR
- You can get off Etsy.
Wait. That last option came out of left field, didn't it?
Yes, you can get off Etsy. Actually, I think it's your best option. Here's why.
Why you should get off Etsy (or any other platform, for that matter)
Look, there are obviously huge benefits to using Etsy. It's like having a miniature Google where your customers can find you. The platform makes it so easy to sell your item online. You already have a "warm" audience of shoppers surfing around looking for stuff to buy.
For the record, I'm not saying it's easy to have a successful business on Etsy. You don't just flip a switch and start making money. It takes some serious time and effort (and a bit of luck!) to improve your SEO, master tags and descriptions, build positive reviews, and get a steady stream of views and orders. So yeah, there's legwork involved in building a profitable Etsy store.
Still, Etsy makes it simpler for handmade sellers to make money. That's why so many sellers rely on it. But are those benefits worth the risks of relying on it? In my opinion, heck no!
Let me take off my "lawyer hat" for a minute. Besides the "bullying" issue we discussed earlier, there are very important reasons why your business shouldn't exist on Etsy or any other platform.
- You don't want your entire business to depend on another business. It's not likely, but Etsy could decide tomorrow that it's going to close its doors. On a less extreme level, Etsy can and often does change its algorithms. This makes it very hard to confidently predict future sales. And you need to be able to do that to conduct your business in the long-term.
- Etsy highlights the competition. If people found your item on Etsy, they probably found similar items while shopping. This puts your business at a disadvantage right off the bat because your customers are already in "comparison mode."
- Etsy puts training wheels on an essential piece of running the business. I've said this before. If you're selling stuff on Etsy as more of a side hobby, that's totally cool. But if you're treating your online store like a legit business, you need to have the mindset of a business owner. Part of being a business owner is knowing how to sell your products. And selling your products means reaching out directly to potential customers and driving them to your stuff—not relying on people who are shopping on Etsy and hoping they stumble upon your stuff.
Okay, let's step back and make sure you understand where I'm coming from.
I am NOT saying you should immediately get off Etsy and start from scratch with a new website. I know, building a site and and then building traffic to it takes time. It can't be done overnight.
But I challenge you to think hard about this, be honest with yourself about where you stand on the "hobby vs business" question, and start the process of building your own website.
Don't let the bullies get you down.
I know, this is all easier said than done. But you've got this. There are lots of creatives in the middle of this transition from Etsy to their own websites. Many of them are in the Friends of Indie Law Facebook Group, and it's been awesome to see them support each other. With your own site, you make it a lot harder for these bullies to find you. And since you own the site, you don't have to worry about a platform shutting down your store when you're not doing anything wrong.
Sorry, Etsy. It's been a fun run. But I've got to put me first. We're breaking up.
Who's with me?