More Than a Game: Enforcing Rights against Copycats in the Toy Industry
How toy makers can fight online knockoffs, and why every tool has predictable limitations.
In the toy business, a hit product can explode overnight. Clever plush designs, new fidget items, collectible figurines, or the latest board game can all go viral and become instant sensations, largely due to the ability of online marketplaces to amplify the speed at which word of the hit toy travels. But the same channels that propel a toy into the spotlight also make it easy for copycats to follow. A factory can reproduce a look within days. A seller can build a storefront from scratch in minutes. A listing can reach customers worldwide before the brand even knows the copy exists.
For toy makers, the practical response usually involves a blend of platform enforcement and, for those with the resources, litigation. Neither path is clean. Platform takedowns can be fast but fragile. Lawsuits can be powerful but expensive, slow, and often aimed at hard-to-target unknown people operating through disposable accounts. The gap between what enforcement mechanisms promise and what they reliably deliver is where many businesses get stuck.
A realistic strategy starts with an unglamorous premise. Enforcement is less about finding a single silver bullet and more about applying pressure in a way that is proportionate to the harm. It requires understanding what each tool can do, what it cannot do, and how adversaries predictably exploit the seams.
The Platform Playbook: fast relief with built-in leakage
Most toy brands first encounter infringement through the marketplace itself. Amazon, eBay, Etsy, Walmart Marketplace, Temu, AliExpress, TikTok Shop, and smaller sites all host third-party sellers at scale. The platforms have their own reporting systems, and some provide specialized programs that promise faster action for rights holders.
From a practical perspective, platform takedowns are popular because they are cheap and easy to use and, when effective, provide quick resolution. If a listing is siphoning holiday sales, you want it down before the weekend, not after the weeks or months required by other strategies. Many brands also prefer platform tools because they do not require identifying the seller, which can be difficult when the storefront shows only a brandless username and a vague location.
But speed comes with tradeoffs.
First, notice systems move quickly, but blindly. Takedown systems are generally designed for high volume. A rights holder submits an assertion, a platform (hopefully, but not necessarily, a person) reviews it, and a listing is removed or restricted. On some platforms, the review can feel almost automated, and sometimes it is. The practical result is that brands can suppress obvious counterfeits quickly, especially where the infringement is blatant, such as direct image copying, identical packaging, or use of the brand’s trademark in the listing title.
Yet that same streamlined process can undercut durability. A seller can relist the same product under a new identifier, swap photos, alter a product title, or route traffic through a second storefront. Sometimes the infringer is not even the original poster. The same product can appear under multiple sellers who all source from the same upstream supplier.
Takedowns, in other words, are often whack-a-mole. They reduce visibility, but they do not necessarily eliminate supply.
Some major marketplaces offer enhanced tools for brands, often tied to verified intellectual property and account standing. Amazon Brand Registry, eBay’s Verified Rights Owner (VeRO) Program, Etsy’s Intellectual Property Policy tools, and similar offerings from Walmart and other platforms provide centralized reporting interfaces, expedited review queues, and in some cases proactive monitoring. These tools can speed up review, expand reporting access, and provide ways to track repeat offenders. Still, a platform’s incentives are complicated. Platforms want to reduce fraud, but they also want inventory breadth, transaction volume, and seller growth. This does not mean platforms act in bad faith, but the enforcement system is designed to balance competing priorities. A toy maker seeking aggressive removal of lookalikes is sometimes pushing against a structure that tolerates some gray area, particularly where claims are not clean counterfeits but are instead about what amounts to arguably confusing similarity.
A rights holder can feel this most acutely when infringement is close but not identical. Consider a plush animal with a distinctive face and stitching style. A copycat might change one feature and argue independent creation. A platform reviewer may decline to remove it or may remove it once and then restore it after a seller dispute.
Platform takedown systems provided pursuant to the Digital Millenium Copyright Act (the DMCA) offer more certainty, but the DMCA’s counter-notice framework limits permanence. The DMCA provides a framework for reporting copyright infringement to platforms. And since copyright is a common enforcement tool for toy brands, particularly for character art, product photography, packaging illustrations, instructions, and sculptural works that qualify for protection, the DMCA is the most commonly available platform takedown mechanism. Many marketplaces use a DMCA-style workflow that implements the basic requirements of the statute. A rights holder submits a notice, the content comes down, the seller can submit a counter-notice, and the platform may restore the content after a waiting period unless the rights holder files suit and provides notice of the lawsuit.
This structure offers real benefits by providing a mechanism to remove infringing content without first going to court, and it gives platforms a standard procedure that reduces their risk when they act, so they are happy to comply with the takedown request so long as it is properly filed. But the limitations of the mechanism are built into the design, as a counter-notice creates a path for restoration even when the rights holder is confident the listing infringes. A seller willing (even in bad faith) to submit a counter-notice can force the brand to choose between filing suit or watching the listing return. If the brand is facing dozens of listings, the cost of filing suit for each can be prohibitive. Infringing sellers who understand the limitation can easily exploit it.
Toy brands also run into a second constraint. Copyright is powerful for expressive content, but not everything a toy company wants to protect is copyrightable. The idea of a “squishy stress ball shaped like an animal” is not protected. Functional aspects of a product are outside copyright, and so are general styles. A rights holder can sometimes rely on copyright in the product artwork and photos even if the product shape itself is more difficult. But as sellers generate their own photos and tweak designs, copyright leverage, and the ability to use the DMCA, can diminish.
Another practical risk in takedown campaigns is overreach. Platforms vary, but they typically warn that abusive or inaccurate reporting can lead to penalties. More importantly, a rights holder who makes careless assertions can create legal exposure. There are legal theories that can apply when a party knowingly makes false claims in a takedown process. Even when that exposure is not pursued, sloppy reporting can erode credibility with platforms, which matters when you need fast action later.
For toy makers, the lesson is to build a repeatable internal process that confirms ownership and the scope of rights, preserves evidence, and uses consistent templates. Each filed notice and response should be logged to evidence a system of enforcement. This discipline is not glamorous, but it is often the difference between a takedown program that remains effective and one that gets bogged down in reversals and platform friction.
But platform mechanisms, while useful, almost necessarily amount to an ongoing game of whack-a-mole.
Litigation: Sharp and powerful, but with its own structural constraints
When platform tools are not effective, and when the stakes are high enough, litigation becomes the next step. Lawsuits can do what takedowns cannot. A court can order a defendant to stop selling and can be used to keep platforms from accepting the seller’s goods. Moreover, it can award damages and can even freeze the seller’s assets in certain circumstances. Perhaps most importantly, it can reach beyond a single listing and target an operation.
But litigation against online sellers comes with predictable problems. First, the costs of litigation (in both dollars and resources) can be prohibitive. Even getting a complaint on file can represent an untenable expense for a new toy company. And full-blown litigation can easily carry 7- and 8-figure price tags. Even assuming the company has such resources and the costs are warranted, the defendants may be anonymous, overseas and difficult to gain jurisdiction over, or judgment-proof. Many bad actors are quite aware of these issues and are comfortable playing jurisdictional and procedural games that increase cost and undermine the efficacy of litigation.
A toy brand often starts with a storefront name and a product listing. To file a meaningful lawsuit, you need an entity or person to sue, and you need a way to serve them. This information can be difficult to attain, but brands can use pre-suit investigation, test purchases, and investigator work to trace shipping labels, payment processors, and business registrations. They can also pursue early discovery in some cases, seeking information from platforms and intermediaries.
Still, the target may remain elusive. Sellers can use freight forwarders, virtual addresses, and layered accounts. A platform may have real identity information, but access to it may require subpoenas and court orders, which take time and can be contested, further increasing expense.
Even if you identify a likely defendant, you still need a court that can exercise jurisdiction. Online sales into a forum may support jurisdiction, but defendants increasingly challenge it, especially when they are foreign and their contacts are diffuse. Service of process can also be a battle, particularly for overseas defendants. Courts may allow alternative service methods in some contexts, but defendants can argue improper service later.
The practical effect is that litigation against online sellers often includes a front-loaded procedural phase that is costly and uncertain.
Even assuming you are able to successfully sue a given defendant, a judgment is a piece of paper unless it can be enforced. Some sellers are small, undercapitalized, and disappear when sued. Others are part of a larger network but are structured to keep assets out of reach. If a seller is overseas and has minimal U.S. assets, collection can be difficult even after winning, and the injunction obtained can be rendered useless if the seller simply reincorporates.
Schedule A Defendant Litigation: the internet enforcement machine with known failure modes
In the past decade, one procedural strategy has become common in intellectual property cases involving many anonymous online sellers. Plaintiffs file suit against dozens or even hundreds of unnamed defendants listed on a schedule (usually, “Schedule A,” thus leading to the name of the strategy). The defendants are often online storefronts associated with counterfeit or infringing products. Plaintiffs frequently seek early injunctive relief, sometimes including orders that restrain assets held by payment processors and marketplace accounts. The goal is to disrupt sales quickly, identify the sellers through expedited discovery, and pressure settlements or obtain inunctions to remove the sellers from marketplaces.
This approach has attractive features for a toy maker. It can scale. It can be fast. It can create leverage before a seller can drain the account and vanish. It can also reduce the cost per defendant compared to filing dozens of separate cases. But it is controversial and uneven across jurisdictions, and it comes with predictable constraints.
Some courts scrutinize these cases closely. Concerns include whether defendants have been afforded due process, whether defendants are properly joined in a single action, whether the evidence supports broad relief, whether restraints are justified, and whether the court has jurisdiction over each defendant. Judges also worry about the risk of collateral damage, such as freezing legitimate sellers or sweeping in non-infringing products. For brands, this means the strategy’s success can depend heavily on forum selection, the quality of investigation, and how narrowly the requested relief is tailored.
Schedule A cases often move quickly at the start. Plaintiffs may seek temporary restraining orders with limited notice, and courts may grant relief that locks accounts before defendants appear. This speed is the point. It is also where errors happen. If a brand’s evidence is thin, or if it sweeps in sellers based on similarity rather than strong proof, it can freeze the wrong account. That creates reputational risk, legal risk, and judicial skepticism that can undermine the case and the brand as a whole. It also invites counterattacks from defendants who appear and contest the relief, turning what was supposed to be efficient into a hard-fought injunction battle.
Many Schedule A cases end with quick defaults or settlements and dismissals. For a toy maker, such resolution can be a win if it removes listings and recovers some money. But the usual structural limitation remains as defaults and settlements often bind only the named storefronts. Sellers can reappear under new accounts. Unless the brand identifies upstream manufacturers and logistics nodes, the supply chain remains intact.
This is why some brands treat Schedule A litigation as a recurring program rather than a one-time fix. That can be effective, but it also normalizes a treadmill that continually consumes resources.
Customs Enforcement: Powerful at the border, narrow in scope
It is worthwhile to note the additional enforcement tool of customs enforcement. For toy makers facing large volumes of imported knockoffs, U.S. Customs and Border Protection can be a meaningful but often misunderstood enforcement channel. When a brand records its registered trademarks or copyrights with Customs, CBP officers have authority to detain, seize, and ultimately destroy infringing goods at the border. In theory, this targets infringement upstream, before products ever reach an online marketplace or consumer.
In practice, customs enforcement is most effective against straightforward counterfeits that clearly bear a protected brand name, logo, or copyrighted artwork. Officers are not tasked with making close calls on trade dress similarity, product “look and feel,” or subtle design variations. If the infringement requires nuanced comparison or consumer confusion analysis, border enforcement is unlikely to catch it.
Even where recordation exists, CBP’s role is reactive and selective. The agency processes immense volumes of imports, and inspections are necessarily risk-based. Shipments routed through transshipment hubs, mislabeled, or broken into small parcels can evade detection. Many online sellers exploit this reality by shipping directly to consumers in low-value packages that are less likely to be inspected.
Customs enforcement also does little to identify sellers or dismantle distribution networks. A seized shipment may temporarily disrupt supply, but it does not substitute for marketplace takedowns or litigation aimed at the parties’ controlling listings, payments, and storefronts. As a result, customs tools tend to function best as a complementary pressure point rather than a standalone solution, reinforcing other enforcement efforts while rarely ending the problem on their own.
Building an Enforcement Strategy that Anticipates Shortfalls
Toy makers who win the enforcement game tend to do a few things consistently. None of them is dramatic. They are operational.
- Start with the cleanest rights, and deploy them surgically
If the product involves a brand name, logo, or character identity, trademark claims are often the most straightforward. If the infringement involves copied artwork or photos, copyright can be the sharpest tool. If the overall look and feel of packaging and product presentation has acquired distinctiveness, trade dress can matter, but it can be harder to prove and harder to enforce quickly through platforms.
The practical point is to match the tool to the strongest right, not to the frustration level. Overclaiming can backfire.
- Evidence collection is an enforcement multiplier
Before sending takedowns or filing suit, capture the listing, images, pricing, seller identifiers, and any customer confusion indicators such as reviews and Q and A sections. Consider test purchases that preserve packaging, inserts, and product details. Maintain a chain of custody for physical samples. In litigation, these steps help you move faster and seek stronger relief. In platform enforcement, they help you respond when a listing returns under a slightly altered form.
- Pick battles based on impact, not outrage
A toy company can spend endless time chasing tiny sellers who sell a handful of units. The better approach is triage. Focus on top-selling listings, repeat offenders, and sellers that use the brand name or create clear confusion. Consider upstream signals. Multiple storefronts selling the same knockoff often point to a common supplier.
If resources allow, aim at the network, not the noise.
- Treat enforcement as a product of coordination
Platform takedowns, payment disruptions, and litigation work best when coordinated. A lawsuit can support takedowns by showing seriousness and creating discovery pathways. Platform data can support litigation by revealing connections. Payment processor evidence can reveal supply chain nodes. Customs tools can matter if the brand has recorded rights and is prepared to act on inbound shipments.
No single lever is enough. The best programs integrate them.
The Uncomfortable Truth: Enforcement is about reducing harm, not ending it
Online infringement is not going away. The barriers to entry are too low, the incentives too high, and the enforcement terrain too fragmented. The strongest brands do not pretend they can eradicate copycats forever. They build systems that make copying less profitable, less stable, and riskier across multiple points in the supply chain.
Platform takedowns can suppress visibility quickly, but they leak. DMCA-style systems create a fast path down and a fast path back up. Customs enforcement can disrupt imports before infringing goods ever reach a listing, but it is selective, blunt, and easily evaded by small-parcel and direct-to-consumer shipping. Litigation can deliver court orders and discovery, but it is constrained by jurisdiction, anonymity, and collectability. Schedule A cases can scale and create leverage, yet they depend on judge-by-judge tolerance and often function as a repeating cycle rather than a permanent cure.
For toy makers, the practical advantage comes from clarity. Knowing where each mechanism predictably falls short is strategic rather than cynical. It allows companies to allocate time and money where enforcement actually changes outcomes, and it reduces the frustration that comes from expecting any single process, whether at the platform, the border, or the courthouse, to do a job it was never designed to do.
