- September 22, 2023
- Posted by: legaleseblogger
- Category: Related News
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Facing a Threat: An Etsy Seller’s Dilemma
Two years ago, I embarked on a full-time endeavor of creating custom wooden dice boxes for Dungeons & Dragons players, among other handmade items, on Etsy. These dice boxes have become a significant part of my revenue, constituting roughly 75% of my income. However, one year ago, my journey hit a snag when I received a threatening message from a larger dice box company (not wyrm), claiming that I was infringing upon their patented design and intellectual property.
It’s true that our dice boxes share some similarities; both feature hexagonal shapes, which, in the RPG industry, is not uncommon. Nevertheless, there are also significant differences between our products. Their boxes are assembled using bamboo screws and offer features like mobile device support and pencil holders, whereas mine are crafted from solid wood, unstained, and designed to include additional space for dice. In essence, they offer a budget option, while I provide a premium alternative.
Refusing to back down, I requested that they provide their patent ID as evidence, but to no avail. Consequently, they pursued an aggressive approach and had Etsy remove my listings. Thankfully, Etsy reviewed the copyright strike and ultimately reinstated my listings, ensuring a period of smooth sailing ever since. However, just as the Christmas season approachesÔÇöthe busiest time for my businessÔÇöI find myself in a disheartening and familiar situation.
Almost exactly one year later, I receive a cease and desist message on Etsy from the same company, seemingly oblivious to our previous interactions. They demand that I remove my listings within 14 days, under the threat of facing legal action for “intellectual property violations.” Curiously, when I conducted a search on TESS (Trademark Electronic Search System), I discovered that while they do hold a wordmark for their business, that’s the extent of their registered intellectual property.
As a sole proprietor operating out of my garage, I am at a loss as to how to proceed. This business is my livelihood, while they are a larger corporation with ample resources, including a legal team. It is evident that they would easily overpower me if this matter were to escalate to court. Financially constrained, I cannot afford the services of a lawyer whatsoever. I can’t help but feel that they are resorting to these tactics solely to intimidate and eliminate competition before the lucrative Christmas season arrives.
In this perplexing predicament, any advice or guidance would be truly appreciated. I am determined to persevere, but I tread cautiously, resisting the temptation to respond with anything other than a measured and strategic approach. This is my passion, and I refuse to let it crumble under the pressure. Could an AI Legalese Decoder potentially assist me in deciphering the intricacies of this situation, providing clarity and potentially guiding me towards a favorable resolution? Expert insights and support would be invaluable as I navigate through this adversity, ensuring that I can continue sharing my craftsmanship with fervent Dungeons & Dragons enthusiasts.
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****** just grabbed a
NAL. I would wait until you are served and then get a lawyer. Anybody can send a cease and desist letter.
If they actually had a patent they would be happy to share it with you. It’s unlikely a dice rolling box is patentable though (it’s not novel). They may continue to try and make hay with you on Etsy but it’s really unlikely you’d actually be sued.
If you are sued you’ll need to hire a lawyer. Until then they’re just trying to bully you.
Lots of misinformation/wrong information here. Props to the patent examiner who is commenting below. As far as I am aware these are the differences you need to understand to decide whether this company has a case against you.
Trademark:
1. A person may trademark a company name such as “Wooden Dice Box Inc” or a product name such as “The Oaken Crate of Dicethrax” if they want to get specific about their products. If they applied for and been approved to have those trademarks, they own that collection of words that they can use for branding and to sell their products.
*If your company name is similar such as “Wooden Dice Boxes Co” you could be considered infringing on their trademark name, but *not* patents or copyrights. Names must be novel so in the real world you probably could not trademark “Wooden Dice box inc” as its too generic, but that is up to the trademark office to decide.
*Trademarks are also geographically significant. If you are running “Bob’s lawn cutting” in California and “Bob’s lawn cutting” in Florida, the odds of cross over are basically impossible so both trademarks can exist. Of course this has changed with the web as most companies now consider themselves to do business nationally/internationally even if they do not.
Patents:
2. A person may patent the *functions* of an item, so the opening/closing/modulation mechanisms of a wooden dice box, if those functions are novel (such as a new unique hinge or lock). Patents must be filed before a product is released to the public or else those functions are considered part of the public domain. It is basically impossible to retroactively file a patent for function.
Copyright:
3. A general copyright is established at the moment a creative idea is solidified in a fixed medium. So the recording of a song, the drawing a picture or the writing down of some prose. An idea is not a copywriteable thing. So “I have an idea for a space opera involving laser sword wielding wizards” is not copyrightable. Once an idea is solidified into a stable form an official copyright can be filed which protect your IP and can award you statutory damages should someone infringe on said IP.
In your case: A person may copyright the artwork on a wooden dice box (so say they draw a unique dragon on the box) but only that artwork on the box and not the box itself. They have copyright over that particular unique dragon drawing, but not all dragon drawings, and certainly not all dragon drawings on all wooden dice boxes.
* A company could potentially file a copyright on the shape of said wooden Dice box (hexagonal) with a particular piece of artwork (dragon), but it is very murky.
*Generally you cannot copyright any aspect of an item that has functional aspects such as the blade of a shovel, the shape of a hammer handle, etc. You could however copyright the design of vine artwork up a shovel handle.
Conclusion:
This company is most likely just trying to scare you. They should be able to provide you with an official document of their trademarked name/product branding, a patent # or an official copyright declaration to prove their claims. If they can’t, the odds they will win in court is basically zero.
Without these things it will be very very hard to pursue any legal action against you, unless you are directly copying such aspects of their products as described above. If you are both making hexagonal boxes with artwork and that is their only claim, well tough shit for them as its an open market.
Cheers.
Anyone can write a cease and desist letter, it has no merit.
The same way anyone can make a lawsuit. But just because you sue someone, doesnÔÇÖt mean youÔÇÖll win.
They donÔÇÖt have a patent. A dice rolling box isnÔÇÖt patentable given your description.
They most definitely donÔÇÖt have a patent or any claims to the design. They are trying to scare away competition and probably lost track of who they harassed last year. Report them to Etsy. Save all messages. But, report. Report. Report. In 14 days, they will go to Etsy and say that you have stolen their listings and are copying them. Etsy will then remove your listings until you have a chance to go through the appeal process. Their hope is that youÔÇÖll give up and leave Etsy. DonÔÇÖt give them the satisfaction.
Search on the company’s name as the assignee at
https://ppubs.uspto.gov/pubwebapp/static/pages/landing.html
NAL. They have no grounds for a lawsuit. If they had a design patent, they wouldÔÇÖve easily and gladly shared the patent number with you. No patent, no protection. ItÔÇÖs as simple as that. DonÔÇÖt let them scare you from making and selling whatever it is youÔÇÖre making and selling.
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