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Alex Reese
Alex Reese, Lawyer
Category: Intellectual Property Law
Satisfied Customers: 3219
Experience:  Experienced in intellectual property law
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I was notified by Etsy that they removed some of my items per

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I was notified by Etsy that they removed some of my items per request of an entertainment company. I was not provided with information as to what specifically about my listings was in violation. I requested this information from both Etsy and the other party and was not provided with it. I looked on the US Trademark Office website to see if the words or phrases ie. "Fanpire" on my items were owned by the party claiming to own them and the words or phrases were not as far as I could see owned by them at all. The items were described as being "inspired by (name of film)"  and listed as "xxxxxxxx inspired". Are they not supposed to provide me with the information as to what exactly about my listings was in violation? It doesn't seem fair they can just remove them without telling me the specific reason. Merely telling me that they were in violation does not seem adequate. As I stated before I looked these words or phrases up on the US Trademark Office website and they  did not appear at all. I was told by Etsy that the notice they recieved contained information regarding several sellers so they could not forward me a copy due to confidentiality reasons. Does listing the items and describing them as "inspired by xxxxxxxx) violate the Trademark rights of the party that requested their removal?
Submitted: 5 years ago.
Category: Intellectual Property Law
Expert:  Alex Reese replied 5 years ago.
It's hard to say definitively whether your use falls under permissible fair use or is TM infringement, but generally it is ok to reference a trademark to the extent necessary to describe your goods/services (called nominative fair use) but otherwise you need permission to use another's trademark. If you are using the mark to merely describe your goods (e.g. "works with Oral-B toothbrushes" or "10% stronger than Glad bags" then it can be permissible fair use) but if you are deemed to be using the trademark directly to promot your goods and attract attention then its TM infringement.....but many situations are hard to call)

With respect to Etsy, they essentially have their own terms of service and fighting with them won't do you much good, your rights are limited to their Terms of Use, and you probably don't have an affirmative right to get certain info from them or use their service, and they can ultimately pull your item for any reason if they wanted other words they can do things that may seem unfair but there's nothing you can do about it practically.

for more info on TM and fair use see the links at:
Customer: replied 5 years ago.
So if I understand correctly it can be ok to advertise the item as being "great for any fan of xxxxx the movie"? But not to just add the Trademarked name in the listing title to draw more viewers to the listing?
Expert:  Alex Reese replied 5 years ago.
Essentially yes, you can use the TM only to the extent necessary to describe your product, be sure to see the section on TM Fair Use in the link I provided. You can use it in a descriptive/informative context but not in the TM context. Of course, you shouldn't use TM logos etc. unless necessary as well.
Customer: replied 5 years ago.
There were no logos on my items and the word  is trademarked but not by this company and not for jewelry items as far as I could see on the US Trademark Office site and my item was jewelry.
Expert:  Alex Reese replied 5 years ago.
Well I don't see the TM infringement here, for several reasons, so you can plead your case to the website, but that's about all you can do practically speaking, further action against the site would not be worth the time & money to pursue. best of luck
Alex Reese, Lawyer
Satisfied Customers: 3219
Experience: Experienced in intellectual property law
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