Start here
The Zest

Selling Fan Merch on Etsy? How Trademark Takedowns Work

Written by

"Etsy pulled my listing for trademark infringement, and the title literally said unofficial. Can they do that?" Yes. When a rights owner files a report that follows Etsy's policy, Etsy removes the listing, and it doesn't decide who's right. Words like "unofficial," "inspired by" or "fan made" don't change whether a product uses someone else's brand in a way that suggests a connection. And because repeat reports can cost you the whole shop, the holiday rush is the worst time to learn how this works.

Here's how the process runs, why the disclaimer doesn't help, and what your options are.

How a takedown happens on Etsy

Rights owners report listings through the Etsy Reporting Portal, and shop names, usernames and some videos through a separate reporting form. Etsy may ask the reporter for more before acting, like a letter of authorization, identity verification or documentation of the right being claimed.

Once a report meets its requirements, Etsy's policy is direct: it "will remove material cited for alleged intellectual property infringement." Etsy describes itself as a venue. It says it can't speak for rights owners, give legal advice, or decide whether a listing actually infringes. It does reject reports it believes are false, fraudulent, incomplete or made in bad faith.

After a removal, Etsy tries to contact the seller with information about the report, and it may pass along a copy that includes the reporting party's name and email address. That contact information matters, because for a trademark report it's the main way forward.

Why "unofficial" doesn't fix it

Trademark law doesn't only cover confusion about who made a product. It also covers confusion about affiliation, sponsorship or approval. Fan merch lives right in that zone, because the reason it sells is the connection to the team, the show or the band.

A federal appeals court case shows how far that goes. Smack Apparel, a Tampa company, sold t-shirts in university colors with references to the schools' big games, aimed at their football fans. One shirt didn't even use the school's name. The Fifth Circuit held that consumers were likely to believe the shirts were sponsored or endorsed by the universities. Smack's own logo was on the shirts, and the court wasn't convinced it worked as a disclaimer: the logo sat in a space 2.5 inches wide, and a buyer "could believe that Smack's logo merely indicated that it was a licensee." The court also rejected Smack's nominative fair use argument, calling the shirts an attempt to capitalize on consumer confusion.

The same problem follows a word like "unofficial" in a listing title. The product still uses the brand to sell. And on Etsy, the wording doesn't get weighed at all, because Etsy isn't deciding the merits of the claim.

Fan merch can draw either kind of report, and sometimes both. Team names, show titles, logos and catchphrases are often registered trademarks. Characters, artwork, screenshots and stills are usually protected by copyright. A copyright owner has the exclusive right to reproduce the work, to prepare derivative works based on it, and to distribute copies. Drawing your own version of a character doesn't automatically take you outside those rights.

The difference matters because of what you can do next. Etsy accepts counter notices for US-based copyright reports only, under the Digital Millennium Copyright Act. A counter notice is a statement under penalty of perjury that the removal was a mistake or misidentification, and the statute requires you to consent to the jurisdiction of a federal court. Etsy sends it to the reporting party, and the listing can come back 10 business days after Etsy processes it, unless the reporter tells Etsy it has filed a court action or a Copyright Claims Board claim.

For a trademark report, there's no counter notice. Your options are to contact the reporting party, explain why you think the report is wrong, and ask for a withdrawal. Etsy accepts withdrawals only from the rights owner or its authorized representative, reviews them case by case, and says they don't automatically restore a shop's status. Etsy's help center also tells sellers not to relist the removed item unless the issue has been resolved with the other party.

Repeat reports can cost you the shop

Etsy's policy says it terminates selling privileges of members who are subject to repeat or multiple notices, in appropriate circumstances and at its discretion. If it believes a terminated seller opened a new shop, it can refuse service there too, and it applies these steps to accounts it believes are connected. For copyright, platforms like Etsy are expected to have this kind of policy: the safe harbor in the copyright statute requires a policy for terminating repeat infringers.

That's why a single removal is worth taking seriously, even for an item that barely sold. Reports add up, and the shop is what's at stake.

Before the holiday rush

Go through your listings with one question: does this sell because of someone else's brand? Check titles, tags, descriptions and photos, not just the product. A brand name in the tags or the title is part of the listing too.

If you have a license for any of it, keep the paperwork where you can find it. If you don't, the safer path is merch that sells on your own designs and your own name. That's also an asset you can protect. Before you put a new shop name or product line on everything, search it before you file, and if you sell on other platforms too, the same brand questions come up with Amazon Brand Registry and TikTok Shop's brand authorization.

If you're building a shop around your own brand and want to protect the name, you can see how the search and filing packages work on the services page, and the FAQs page answers most of what comes up before a first call.

Book a free 15-minute discovery call with the attorney (opens in a new tab)

(No legal advice is given on the discovery call. It's a chance to tell me what you're building and hear how the process works.)

Sources

This article is general information, not legal advice. Reading it does not create an attorney-client relationship.

Start here