IP Complaints & Amazon Account Suspensions: What are the types?
Account Reinstatement for Copyright, Trademark, Patent and other Suspensions and Claims
What is a copyright?
Copyright law, as it comes to play for Amazon sellers, generally deals with the usage of verbiage and images of some one else. There are three traditional types of copyright infringement:
- Direct Copyright Infringement: this requires the plaintiff to show that they own the copyright and that the defendant personally violated one of the plaintiff’s rights enumerated in the Copyright Act. The catch is that a third party who does not directly infringe could be held liable for secondary infringement.
- Contributory Copyright Infringement: this means an actor had knowledge of the activity and induces, causes, or materially contributes to the infringing conduct of another.
- Vicarious Liability for Copyright Infringement: this takes place when the accused enjoys a direct financial benefit from another’s [directly] infringing activity and has the right and ability to supervise the infringing activity,” but does not act to limit or halt the activity.
When congress went forward with Title II of the Digital Millennium Copyright Act, it was intended to address the uncertain questions of copyright liability in ecommerce. The DMCA offers provisions that protect internet service providers (ISPs) who may be held liable for copyright infringement.
What is a trademark?
A trademark is “any word, name, symbol or design, or any combination thereof, used in commerce to identify and distinguish the goods of one manufacturer / seller from those of another and to indicate the source of the goods.”
For example, the Arby’s hat, the M in McDonald’s, Apple’s picture of an Apple with a bite taken out of it — these are valid examples of trademarks. When you see the image, words or shapes of a known trademark you know to expect a certain quality. However, generic words and images which can be found in nature (like images of fruits on the packages of supplements) cannot be used to distinguish a certain brand from another therefore it cannot be trademarked.
IP issues surface often times when a brand makes a baseless complaint against an Amazon seller. As we know, Amazon will suspend your account almost always when a customer complains due to their “Customer Obsession” principle. There are instances where sellers are selling counterfeit products but for the most part, sellers intend on and do sell genuine products. Even those who do sell counterfeit items mostly do not mean to do so.
Trademark along with Trade Dress rights are published for sellers and customers to know of the protections they provide. It is an Amazon seller’s duty to create a logo or label that is not already protected, they must check to see if it is first. Subsequently, it is a business owner’s responsibility to protect their own products. Most sellers have difficulty navigating the USPTO, it is advised to hire an intellectual property lawyer to help guide you through getting your Amazon account reinstated.
A seller who is planning on developing a private label or logo should avoid mimicking the overall look and “dress” of brands’ products. It is a common misconception by sellers to believe that since the name is different their product does not infringe on another intellectual property. Avoid the likeness of your products language, label, color, font, and use of similar pictures. However, many trade dress accusations have been baseless in our experience and have unfortunately resulted in suspended Amazon accounts. There are companies who believe since they have trade dress protection, they have a monopoly over every portion of that protection. On the other hand, we have seen companies try to get sellers kicked off for minor similarities such as the same color or same fruit. These are valid examples of baseless complaints.
What is a patent?
Patents protect ideas such as inventions or technological processes. When dealing with patent infringement issues, it is best to work with an attorney with experience; do not deal with this alone. Patent infringement can result in much more than just an Amz account suspension. Lawsuits are costly, when a party wins a patent infringement case they can recover one hundred percent of the sale of products made on the patent holder’s rights. This can be extremely detrimental to a business of any size so it is in your best interest to speak to an intellectual property lawyer.
What should you do if your Amazon account is suspended due to an IP complaint?
First and foremost, it is essential for anyone who receives an Amazon account suspension from an IP complaint to receive advice from lawyers. Do not speak to a non-lawyer about any issue pertaining to your account, no one without a license to practice law in a Federal Court in the United States should give advice about intellectual property issues. Any allegation of intellectual property infringement will likely result in the suspension of your listings or account because Amazon wants to avoid liability on their end. You need to get in contact with the party that has asserted the complaint, many times people who are legally selling products get hit with baseless complaints although the IP rights are valid. You will need an attorney to help you get your account reinstated by demonstrating that your product is unique, original and not infringing on anyone’s IP rights. If the rights owner refuses to retract his or her complaint it is unlikely that Amazon will reinstate your selling privileges for that item.
Many brands and companies accuse sellers with baseless complaints. Sellers must know that it is now the complaining party’s burden to prove that there was an infringement, they must bring this to attention. For patent infringement, there is an “All Elements Rule” which requires each limitation to be specified and demonstrated by the party issuing a complaint. Once there is no infringement detected, the party will likely remove the complaint altogether. Thus, you will need to issue a statement to Amazon that says that the complaining party has withdrawn their complaint. Their withdrawal should be attached to your Plan of Action.
When an IP Complaint is Withdrawn
Once the complaint has been removed, you may proceed with your plan of action, which should include:
Cause of the Issue
• An assertion that you only sell 100 percent authentic quality items through your Amazon account. However, a rights owner complaint was mistakenly filed on your account.
• That you have reached out to the complainant and they have since acknowledged and removed their complaint.
Corrective Actions
• A demonstration that you have reviewed policy compliance and have already taken actions to correct this issue and ensure it never reoccurs.
• You have contacted the party directly to resolve the complaint.
• Provide a correspondence that shows the complainant admitting to their mistaken IP allegation.
• Provide the contact information of your authorized distributor and urge them to call them to ensure all them that all your products are 100 percent authentic and not in violation of any IP rights.
Preventative Measures
• That you’ve dedicated team members to specialize in police and compliance specifically for the Amazon platform.
• All inventory is reviewed upon arrival to ensure they match the listings 100 percent.
• That you only conduct business with your authorized distributors who can supply documentation demonstrate that all items are 100 percent authentic and not in violation of any person’s intellectual property rights.
What Happens if they Refuse to Withdraw?
In such a case, you should immediately call us for a free consultation: 1-877-9-SELLER.
Written by Vin and Noam of Amazon Sellers Lawyer || Rosenbaum Famularo, PC.