Any lawyers, caveman or otherwise?

[datachicane]

Thought I'd ask the OC braintrust, just in case anyone had any similar experiences, insights, or totally unqualified advice.

OK, starting about three years ago my 3d printer habit unexpectedly morphed into a reasonably lucrative side gig, enough so that it's paying for the daughter's college and allowed my wife to quit her job and work as my packing/shipping department. I am as shocked by all of this as anyone reasonably could be. I'm selling a thing of my own unique design, which is inherently un-copyrightable, and I'm selling lots of them, primarily on Etsy. All groovy, right?

This thing I sell a lot of is an accessory for a number of board games made by multiple publishers, but one very popular board game represents most of my customers' applications. I heard through the grapevine quite some time ago that this particular game publisher had recently contracted with a third-party intellectual property enforcement outfit, and conflict-avoiding guy that I am, I reviewed all of that publisher's trademarks and made absolutely certain I didn't infringe on any of them. No playing games like deliberate misspellings, etc., I'm all squeaky clean, search tags and all. All is groovy, right?

Yeah. The policy of Etsy, Shopify, eBay, and pretty much any other eCommerce site that you can name is to immediately take down an offending listing whenever they receive an IP infringement complaint, which is fair enough. Unfortunately, they don't actually bother to verify that the complaint is valid, even if it's something as simple to test as a trademarked term. I got hit with multiple complaints from this same IP bulldog about my use of their client's trademarked word "X", even though that word (or variation of that word, or misspelling of that word, or puns alluding to that word, anagrams, you name it) appears nowhere in my listings or search tags. Each time I'm out of business for weeks while Etsy (or Shopify, or whoever) reviews the case, which may or may not actually happen, only to be immediately hit again with the same (still bogus) infringement notice. Repeated takedown requests, whether valid or not, or grounds for the hosting service to terminate their relationship with me altogether.

The DMCA has language for copyright infringement notices that sets about a counterclaim process in instances where the initial complaint is invalid or refuted, with nasty penalties applicable for offenders, since submitting a knowingly inaccurate complaint is considered perjury. However, that same language didn't make it in to the trademark portion of the DMCA, so there's no penalty or process at all for outfits that abuse trademark infringement notices- you can happily spam anyone into oblivion without consequences.

Needless to say, I'm not happy. It's cost me a fairly significant amount of money in lost revenue. I would think that some eCommerce host somewhere would have a financial incentive to vet something as simple to test as a trademarked word infringement notice, but apparently they can't be bothered when there's a zillion Aliexpress dropshippers waiting in the wings. The IP bulldog is based in Spain, so I can't imagine what trying to seek some sort of legal solution would end up costing me. Pretty screwed up.

[TravelGal]

I know a top notch business attorney. I'll pass this by her. You've described international harassment, basically spam, with no automatic relief. As you already know, this could be a bear to remedy. Have you searched to see if other businesses are having the same problem? Preferably from the same source? Could strength in numbers stop it? Grasping at straws here until I send it to my legal beagle.

[TravelGal]

Her response (since you're out of state for her) "If it was me, I would call the local bar association for the county, and ask for a referral(s) to local intellectual property attorneys who might speak with him and see what might be done to help him."

This prompts me to send your story to a few other attorney friends who might have IP attorney friends in Oregon.

[TravelGal]

Further research, meaning a call to an attorney's office, says Intellectual Property is international so you do not need an attorney in your own state. Shows much the other one didn't know. If you're interested call this office. They have been doing quite a bit of IP work lately.

Rushing McCarl LLP
phone number 310-896-5082
website rushingmccarl.com

[nrc]

OK, starting about three years ago my 3d printer habit unexpectedly morphed into a reasonably lucrative side gig, enough so that it's paying for the daughter's college and allowed my wife to quit her job and work as my packing/shipping department. I am as shocked by all of this as anyone reasonably could be. I'm selling a thing of my own unique design, which is inherently un-copyrightable, and I'm selling lots of them, primarily on Etsy. All groovy, right?

Very cool. Just a random factoid, probably irrelevant. Designs aren't copyrightable, but you can do a "design patent" which is a patent of a very specific design or decoration. This prevents someone from making an exact copy of a design.

Of course lawyers are always going to look at something like this from the perspective of "How am I going to get paid?" If you can find others who are being harassed in a similar manner maybe it could become a class action suit which increases the lawyer's opportunity to get paid.

[datachicane]

I had hoped to avoid lawyering up on this, but it looks like I may not have an alternative. The real pain-inducing part isn't even the law, but the policy choice (shoot first, ask questions later) of all of the major eCommerce players, together with the fact that I am firmly convinced that every one of them only has about three actual employees, probably sitting on milk crates tapping away on Blackberry 8700s in some ministorage unit someplace.

Design patents are the least of my worries. The thing is pretty simple, but can't be manufactured through injection molding, and requires a very precisely calibrated 3d printer. Probably because of what I can only assume is an ongoing worldwide crisis brought about by a critical shortage of Mandalorian helmets and toy tugboats, there don't seem to be too many folks operating in that space. Beyond that I've developed some, uh, unorthodox technologies that allow me to economically crank these out in huge volumes. Nothing that isn't already out there, I've just put a bunch of existing stuff together in an unusual way.

[TravelGal]

I had hoped to avoid lawyering up on this, but it looks like I may not have an alternative.

The guys I quoted are starting a new office so they may be a bit less pricey.


I've just put a bunch of existing stuff together in an unusual way.

Sounds patentable to me unless you don't want to rattle the chains of the existing stuff.

[datachicane]

I'm not at all worried about rattling chains, more about recognizing that I'm not doing anything particularly unique beyond paying attention to design details and violating a couple of accepted conventions in 3d printing.

Don't want to shill, but this is me, just to show that I'm not kidding about how simple this is:

https://www.magneticgametiles.com/

[nrc]

Very cool. Makes me wish I played a game where I could use them.

Unfortunately I hold the patent on the hexagon so my people will be in touch. :D

[TravelGal]

I'm not at all worried about rattling chains, more about recognizing that I'm not doing anything particularly unique beyond paying attention to design details and violating a couple of accepted conventions in 3d printing.

Don't want to shill, but this is me, just to show that I'm not kidding about how simple this is:

https://www.magneticgametiles.com/

This all got me thinking about the Pet Rock. Nothing unique about a rock. Not patentable. BUT, trademark may be your answer. That's the avenue Gary Dahl used. It's all in the marketing, graphics, and instructions. PS, what you do may look simple to you but no one else has thought of it so it's brilliant. Accept that. Seriously.

[G.]

Nothing that isn't already out there, I've just put a bunch of existing stuff together in an unusual way.


I'm not at all worried about rattling chains, more about recognizing that I'm paying attention to design details and violating a couple of accepted conventions in 3d printing to create a design and method that is completely unique.



That is one of the definitions of a patenable idea, taking others' work (whether patented or not) and putting them together in a unique manner to create a better method or design. Patent applicant decides if it's "better", Patent office decides if it's "unique".