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Patent

Amazon Now Requires Separate Funds Appeal after 90 Days?

March 11, 2020 Leave a Comment

By: Lesley Hensell

In the past, Amazon automatically released the funds for most suspended sellers about 90 days after their account was blocked. That seems to be changing. Now, Amazon is telling suspended 3P sellers they can appeal separately to get their money after 90 days, and a fresh investigation will be launched. This makes it more important than ever for sellers to get their appeals right the first time.

If you’re left with more questions than answers, Riverbend can help. You can contact us here.

Filed Under: 3P, Account Health, Amazon, FBA, Fulfillment, General Tagged With: 3P, 3P seller, Amazon, Amazon FBA, Amazon seller, ASIN, Box, Copyright, Counterfeit, Deactivation, FBA, Fulfillment center, Inbound, Intellectual property violation, Inventory, IP, IP violation, Lost inventory, Patent, PL, Private Label, Product recall, Refunds, Refurbish, Refurbishment, Reimburse, Repackage, Repackaging, Shipment, Trademark, Warehouse

Wrestling with intellectual property violations on Amazon

February 9, 2020 Leave a Comment

Why did you receive this intellectual property violation? What do you do now?

By: Kayleigh Cockerill

No Amazon seller is safe, even those who sell private-label goods. Intellectual property violations can pop up for just about any listing.

You might be thinking, “Amazon is a platform for reselling; how am I violating intellectual property (IP), and why is my ASIN suppressed?  I thought I was protected under the First Sale Doctrine!” 

Unfortunately, the First Sale Doctrine no longer applies on Amazon. The First Sale Doctrine, which is part of U.S. code, states that an “individual who knowingly purchases a copy of a copyrighted work from the copyright holder receives the right to sell, display or otherwise dispose of that particular copy, notwithstanding the interests of the copyright owner.”

But because Amazon owns the platform where products are listed, it is required by law to take down products if rights owners report their intellectual property has been violated. They give the reporting party the benefit of the doubt and leave it to you, the honest, legitimately operating seller, to sort it out. 

What is an intellectual property violation, anyway?

Let’s start by identifying the different types of IP Infringement Amazon recognizes:
  1. Trademark infringement. Trademark is a report against sellers who have listed against another entity’s (possibly another seller’s) brand. There are some common mistakes sellers make that result in complaints for trademark. These include listing a generic product against a branded good, incorrectly list replacement parts using the wrong naming convention, or wrongly using the brand name of another product in your listing’s keywords or description. 
  2. Counterfeit. Counterfeit IP violations occur when a seller is offering an inauthentic product that does not match the good on the product detail page.  This is different from a standard inauthentic complaint a seller would receive from Seller Performance, since the brand owner is directly making the complaint. 
  3. Copyright infringement. These violations can occur for media, such as books or movies. But they can also occur for non-media if the rights owner claims that the listing’s images or text were unlawfully copied. Don’t upload an image to which you don’t have the rights – even if it matches your product 100 percent.
  4. Patent infringement. This is a report on a good that too closely resembles another product for which there is an existing patent. Some sellers may receive patent violations if they sourced a product from China, where many manufacturers have no qualms about using another entity’s design. Even if you purchased the violating inventory in good faith, you can’t sell goods that violate existing patents.  
ntellectual property violations
Are all IP violation reports true?

Look at  Amazon’s page on Infringement Reporting https://www.amazon.com/report/infringement. If you read the third paragraph on this web page, you will see that Amazon does not intend or allow its IP reporting process to be used to enforce distribution agreements. Amazon requires “sellers to only list against detail pages that exactly match their items,” and unless your products are incorrectly matched, you may not have done anything wrong.  

Despite these rules, rights owners frequently report sellers purely to control distribution. Whether you are certain of the problem, or you can’t identify any wrongdoing on your part, many sellers are left to wonder, “what am I to do now?”

How can I get my ASIN reinstated?

When it comes to IP issues, to be considered for reinstatement, Amazon generally wants at least one of the following: 

  1. An invoice from the brand owner/manufacturer – this legitimizes your inventory and your right to sell their goods
  2. A letter of authorization from the brand owner identifying you as a permitted seller of their products
  3. A rights owner retraction

In addition, Amazon typically asks for a Plan of Action explaining why the violation occurred, how you’ve remedied the violation, and how you will prevent similar violations in the future. 

For these kinds of appeals, persistence is key. The team that handles IP complaints oftentimes doesn’t accept even ideal documentation the first time around. Be prepared for a long battle, including multiple responses to the “notice dispute” team, as well as executive escalations.

When you have more questions than answers

Riverbend has widespread experience navigating intellectual property violations.  We often hear our clients say:

  • “I bought my inventory from a reputable seller. I know it’s not counterfeit. How do I prove it?”
  • “The reporting party’s email seems suspicious; this looks more like a competing seller, and I know they won’t retract their complaint. Why does Amazon keep asking me for the same thing?”
  • “The violation is only on my Product Policy Compliance scorecard – I didn’t receive a performance notification or an email notifying me of the person who reported me.  What now?”
  • “What if I don’t want to sell this ASIN anymore? How do I get it off my scorecard and will this violation cause my account to be suspended?”

If you’re left with more questions than answers, Riverbend can help. You can contact us here.

Filed Under: Account Health, Amazon, FBA, Fulfillment, General, Quality Control Tagged With: 3P, 3P seller, Amazon, Amazon FBA, Amazon seller, ASIN, Box, Copyright, Counterfeit, Deactivation, FBA, Fulfillment center, Inbound, Intellectual property violation, Inventory, IP, IP violation, Lost inventory, Patent, PL, Private Label, Product recall, Refunds, Refurbish, Refurbishment, Reimburse, Repackage, Repackaging, Shipment, Trademark, Warehouse

The other side of IP complaints against Amazon sellers

October 28, 2019 Leave a Comment

Many brands are clueless about the damage they do with IP complaints and fake claims

By: Lesley Hensell

The number of account suspensions for alleged intellectual property (IP) violations on Amazon continues to skyrocket. There are several reasons this is so. But perhaps one of the most disturbing of these is a complete lack of understanding by brands that they are destroying small businesses. Last week, a lawyer called me. He wanted to discuss a pending lawsuit between a past client I worked with and a brand that helped get them suspended from Amazon. As we discussed the issues in the case, I found myself being sucked into a vortex of nonsense.
The lawyer laughed. “It’s insane,” he said. “What makes a seller think they can win this kind of lawsuit against a brand?” This attorney truly believes what he was saying. His client agrees. And in my opinion, they couldn’t be more wrong.

Anatomy of a lawsuit

For the purposes of this blog, let’s call my past client Acme. Acme was a pretty good-sized seller. In addition, he had quite a few IP complaints in his scorecard, mostly for trademark infringement. In my view, these IP complaints were likely all false and an attempt by the brand owner to control distribution. My client did not sell fake goods, nor did he list on the wrong ASIN. He had high-quality sourcing.
My client listed a product we shall call Supplement. He purchased Supplement from a large distributor. The product was real, with a perfect chain of custody.
One day, the maker of Supplement received a phone call or email to their customer care department. In this communication, a buyer stated they received an expired unit of Supplement that they purchased from someone on Amazon. This buyer did not give the name of the Amazon seller who sold the expired product to them.
The maker of Supplement had brand registry. They logged into their brand registry account and promptly reported every single seller of Supplement for IP infringement/counterfeit. My client was one of those sellers, and his account was deactivated by Amazon.

The seller fights back

Ultimately, Acme was reactivated. The company is now actively selling on Amazon. But they lost significant sales on Amazon during their suspension. Acme decided to sue the brand owner of Supplement for:
  • Tortious interference. Essentially, this claim asserts that the brand owner wrongly and intentionally interfered in the business relationship between Amazon and Acme.
  • Slander. By stating that Acme was selling counterfeit merchandise, the brand owner slandered the company as a lawbreaker and someone whom nobody should engage in business with.
Here’s where the lawyer’s dismissive comments enter the picture. The attorney for Supplement brand said the entire lawsuit was ridiculous on its face and would never result in an award for Acme.
During our conversation, I pushed back.
“You do realize counterfeiting merchandise is a crime,” I said. “If Supplement had filed an IP claim for trademark or copyright infringement, that claim wouldn’t have been true, either. But calling the product counterfeit raises this to an entirely new level. It was unethical, wrong and puts Acme at risk.”
The lawyer disagreed and then blamed Amazon, rather than his client.
“Supplement had no idea that something like this could happen,” he claimed. “They were just trying to stop the problem.”

Amazon’s culpability

And there, my friend, is where Amazon’s blame lies in all this. Because the platform must enforce IP complaints, it has erred on the side of ease for brands. Simply report a problem, and the listing is closed.
Unfortunately, many brand owners don’t seem to comprehend the seriousness of making false reports. And these reports are made – in abundance – every day:
  • Brands trying to control distribution lie about IP violations
  • Brands concerned about product quality report all sellers on a listing instead of pinpointing bad actors
  • Brands rely on lawyers or services to report “bad actor” sellers on their listings, which often results in authorized sellers being reported as well
  • Brands don’t recognize storefront names of their authorized sellers and report them
  • Brands don’t bother conducting test buys and just call everything “counterfeit”
At the same time, many brand owners honestly don’t understand how enforcement works at Amazon. They likely believe – like Supplement – that their report will only result in a single ASIN being blocked in a seller’s account. They don’t realize that false reports could result in account suspension, permanent closure, destruction of inventory and permanent holding of funds by Amazon.
Should brands have control over their products on Amazon? Brands definitely have cause for concern when their products are counterfeited, sold past expiration dates, sold in terrible condition, bundled in strange combinations, etc. All of these circumstances damage brand equity and dilute value.
But at the same time, making false claims of criminal behavior is problematic. And at least a few companies like Acme are going to see if they can help the IP pendulum swing the other way.
Concerned about your account, no matter the size, we can help put your mind at ease. Call Riverbend Consulting at 877-289-1017

Filed Under: 3P, Account Health, Amazon, General Tagged With: 3P, 3P seller, Account Suspended, Amazon, Amazon FBA, Amazon seller, Amazon vendor, Appeal, Brand, Brand registry, Copyright, Counterfeit, Deactivated, Guru, Intellectual property, IP, Patent, QPD, Shipment, Suspension, Trademark, Warehouse

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