Perspectives for seller reinstatement on Amazon.com after intellectual property rights complaints.
Amazon sellers are constantly reminded of the issues surrounding intellectual property rights as the ecommerce giant seems to be getting stricter and stricter with their enforcement of these rights.
More experienced sellers may be familiar with the appeal process when an infringement complaint is made; however, for those who are not, a quick summary of the process is as follows:
First, you will receive a performance notification from Amazon’s seller performance team: “we are contacting you because we received a report of infringement from the rights owner listed below …” The next step (as outlined in the notification), explains that in order to get your account or listing reinstated you must contact the rights owner and work with them to remove their complaint. Once the complaint is removed, Amazon is supposed to reinstate your account or listing accordingly.
Intellectual Property Rights and Warranties
Unfortunately, what makes this process difficult is that complaints are often filed in bad faith (baseless complaint), or are made under a mistaken belief that there is infringement. For example, at Amazon Sellers Lawyer, we often see complainants who allege that their intellectual property rights have been infringed because a seller on the Amazon platform is not offering the same product warranties that they or their manufacturer offers.
Unauthorized resellers are often shielded from intellectual property law by what is known as Nominative Fair Use and the First Sale Doctrine. These doctrines provide that authentic products, legally purchased in the stream of commerce are permitted to be sold by a third party so long as they are in unaltered condition and exactly as received from the manufacturer. Further, sellers are permitted to use a trademark if they are simply identifying a product by name. However, as an exception to this rule, if a “material difference” is found in the product sold by a third party, then the First Sale and Nominative Fair Use Doctrines will not apply. Traditionally, the law considers the inability of a third-party seller to offer a product with a manufacturer warranty a material difference which voids the First Sale Doctrine.
Recently, however, regarding health and beauty products, managing attorney Anthony Famularo made an interesting point. For products like lotions, and cosmetics, according to Famularo: “How could there be a material difference in the warranty? You don’t fix beauty products, you replace them.” The team at ASL put the argument to the test, and it worked. Our client was accused of intellectual property infringement for cosmetic products, and the stated basis of the complaint was our client’s inability to provide a manufacturer warranty. When our team explained Mr. Famularo’s argument to Amazon and added that our client also provides replacement products for any issues experienced by a customer, our client’s listing was ultimately reinstated.
Take the Appeal Process a Step Further Against an Unresponsive Amazon Seller
Complainants can make the appeal process even more difficult for sellers when they are unresponsive. It is often difficult to work with a rights owner to remove their complaint, but when they are unwilling to communicate it just makes matters worse. It is at these moments that it becomes more important than ever to assure that you have all the necessary documentation to prove your innocence.
We recently had success in an intellectual property matter in which the rights owner was unresponsive. However, our client had a strong relationship with its authorized distributor which ultimately played to their favor. Our client was able to get a letter from its distributor’s Vice President stating that all of their products were “sold lawfully under all applicable laws,” and that the products were “genuine and high-quality merchandise manufactured and sold by the respective brand owners …”
Although we do not know that this letter is what actually resulted in the reinstatement of our client’s listings, it seems that it was the “kicker” in a sense that Amazon may have wanted in this instance before they felt comfortable with the reinstatement. Even if this letter was just a factor in the reinstatement, it is important to realize the importance in maintaining positive business relationships.
Takeaways for Amazon Sellers:
At the end of the day, the goal for any seller is to drive profits and remain selling. However, if and when you do have an issue with the Amazon platform it is best to be prepared and to understand the perspective you are working with (or against). As illustrated by these examples, it sometimes takes more “out of the box” thinking in order to successfully get your account and or listings reinstated.