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In January 2020, Jade Myers, a successful seller of secondhand clothes on Poshmark, came across a trove of designer swimwear and apparel at a thrift store that she knew would be a hit with her shoppers. She spent a lot of money on pieces, prepared and photographed them, and listed them on her shop. The listings turned into an intellectual property nightmare within days.
The pieces that were purchased for resale were from the brand Onia x WeworeWhat, designed by Danielle Bernstein. After Bernstein was made aware of the listings on Poshmark, she jumped into the accounts of the brand to ask them to take the products down, because they had been mistakenly donated to charity. Bernstein took the legal route after the two weren't able to reach an agreement on payment after the listings were pulled to sell back to the brand. Bernstein was threatening to have her entire shop shut down because her revenue was at risk.
I had already accepted the idea that I was going to lose my business. That is the point of desperation and sadness that I felt.
Noupscale is a file on thechorusasset.com.
A picture of an email that she received.
The image is of Jade Myers.
Small businesses say they have struggled with the phenomenon for years and that it is one of the reasons why Myers' experience rippled through the fashion and resell corners of social media. If you list a secondhand product from a fashion company, you could be in trouble with the internet service provider if they try to block or restrict the sale. Independent merchants can be at risk of being destabilized by these takedowns. As consumers are beginning to embrace secondhand fashion over buying directly from manufacturers and big-box retailers, overzealous takedowns are getting more and more intense across different e-commerce platforms.
The secondhand fashion industry is exploding. The secondhand market in the US is expected to more than double by the year 2025, and retailers are trying to claim territory, according to an analysis by GlobalData. In June, Depop was bought by Etsy for $1.6 billion, and resale platforms have raised hundreds of millions of dollars this year. In recent years, brands like Levi's and Urban Outfitters have launched in-house vintage and secondhand sections, and luxury labels like Jean Paul Gaultier are renting and selling their archives.
Vintage and secondhand sellers say that the field is getting more crowded and they are running into more speed bumps. Jon Hershman, a seller based in San Diego, California, with expertise in vintage sunglasses, has been working to move the majority of his sales offline, so that shoppers can try the products on, and there are fewer returns. navigating online takedowns has become a problem.
Dozens of sunglasses have been removed from Hershman's store's shopping feed due to third-party infringement. Some brands get flagged more, like Christian Dior, but some sunglasses are allowed to stay up, while others are taken down. He says that requests to review the removal are denied.
The platform says the takedowns are to remove counterfeit products and make it a trusted place to shop. Meta, which owns the photo sharing site, knows that they don't always get it right and are always working to improve their approach, according to a spokeswoman.
It is difficult to get something put back up after being taken down.
Even when they follow the rules, their shops are at the mercy of the platform-specific policies and the rights holders. As his business grew over the years, Montana Bowman got hit with many intellectual property strikes. To get his products restored, he has to reach out to the brand directly, convince them the product is used and authentic, and get them to withdraw the intellectual property claim. Not every brand returns his emails, and a particularly frustrating situation involved a hat from a company that makes truck parts. The other Supreme, a famous brand of clothing, claimed to be the wrong company and never responded to questions from the other person.
The removal of three products, including a vintage hat by Mack Trucks and two Jack Daniel's baseball caps, was caused by strikes this summer. In late September, when he was still waiting on a response from legal teams, he was able to log into his website and see a red banner that said his store had been suspended. A seller said he got a final warning before his wedding.
After hiring a lawyer, he was able to get his shop restored. Thousands of dollars in lost income were caused by the absence of the store.
He says that it is difficult to get something put back up.
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This post can be seen on the photo sharing app, IG.
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A post was shared by Montana Bowman.
This story was not commented on by Etsy.
Legal experts say that you can resell items you have purchased, whether it is a 30-year-old T-shirt or a sweater you found at the thrift store that still had the tags. According to the first sale doctrine, once the original owner sells a product, you don't need their permission to resell it as long as you're honest about the condition and its provenance. Legal sales can be caught in a net cast by brands that have a financial incentive to look for counterfeits. Even if they know their sale is legal, small businesses have no recourse.
Liebesman has written about intellectual property takedowns on resale platforms and says that they are not simply an attempt by corporations to claw back lost sales. They could be used to change the law. She points to two pieces of legislation that could affect the resale landscape and make it harder for small sellers to operate.
The INFORM Consumers Act would require online marketplaces to take additional steps to verify the identities of high-volume third-party sellers. The SHOP SAFE Act would open platforms to lawsuits if they don't take certain steps to prevent counterfeit products. Liebesman and other critics of the bill say the legislation could end the ability of individuals and small businesses to sell products online.
Liebesman says that companies could be trying to create a climate to encourage Congress to do something about the manufacturing problem by putting up notices that are hard for small shops to fight.
She says that if you buy a used or resold good, you are not buying from the manufacturer. They don't want the competition of people buying used goods.
Liebesman says that cases where small sellers start the legal process are very rare. The story of Karen Dudnikov and Michael Meadors, who operated on eBay under the name Tabberone selling crafts made from licensed fabric, is an example. Tired of having their listings removed for being too similar, a couple sued Major League Baseball, Disney, Mars, and other corporations in order to keep their storefront open while representing themselves in court.
It is similar to the typical David and Goliath story.
Dudnikov says that when she and her late husband began challenging the takedowns, there was very little information online about their options. They were worried that they would go bankrupt and had no choice but to defend themselves.
Dudnikov doesn't think he should have had this experience. Companies know what the law is, but they use their corporate lawyers to control the secondary market.
Lynnise E. Pantin, a Columbia Law School professor who runs a clinic counseling small businesses pro bono, says that without the money or time to engage in legal proceedings, many entrepreneurs don't have many options but to accept takedowns. When faced with a copyright takedown, sellers have the option to counter-notice, which formally begins the legal proceedings, meaning a seller is opening themselves up to a lawsuit from the company in question.
She says that a lot of people just decide to do what they are told to do. It is similar to the typical David and Goliath story.
In her case, she met with Bernstein in person, coming to a handshake agreement on how to move forward. The letter from lawyers was an attempt to bully her smaller operation into being, and that's what the saga taught her. Kelly Mason, director of corporate communications for Poshmark, pointed out the official policy to The Verge. The two parties came to a good faith resolution on the issue.
The shift towards secondhand shopping has been good for resale apps and sellers, but it has been bad for small businesses. Many sellers on TikTok received the same email fromshopify notifying them that the platform found branded or trademarked goods in their shop, which caused panic in the seller community. The sellers were required to fill out a form acknowledging the products and attesting they were genuine or lose their stores. Major publishers suedshopify, accusing it of allowing piracy on its platform.
There is a difference between a stay-at- home mom who removes a stain to make money and a company that just began to turn towards the environment.
The seller says that they didn't really care until recently. Until they saw the money.
