Copyright Infringement Claim

I was reading a conversation that happened a few hours ago; where an owner of an ENS had their name delisted from OpenSea, a copyright infringement claim was made against the ENS. How should a person go about dealing with this sort of Issue?

As far as I know they just can’t list it on Opensea. They still own it and can list somewhere else, but OS has their own terms of service. I am a fan of LooksRare.

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I was reading that you cant even claim copyright. because the name is a trademark…?
which would make it an invalid claim… I would suppose.

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I have no idea to be honest. A few years ago Sony issued me a takedown notice over a recording that was entirely my own creation. They probably have a team that gives you the runaround and tells you to contact someone else. That’s what happened to me with Sony.

Anyone can easily create a fraudulent DMCA notice and send it to (for example) YouTube, and then usually they’ll automatically demonetize and take down the content, no questions asked. Then it’s an arduous weeks-long process of e-mailing non-responsive support reps until anything gets done, and then maybe your content will be restored, or maybe you’ll hit a dead end with a canned response from the rep and you’ll have to start over again until you find someone who listens to you. Meanwhile your livelihood as a creator is destroyed, especially if your entire channel was taken down because of three strikes. Thanks for playing.

OpenSea is the same way, except they’re even less responsive than YouTube.

But they are centralized companies and have every right to list or delist whatever they want. Some DMCA notices are valid, and they’re just complying with regulations using a blunt instrument since they don’t invest time or resources into customer support.

Competition is a good thing, so go out and vote with your wallet and virtual feet. In web2 you created identities at centralized places like Google and hope they don’t rug you. In web3 you are the sole sovereign of your own identity and can choose to bring that account with you to wherever you want, and they hope you don’t rug them.

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IP is a surprisingly complex area of law, not to mention the potential jurisdictional questions that can further complicate things.

For example, we all know Amazon and Apple are registered trademarks but if you registered Amazon.eth or apple.eth without any additional facts it would be nearly impossible for them to successfully claim you are infringing their trademarks. This is do to the nature of the words Amazon and Apple which are descriptive and generic. On the other hand if you created some website on Amazon.eth or apple.eth that either confused the public into thinking your websites were official websites of Amazon or Apple, or if your websites were otherwise harming the goodwill associated with those marks, then Amazon and Apple would likely have solid claims against you for trademark infringement.

Unfortunately due to the centralized nature of OpenSea remedies are limited. You could contact their customer support, review their terms to see what procedures are in place if any, hire a lawyer to respond to a takedown request, but for the most part OS is free make decisions independently and run their platform as they see fit.

As a funny side note I registered geocities.eth and because Yahoo’s TM for GeoCities was cancelled in 2020 I decided to file a trademark application for GeoCities with the USPTO using my ENS name in part, and in February of this year I became the owner of the GeoCities trademark. After obtaining the TM I submitted the TM to Twitter requesting the @geocities handle (which has been suspended for years). If @geocities was actively being used and infringing my mark I could file a takedown request which I’m sure Twitter would comply with, unfortunately so far Twitter seems hesitant to process my request and give me the suspended @geocities handle. It would be ridiculous if they don’t give a suspended handle to a lawful TM owner, but that is their right and just highlights one of the problems with centralized platforms that makes decisions behind closed doors.

Out of curiosity can you share the ENS name that was take down?

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@ENSPunks.eth
ebay.eth
tommyhilfiger.eth
tedx.eth

Love what you did with Geocities.

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Thanks, since the the original GeoCities was shutdown somewhat controversially against the wishes of the community, my goal is to relaunch it as a community governed brand/IP (or possibly donating it to internet archive). Ideally Geocities.eth can be developed into a .eth website builder, similar to the original GeoCities web builder/free hosting platform, but its outside my skillset so it’s a work in progress.

@deepnode.eth based on the 3 examples provided I see why OS made the decision to remove them, they aren’t generic or descriptive terms, though I’m still of the opinion it would be difficult for the TM holders to win a claim of trademark infringement in court without more facts showing actual confusion. I wouldn’t hold out much hope of OS reinstating those names on their platform, unless perhaps the owners of tommyhilfiger.eth and tedx.eth can provide proof their legal names happen to be Tommy Hilfiger and Ted X. respectively, which of course is very unlikely.

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It’s a really interesting area and I think one that there is a lot of legal cases to happen on till it’s clear which side the law courts will land on. Then there is the separate point, as to whether the opinion of the law courts in country x even matters when it comes to ENS. In my view there are two thought camps;

  1. web3.0 (including ENS) is a free for all, anarchy!
  2. web3.0 should have at least some rules/structure/law

I’m in camp 2, but I do understand the people who are in camp 1, absolutely. On this specific issue, I’m more towards camp 1 - if Tommy wanted the brand, they should have bought it on day 1, not roll up late to the party and try to prevent other people from using the domain and/or try and force the domain to be transferred to them. ICANN DNS domains have this written into the rules with the sunrise period etc, but ENS doesn’t have this.

I know there’s a common theme about “big corporates” and how we all want to beat them down, but it’s important to look past this. Try and also consider it from the other parties’ point of view. Imagine you had spent years building a specific brand, and you found that someone else had registered your ENS name and was profiteering from your brand - would you still feel the same way? I set my personal view out above - tough lucky Tommy, on this particular point - but that’s because I strongly believe in article i of the constitution.

As mentioned above, the problem is that the web3.0 dream isn’t being served by services such as OpenSea, because they are basically perpetuating the old system but marketing it as web3.0. There are many projects trying to do exactly that and I believe some of them will be successful and will replace OS. Decentralisation is a journey, rather than an immediately achievable goal (no matter what marketing crap you might read on many current projects!).

I wasn’t going to mention the names—but they have been mentioned above already. In that regard, what if someone had the name Ted Xing for example…

I expect to see more of this happening as things further along. Especially when SIWE adoption becomes prevalent.

I agree, they don’t want to deal with it and they shouldn’t have to. If it was my platform i would say “nope no thanks, don’t need your legal drama”

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