Trademark infringement occurs when 3rd party sellers use unauthorized & improper business names identical/similar to that used by another seller.
If another seller uses your trademark or something similar to your trademark in a way that confuses the buyer, there may be trademark infringement.
The test is known as “likelihood of confusion.” This is when the consumers viewing the mark would probably assume that the product or service it represents is associated with the source of a different product or service.”
A trademark is a symbol, phrase, or other device that distinguishes ownership of a product or service. A trademark often stands as a mark of quality. People that buy products from Amazon 3rd party sellers often rely on trademarks when making purchases. When they see a trademark, buyers know they are getting quality goods.
If you have a case involving trademark infringement on Amazon:
Federal law governs trademarks. Trademarks are described in section 32(1) of the Lanham Act.
Section § 1125(a) of the Lanham Act states that merchant sellers shall be liable in a civil action to any person that is likely to be damaged by the Amazon marketplace seller or Amazon marketplace reseller’s trademark infringement. To bring an action under the law, actual damages need not be shown. You do not have to show that you actually lost money. To bring a case for trademark infringement, you must merely show the likelihood of damages. In determining ‘confusion’ under the Lanham Act, the courts use something called the Polaroid test. The Polaroid test was created by a court in a case called Polaroid Corp. v. Polara Electronics Corp.
The 8 factors of the Polaroid test include:
You don’t need to show all eight factors. Courts focus on the potential to confuse consumers.
Strength of plaintiff's mark.
The similarity of uses.
Proximity of the products.
Defendant's reason for using products.
Prior owner expands into domain of other.
Quality of junior user's product.
Sophistication of consumers.
Trademark Complaints on Amazon
If you receive a trademark complaint, you may be a little bit confused.. What’s different about these is that you don’t receive a rights owner complaint. This automatically means that a retraction isn’t needed. Many sellers aren’t sure what this notification means, so they’ll just ignore it.
We do not suggest you ignore these.
What you need to do:
If you’re the creator of the listing and you’re using a trademarked term incorrectly, revise the language.
If you’re joining a pre-existing listing, vet the listings before joining them. Say that you’re about to join the Victoria’s Secret listing for Victoria’s Secret bags and the listing was created by another seller, we do not suggest you join that duplicate listing because it’s incorrectly using the trademarked term ‘Victoria’s Secret’.
What if I get sued or sue someone else for false advertising based upon use of a trademark?
There are 3 potential remedies that can be ordered in a false advertising case:
Injunctive Relief: When a court orders you to do or to stop doing something. It may be granted when the person suing demonstrates confusion because of false or deceptive advertising or if irreparable harm has been inflicted.
Corrective Advertising: It is virtually impossible to prove that sales will be damaged. The party suing only has to establish that there’s a relationship between a decline in its sales and a competitor’s fake advertising.
Damages: To collect damages, the party suing has to show that consumers were actually deceived. S/he may also have to show that the defendant used false advertising for products not as described and in bad faith.