Travis Stockman from Amazon Sellers Lawyer talks about what happens when sellers on Amazon get allegations of intellectual property infringement and suffer from Amazon complaints.
The majority of Amazon complaints are general intellectual property complaints that don’t specify copyright or trademark. If Amazon finds any consideration of IP, the seller is taken down without the complaint being vetted. They are usually an attempt by the right’s owner to enforce who can and can’t sell the product. When you create the listing you are able to use the images and description because you are joining an existing listing that the right’s owner created. This usually doesn’t count as an intellectual property issue.
What often happens is when someone gets a complaint, the Amazon Seller’s Office contacts the right’s owner and it turns out to be about distribution. When this correspondence is shown to Amazon’s Notice Dispute Team, the listing is often reinstated right away.
Let’s say I own ‘Mike’s Magic Mugs’ and I want to be the only person selling on Amazon. But someone else starts selling the same product on Amazon. So I make an Amazon Complaint and say that I own the IP on the mug. This is actually a distribution issue and not an intellectual property issue.
In the US there exists the First Right’s Law. This states that if you have this original product, in its original packaging, unopened, and with everything that came with it, you have the right to resell it. There needs to be something different about the product in order for this not be about distribution.
Many complaints are based on the fact that the warranty is not included with the product. If there is a discrepancy between the products, such as the warranty is not valid if you are not an authorized seller, then that can create a difference that could lead to an IP issue. However, it would need to be proven.
Amazon has no ‘gatekeeper’ that evaluates IP complaints. Therefore a lot of complaints that have little basis get though and having a lawyer helps with that.
The person who creates the listing has, according to Amazon policy, granted everybody who joins that listing the right to use the image and description. That does not constitute copyright infringement. If you create your own listing and use that image and that description then that becomes copyright infringement.
Sometimes in a listing, there are mentions of another product due to that product being compatible. This does not constitute trademark infringement. An example would be printer ink cartridges or toner that are compatible with HP printers.
If however, a listing of a pair of unbranded trainers wanted to increase ranking and views by using a reference to Nike, this would constitute a trademark infringement. If a trademark is used for descriptive use, that is not trademark infringement. But if it used as a commercial use, such as to increase ranking, that is trademark infringement.
To dispute a claim of patent infringement, there need to be clear differences between the two patents. If it is a utility patent, purely talking about the functionality, you would need to find something that shows the functionality is different and that makes it a different product.
The most frequent Amazon complaints involving patents occurs when a rights owner files an Amazon complaint. Then, all members of that listing receive the complaint and not just the brand owner. In this case, Travis will talk to the rights owner and point out that the seller did not create the product and only joined a pre-existing listing. Often the complaint against that seller will be retracted. However, sometimes with a condition such as selling their product or using a different listing.
Let’s say there are two candleholders. One is a frosted, circular shaped glass and one is a square shaped glass with a metal handle. If there was a design patent claim from one of the creators of the candleholder to the other, there would be no justification for that claim because the designs are clearly different.
If there was a utility patent for a glass container for a candle. These two products perform the same thing and there could be a claim. But there needs to be a detailed analysis of what the patents claim and analysis of the difference between the two products.
First, contact the rights owner. Even if you know it’s a stretch or the rights owner doesn’t reply. You need to be able to show Amazon’s appeal team that you’ve tried to resolve this with the rights owner. Contact the notice dispute team and show evidence that you tried to reach out to the rights owner and they didn’t respond. It is also useful to show invoices of where you bought the product to show you are an authorized seller of the product. You need to make it clear that without Amazon’s intervention this issue can’t be resolved.
If you contact the notice dispute team and show that you have bought the product from a legitimate source and that you have tried to contact the right’s owner, and have the right to sell this product under the First Rights Law, Amazon will likely reinstate the listing. However, if the seller hasn’t been able to resolve the issue with the right’s owner, it is possible that they will put in another complaint against them.
If your appeal to Notice Dispute fails then the next step is to contact Jeff Bezos’s escalation team. They can only be contacted if Amazon has failed in some way and you can show evidence of this.
If you have contacted the rights owner, they respond and the claim is legitimate, you now have to see if you can come to some agreement with the rights owner. It is respectful to remove the product from sale until the negotiation with the right’s owner has been resolved.
The most important thing is to take action and keep records.