Q: I’m an Etsy seller and someone claimed IP on an item. But all they have is an application for said item. Not approved.

A: Normally, online marketplaces like Amazon and Etsy require merchants selling items on their platforms to prove they own or have a license to use IP when a complaint is made. People and companies legitimately selling products in online marketplaces can usually provide proof of ownership or licensing fairly quickly upon request.

A: If someone has filed an IP claim against your Etsy listing based on a pending application, they do not yet have an enforceable right. While it is common for platforms like Etsy to take precautionary measures, this does not mean the claim is automatically valid.

You can respond to the claim by providing Etsy with evidence that the IP rights in question are not yet granted. Include any information that supports your position, such as documentation showing that the IP application is still under review.

Additionally, you might consider reaching out to the claimant directly to resolve the issue amicably. If they do not have an approved IP, they might be willing to withdraw their complaint. If the situation escalates, you may want to seek advice on your legal standing and possible next steps.

A: Based on the information provided, here's an analysis of your situation:

Trademark Application Status:

Having only an application for a trademark, without approval, does not grant full trademark rights. The applicant does not have enforceable trademark rights until the mark is registered.

Etsy's Policy:

Etsy's Intellectual Property Policy generally requires that reports of infringement come from rights holders. However, Etsy may act on reports even if a trademark is not yet registered, especially if there's a pending application.

Potential Misrepresentation:

If the person claiming IP rights misrepresented their status (e.g., claiming to have a registered trademark when they only have an application), this could be considered improper.

Your Options:

a. Counter Notice: You can file a counter notice with Etsy, explaining that the trademark is not yet registered and that the claimant does not have enforceable rights.

b. Contact Etsy Support: Reach out to Etsy support to explain the situation, providing evidence that the trademark is only applied for, not registered.

c. Legal Consultation: Consider consulting with an intellectual property attorney for specific advice on your situation.

d. Wait for Registration Decision: If the trademark application is still pending, you could potentially resume selling if the application is rejected.

Caution:

Even if the trademark is not yet registered, if it's eventually approved, the applicant could potentially claim rights dating back to the filing date. Be cautious about continuing to use the mark if you believe it may be approved in the future.

Etsy's Position:

Etsy generally errs on the side of caution with IP claims to maintain their safe harbor status under the DMCA. They may remove listings based on pending applications to avoid potential liability.

In conclusion, while it's not illegal for someone to report a potential infringement based on a pending application, it's also not a fully enforceable right. Your best course of action is to communicate with Etsy, provide clear information about the status of the trademark application, and consider seeking legal advice if the issue persists or significantly impacts your business.