This article is intended to assist small businesses with guidelines as it relates to creating doll products. It is not legal advice. For specifics relating to your business we do recommend to speak with a lawyer to review the specifics of your store and wording.
THE AI TROLL
It has been discovered that AI is being used to uncover copyright infringement and serve notices on popular platforms like Etsy. Etsy's policies allow reporting and enforcing of brand trademarks. These AI agencies troll listings for specific key words such as brand names or doll face molds. Because it's not human, it has the potential to make mistakes in identifying or not detect some people while detecting others. This identifies the "why me and not them" claims that every small business who is hit asks. However Etsy has a very strict and somewhat scary procedure on doing a counter claim or appeals to a copyright strike in which you CAN write to say someone has made a mistake. But then they send that paperwork to the brand and give the brand 10 days to make a court case against you. If they don't, yay you win and get your listing back. If they do, you are going to court. Seems like high stakes just to let them know an AI troll mis-read your listing information. No one to date has recovered their listing or been able to repost on the Etsy website after a copyright strike.
WHEN YOU ARE HIT
When you are hit, you lose your listing and all the reviews of it. You can't repost it, you can't recover it and if you try to battle it out with Etsy they can disable your account for going against their policies. There was a 3-Strike rule that Etsy had written into their policies that allowed them to take down a store after 3 listing hits for copyright. It seems that recently due to how many stores are encountering this issue all across their platform that they have stopped taking stores completely down after 3 hits. This data was obtained from talking with many shop owners that came forward and gave the details of how their shop was hit and how many times. It is unknown if they will re-activate the 3-strikes policy in the future. It is unclear if they stopped removing shops in response to losing shop income or seller complaint, we hope that it was though!
When a store is completely shut down, you lose a lot, but not everything. You lose access to the Etsy App which sends you notifications, so if customers are messaging you, you won't know unless you log in from a computer. They hold any income you've made from sales to protect themselves from refund requests when your shop disappears. This is returned in a period of 3-5 months after shut down when they feel it's safe no issues are coming. If you continue filling your orders and keep your Etsy customers happy they won't hold it forever. You do have to purchase your shipping labels outside of Etsy though. As part of shut down, they disable all your listings and all your traffic and income is shut down. You are able to recover data from active listings such as your descriptions and photos but you lose anything that has sold. All the reviews you have obtained are no longer accessible. Client conversations and messaging remains active even long after you are shut down. You can use this to individually message your customers and let them know what happened to your store or talk about current orders. There is no mass emailing function.
Many Etsy sellers don't realize the power they gave Etsy as a seller. As they bring their customers and referrals to the platform, those customers use the platform. Etsy's marketing efforts don't favor you when bringing your own customers, they market the product and want the sale. They have no issue referring you customers once on the platform to competitors who sell similar products. That epic traffic that keeps pumping buyers to your shop can be shut off at any time by Etsy for any of their policies and they are happy to keep your customers you've referred as well. We 100% recommend that you have independent means of retaining your customers.
AFTER YOU ARE HIT
If your store is not shut down you can make changes to your listings to comply and not be hit again. Due to the fact that the AI trolls detect at random, we do recommend if you are staying on Etsy that you have some back-up precautions so you don't lose your livlihood if you are hit again. A separate website, alternative store, or alternative platform that is set up as a fall back are all good ideas. We always reccommend when referring customers to purchase, recommend them to come direct first and then Etsy as last resort. Etsy has no issues trying to market your competitors and keep your clients if you are ever shut down.
If you store is shut down, all is not lost. You just need to sell on a different platform and start a bit over, but it is doable and you can be up and running after some hard work. There are many options out there you can hire someone to build you a website, you can use popular alternatives such as Wix or Shopify that have drag and drop applications or you can sell off Instagram or Facebook.
GUIDELINES TO REVISE YOUR LISTINGS
If you are still on Etsy, you have a stricter guideline to follow because AI will find brand keywords and recognize brand doll models and flag you. How you word your listings, may not help you because the AI is not going to identify terms of use or that you have a careful disclosure written up. As painful as it is, removing brand names from your listing wording and blocking out the faces is the only way forward to protect yourself.
It's a theory - but websites are not hit as much. We believe that has to do with the vast internet and picking up keywords and pictures would also pick up all the consumers and personal doll photos. You'd have to comb through that data to find those that sell. We have the theory that is why AI is trolling marketplaces rather than websites. However this doesn't mean that you can go wild on your website. A human can still call you out for improper use on a website. You are however in complete control of your own website and can respond properly to any requests without fear of losing your income. Using recommendations from lawyer input in response to this specific issue, these are the recommendations given.
Read through: Fair Use of Trademarks (Intended for a Non-Legal Audience) - International Trademark Association (inta.org)
The article above gives a lot of good information on how to word your listings to keep out of trouble.
Top guidelines to put into practice:
Fair Use requires that you demonstrate you can sell your product without dependency on a single brand. To do this:
Remove a specific brand name out of your title and keep it related to the size doll category you are selling in.
If you do mention a brand name, mention others too.
If you need to use a brand name, use it as a descriptive entity like a reference to size or scale.
Use other doll brands in your store to illustrate your products can be used for different brands
Fair Use requires that you don't suggest that you have been endorsed or sponsored by the brand
Add a disclosure at the bottom of your listings to state that you are not afflliated or endorsed by any brands you mention
Don't use words that lead anyone to believe the product is made by the brand. For example don't use wording like American Girl Dress and instead use Handmade Dress for 18" Dolls such as American Girl Dolls. This can also be a variance of This dress fits: and list the brands the dress will fit. You can also use words like "The brands above are used to reference the size and fit types of dolls that can be worn". Note that these are suggestions for off-marketplace listings as an AI troll will pick up the words American Girl or brand name regardless of how you are using it in the listing.
Fair Use requires you don't use a brand name to enhance your own product as leverage, or ridicule or damage the reputation of the original brand. This would be saying things like My Dress is better than American Girl or American Girl makes bad products, etc.
If you are designing creative products that are exclusively used for one brand only, it is recommended that in order to stay away from "brand dependency" for your products that you design products with a more universal concept in mind. Dress patterns for dolls can be graded and offered to fit multiple dolls of similar shapes and offered in a package that shows more than one doll on the cover. Doll dresses/clothing can be made with some flexibility or adjustability to fit multiple brands. Doll crafts that are scaled for one doll might be able to be used by other dolls of similar scale. There are small changes you can make to stay away from these hot points that lawyers look at and can cause trouble.
What is an After Market Product?
Aftermarket products is a market for parts, accessories, or products used to maintain or improve an existing product. We often see this term as associated with cars, cars are manufactured with original parts and then a third party develops a replacement part and usually uses a description like "Engine for a Ford 2000 Truck". In this they are using the brand name to identify as a description of what the part is used for. It would be very difficult to tell a consumer what the engine would fit without use of the brand name or model for which it was designed. In doll world, the creative community makes aftermarket parts for dolls. There are repair kits to help fix issues with the original dolls such as a restringing kit for American Girl. As dolls all use different string widths and lengths, you wouldn't be able to sell it as just a restringing kit without reference to the doll it was for. Likewise wigs that fit a certain size doll or clothes that fit a certain size doll. Many of these doll products are specifically designed to fit a certain brand. You just need to word it as reference to a size, scale, or replacement part.
Feel free to ask questions or share your story #facelessnotvoiceless