Patent

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.  

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.