Amazon Report Infringement

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Amazon Report Infringement

This is our Amazon Report Infringement page.  For specific infringement issues, please see our Amazon Trademark Infringement, Amazon Copyright Infringement and Amazon Patent Infringement pages.

Amazon.com is the largest online retailer in the United States capturing almost half of all online sales. eBay comes in second at 7.2%, with Walmart (4.0%) Apple (3.9%) next.

The market share of the Amazon Marketplace make it a prime place for infringers to items that violate the intellectual property rights of another company.  Due to the potential for abuse, Amazon has a number of systems in place that allow trademark, copyright, and patent holders to enforce their intellectual property rights.

Intellectual property infringement on Amazon includes:

  • Using an image or photograph without permission of the rights owner to advertise a product
  • Claiming that a product is manufactured by one company, when the product is in fact from a different manufacturer
  • Selling counterfeit or “gray market” goods that were improperly taken from an authorized channel of commerce, or
  • Selling a protected item without first obtaining the proper license.

If you believe that someone is infringing on your intellectual property, you can submit a complaint directly to Amazon. Amazon takes these reports seriously because under federal law, it can be liable for intellectual property infringement if it does not properly investigate and respond to notices detailing infringement activities.  However, Amazon is notoriously slow in dealing with infringement issues likely due to the sheer volume of them.  It is generally known that Amazon will prioritize claims that come directly from an attorney.

Reporting Trademark Infringement on Amazon

Trademarks can be words, phrases, symbols, or a combination of words and imagery that serve as a brand identifier. Although you can acquire certain common law trademark rights without registering your brand, these rights are limited to a certain geographic area. Registration with the U.S. Trademark Office will grant you significantly more protection, especially if you discover that a third party is infringing your trademarks on the Amazon Marketplace, where products can be sold around the world.

Under U.S. law, registered trademark owners are required to police and enforce their trademarks and maintain quality control over how their trademarks are used. Failure to do so could result in a loss of trademark rights. Because of these requirements, it is imperative that trademark owners act proactively to protect their valuable intellectual property rights.

There are a number of ways that a trademark or brand infringement may occur in the Amazon Marketplace, including:

  • Counterfeiting occurs when the brand name or logo is placed on an item or its packaging, and the item was not created by the brand owner. Counterfeiting can occur when the trademark is identical, or extremely similar to, the original trademark.
  • Using names, language, or imagery that is confusingly similar to a particular trademark in order to confuse customers into believing they are purchasing products from a particular company.
  • Copying the trade dress, or overall impression or look and feel of a particular product’s design or packaging, so that the product is confused with that of a competitor.

Sellers are also not allowed to use the Amazon Standard Identification Number (ASIN) to list products that are not associated with a particular brand.  Although a company can register its trade dress with the U.S. Trademark Office, and enforce trade dress rights, these rights may be more difficult to enforce on Amazon’s reporting system.

Certain types of trademark infringement can occur without the seller being aware of the infringement. For example, a seller may not realize their goods are counterfeit or may not do their due diligence to ensure that their trademarks are not confusingly similar to another brand’s. However, sellers who commit unintentional infringement can still be liable for violating the brand owner’s trademark rights.

Not every use of a brand’s name or imagery amounts to trademark infringement. In the United States, there are a number of permissive uses of trademarks.  An organization generally may advertise their product as comparable to that of a competitor, such as drug stores comparing their brand of medication to medication from a name brand. However, this type of advertising is specifically not permitted on the Amazon Marketplace.

The “first sale doctrine” protects sellers of used items from potential claims of trademark infringement, as long as those items were lawfully purchased. Authentically manufactured goods that were stolen before they hit the market, otherwise known as “gray market goods” can be flagged as “inauthentic” on Amazon, but it may be difficult to completely stop this sort of sale working solely through the Amazon platform.

It is also important to note that Amazon will not investigate or respond to claims regarding violations of exclusive distribution products. While there may be breach of contract claims resulting from exclusive licensing agreements, Amazon will not assist in enforcement efforts related to this type of dispute.

A trademark or trade dress infringement notice to Amazon must include:

  • The trademark owner
  • The name of the brand
  • Whether or not the trademark is registered
  • A link to the infringing product(s) or the ASIN for each product
  • Additional information regarding the infringement
  • A statement that you have a good faith belief that the product listing violates your trademark rights, and
  • A declaration, under penalty of perjury, that the information contained in the report is accurate.

Only the trademark holder, or the authorized agent of the trademark holder may file this notice with Amazon.  We advise that you have your attorney handle the notice.

In addition to using the Amazon tools for reporting infringement, trademark owners and their agents have the opportunity to participate in Amazon’s Brand Registry tool. You can participate in the proactive brand protection program if you have a registered trademark in one of several jurisdictions, including the United States, Canada, and the European Union.  Trademarks must contain text, words, letters, or numbers to be eligible for the tool. The Brand Registration tool will not assist in protecting common law trademark rights, nor can it currently be utilized to protect trademarks that consist entirely of images.

Registering trademarks with Amazon gives brand owners enhanced search tools to seek out potential infringement cases. As there are more than 2.5 million sellers participating in the Amazon Marketplace, brands should consider taking advantage of all the tools available to help enforce their trademarks.  For trademark infringement issues on Amazon, please see our Amazon Trademark Infringement page.

Reporting Copyright Infringement on Amazon

Unlike with trademarks or patents, copyright protection is granted as soon as an original work is fixed to a tangible medium. Registration is not required to obtain certain rights, including the ability to prevent someone from using your copyrighted item. Copyright infringement occurs when a protected work is reproduced or distributed without permission from the copyright owner.

In the Amazon Marketplace, it is common for third party sellers to commit copyright infringement by:

  • Using photographs from a manufacturer’s marketing materials without permission,
  • Directly copying text from a competitor that was used to market products, or
  • Selling an item that the copyright holder has not yet put on sale.

In the United States, certain information used to advertise a product is not copyrightable, including:

  • The physical specifications of the item, such as its size, weight, or electric compatibility
  • Lists of the ingredients or components of the item
  • Generic terms describing the product, such as listing a pillow as a pillow.

Additionally, although copyright holders may control initial distribution of their materials, under the first sale doctrine they cannot prevent resale of lawfully purchased physical items.  If you believe someone is infringing your copyrights on the Amazon Marketplace, a notice can be sent directly to Amazon.  The notice must include:

  • The copyright owner name
  • Either a link to the copyrighted work, or a written description of it
  • The product URL you believe is infringing or the ASIN for each product
  • Additional information regarding the infringement
  • A statement that you have a good faith belief the product listing violates your copyright, and
  • A declaration, under penalty of perjury, that the information contained in the report is accurate.

Only the copyright holder or an authorized agent of the holder, such as a company employee or attorney, may submit this type of notice to Amazon.  Our advice is that these types of notices come from your attorney.

Pursuant to the Digital Millennium Copyright Act (DMCA), Amazon and other web hosts are immune from liability for copyright infringement under certain circumstances. Amazon enjoys the safe harbor provisions of the DMCA, so long as they timely investigate and respond to takedown notices, informing the webhost of infringing activity. Failure to comply with a takedown notice could result in copyright infringement liability, which carries monetary penalties of up to $100,000 per violation.  For further information regarding copyright infringement on Amazon, please see our Amazon Copyright Infringement page.

Reporting Patent Infringement on Amazon

Unlike with copyright or trademark claims, in order to enforce patent rights in the U.S., your invention must be registered with the Patent Office.  In the United States, both design and utility patents can be protected. Design patents protect the unique look of a patent, while utility patents protect the structure or function of a patent. Utility patents are far more common than design patents – approximately 92% of patent grants are for utility patents, while approximately 8% are granted to design patents.

A patent holder has a monopoly on the patented invention for 20 years. This patent monopoly allows the holder to prevent others from making, using, selling, and importing the claimed invention.

Patent infringement can be intentional or unintentional. Two separate inventors can independently create the same product or products that are sufficiently equivalent, but if one inventor patents the item, then he or she can prohibit the other party from utilizing the invention without a license.

In the Amazon Marketplace, the most common types of patent infringement involve:

  • Selling an item that infringes on an existing patent
  • Selling a patented product without having the proper license from the rights holder or
  • Selling cheap knockoffs designed to look like the patented invention.

A patent holder can only enforce patent rights over the claimed elements in the patent application. Aspects of an invention that are not claimed, or that are specifically disclaimed, cannot be enforced.  A patent infringement notice to Amazon should include:

  • The patent owner name
  • The patent number
  • Whether the invention is a design patent or a utility patent
  • A link to the infringing product or the ASIN for each product
  • Additional information regarding the infringement
  • A statement that you have a good faith belief the product listing violates your patent rights, and a declaration, under penalty of perjury, that the information contained in the report is accurate.

Only the patent owner or the patent owner’s attorney may file this notice with Amazon.  As discussed herein, we strongly recommend that these notices come from an attorney.  For more information about patent infringement on Amazon, please see our Amazon Patent Infringement page.

Amazon Cease and Desist Letters

Although infringement issues should be reported to Amazon, we also recommend that our client’s send a cease and desist letter directly to the infringing party.  Depending on the seriousness of the infringement, you can also request the other side pay you a certain amount for release of any infringement claims you could bring.

Many sellers in the Amazon Marketplace are as concerned about the threat of account suspension than an intellectual property lawsuit. Account suspension or deletion can happen much more quickly than a court case and could result in the other seller’s funds being frozen or seized. Moreover, many sellers rely on Amazon as their sole source of income.

Because of these reasons, many sellers prefer to receive a cease and desist letter directly from the IP owner, and are motivated to resolve any matters amicably.  Sending a cease and desist letter does not prevent you from taking further action to enforce your IP rights, if the other party fails to comply with your demands. While it is often possible to resolve matters amicably without further involvement from Amazon, this is not always the case. Sometimes it becomes necessary to take further action to ensure your IP rights are protected.

Mandour & Associates – Amazon Infringement Attorneys

We handle Amazon infringement issues on a daily basis.  If necessary, we can also file an Amazon related infringement lawsuit.  Regardless of the issue or the side of the fence that you stand on, we will aggressively defend your rights.

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For assistance with your Amazon issue, please contact us today.

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