Guest post by Corey J. Rosenbaum of Amazon Sellers’ Lawyer
As an Amazon seller, it is important to be aware that there has recently been an increase in Amazon complaints relating to intellectual property. If a seller sees that you are selling a similar product to them, they may believe it is a counterfeit product and file a complaint. Manufacturers and larger brand name companies have been filing more complaints on other seller’s accounts. If they see you are selling a brand name product at a cheaper price than they are, chances are they will file an Intellectual Property complaint against you.
What is Intellectual Property?
Intellectual property (IP) can be broken down into three categories: Copyrights, Trademarks, and Patents.
- A trademark is the protection of a name, symbol, or design, which is used to identify source goods or services. A sub-part of a trademark is a trade dress, which is “the overall appearance and image in the marketplace of a product or a commercial enterprise. For a product, trade dress typically comprises packaging and labelling. For an enterprise, it typically comprises design and decor.”
- Copyright law protects works of original authorship, such as novels, poems, or musical composition.
- Patents provide the protection of ideas such as inventions or technological processes.
Why is there an increase in Intellectual Property complaints for Amazon sellers?
Amazon.com does not monitor their platform for IP infringement. Unless an infringement is specifically brought to their attention, Amazon will provide continued access to their sellers. However, Amazon does allow customers and rights owners to have the ability to file a complaint if a product seems inauthentic or counterfeit due to the poor quality of the product. Once Amazon is notified, they will remove the listings and suspend the account holder to ensure Amazon is not liable for the claimed infringement. Amazon does not care whether these complaints are legitimate or merely an attempt by one seller to eliminate competition.
If there is a legitimate IP issue, there is no point in suing Amazon directly. Customers, manufacturers and sellers have attempted to file suit against Amazon, only to find that they were barred from recovery against Amazon because Amazon is just the platform, not the party who is actually infringing. Additionally, sellers on the Amazon online platform have agreed to binding arbitration under the seller’s terms and conditions when they registered as a seller on Amazon. This means any issues that arise between the seller and Amazon must be handled through arbitration.
Eventually, manufacturers, as well as other sellers took notice of the way Amazon’s policy for responding to IP complaints. They learned that once Amazon is notified of an infringement claim, they will immediately remove the respective listing and the user’s seller account after a simple inquiry is made as to the authenticity of the claim. This method is effective, it is immediate, and it is now a common loophole for manufacturers, brand name companies, and competing sellers to abuse in order to immediately eliminate competition.
Amazon.com’s motive is not to stop infringement on their platform, but rather, to protect themselves and their company from further liability litigation. That is why they are so willing to remove a listing or user based on little proof. It then becomes the party who was bullied to prove to Amazon that they are selling legitimate, authentic products that do not infringe on anyone’s IP.
What can you do as a new Amazon seller to protect yourself?
In order to protect your intellectual property rights, it is imperative that you take preventative measures before selling on Amazon. If your potential intellectual property product is not already registered, then it is in your best interest to copyright, or trademark your brand and logo. This investment of time is worth it if you want to keep your photos and descriptions protected, especially on Amazon, where many are looking to “piggy-back” or hijack the next hot-selling item. To make sure that your listing is not infringing upon another’s intellectual property rights, you can research whether or not a product is already protected by searching on uspto.gov.
What if someone has already filed an IP complaint on your Amazon account?
Any allegation of intellectual property infringement will result in suspension of your seller account by Amazon. First, you will need to contact the seller or company who has made the allegation. Many companies have taken the necessary precautions and have properly registered their IP. These companies will have systems in place to monitor for infringement, and sometimes people who are legally selling authentic products get caught in the net. In many cases, the IP rights are valid, but the allegation is not.
Many complaints arise where your account is selling a product that may appear similar to others, but those specific similarities are not sufficient enough to constitute infringement. You will likely need an attorney to demonstrate to the company that your product is unique, original, and not infringing on anyone’s IP rights. If the rights owner does not willingly retract its complaint, it is unlikely that Amazon will reinstate your selling privileges for that item.
There are many times where the complaints are baseless. Companies and manufacturers will also file IP complaints on your account if you are selling the same product, just at a lower price. These types of complaints are without merit, frivolous, and an abuse of the Amazon platform’s implemented policy. You will need to provide your invoices to Amazon that clearly demonstrate that you purchased the product from an authorised seller and that there are no IP violations whatsoever.
Many companies mistakenly allege infringement on Amazon Seller accounts. If this happens, you will need to bring to the complaining party’s attention that it is their burden to prove there was an actual infringement. For example, for Patent Infringement, there is an “All Elements Rule” that requires each claim limitation to be proven by the plaintiff who is alleging the infringement. If the company alleging the infringement cannot prove that you have met all of the requirements to prove infringement, then there is no infringement, plain and simple. Once it has been established that there was no basis for an infringement claim, the complaining party will usually agree to remove the comment. You will need to have the complaining party state to Amazon, in writing, that the issue is resolved and they are willing to withdraw their complaint. A copy of this document should be attached to your thorough plan of action along with invoices proving your item has not infringed on anyone’s IP rights.
What if you are being “bullied”?
Larger corporations take extraordinary measures to protect their intellectual property rights, and some of these efforts are unethical and illegal. This is a form of trademark bullying. These “bullies” take their preventative measures far beyond the threat of litigation. They will file suit against anyone they deem to be their competition, whether or not their allegations hold merit. Litigation requires a devotion of time, money, and effort; and many competitors do not have the resources to fight. Companies are threatening litigation not just for actual infringement, but in situations where logos may be vaguely similar. Companies are also filing suit when they discover a smaller company is selling their product but at a lower cost. The reseller is selling an authentic product, but the company does not care. They want them removed, and they will attempt to eliminate their competition at any cost whether or not they are actually committing trademark infringement. This is trademark bullying, it is unethical, and it is happening every day.
How can a company defend themselves against trademark bullying?
A company who wishes to fight against trademark bullying will first need to establish that they did not infringe on anyone’s intellectual property rights. If they are selling the same product, but at a lower cost, they will need to provide sufficiently detailed invoices that prove they are selling an authentic product. Companies do not like unauthorised resellers because they will often sell the product at an undesirable low cost. However, unless the company is a party to a Minimum Advertising Price (MAP) agreement, these companies have done nothing legally wrong as they were not obligated to sell at a higher price and the products themselves are authentic. In such a case, any threat of litigation alleging IP infringement is trademark bullying.
What if the complaint is legitimate?
Sometimes you are not aware that you are infringing on another party’s IP right. If you are caught infringing on an IP, you will need to immediately remove that listing and never sell that particular product again, unless you obtained it from an authorised reseller. Amazon will suspend your account if another party alleges there is an infringement. Your next step is to write a thorough plan of action that acknowledges your error, how you corrected the error and the changes you have made in your business practice to assure this will never happen again.
Amazon.com is an excellent resource for businesses to sell their products on a worldwide platform. However, these businesses need to protect themselves from intellectual property infringement on their products and they also need to be proactive so that they never infringe on another party’s IP rights. It takes time and hard work, but it is possible to keep your Amazon account active and maintain a successful business.