Intellectual Property Rights Appeals on Amazon

Intellectual Property rights have been covered by me and other Cascadians in other blog posts. Check them out here:

1. Registering for a Copyright to Protect your IP

2. Defending IP Infringement on Amazon

3. The Infringer and the Infringed

For this course Module, we'll look at a typical warning, and a successful ASIN and account appeal.

Warning Letter:

Hello,

We received a report from a rights owner that claims the items at the end of this email infringe their trademark.

-- Trademark number [##]

We removed the content listed at the end of this email. We may let you list this content again if we receive a retraction from the rights owner:

-- [email]

If the rights owner agrees to retract their complaint, they must send the retraction to us at [email protected]

If you believe that the reported content does not infringe the rights owner’s trademark, please email [email protected] with supporting information. This includes, but is not limited to, an invoice or Order ID.

We consider allegations of intellectual property infringement a serious matter. If we receive more complaints about your listings, we may not allow you to sell on Amazon.com.

To learn more about this policy, search for "Intellectual Property Violations" in Seller Central Help.

ASIN: [List of ASINs]
Infringement type: Trademark
Trademark number: [##]
Complaint ID: [##]

Sincerely,

Seller Performance Team
Amazon.com
http://www.amazon.com

This is the most typical type of warning - an ASIN level warning that takes down the product. You have two options based on the type of actual infringement there is:

  1. If there was not actually infringement, you have to harass the rights holder for a retraction (this can involve hiring a lawyer to send them nasty letters via certified mail) as well as send strongly worded disputes to Amazon;
  2. If there was actually infringement, you have to fix the problem. The two primary reasons for trademark infringement are unauthorized use of the brand name (the example from the appeal below) and unauthorized creation of goods labeled with the brand name (counterfeits) which are really hard to come back from. It's not a good infringement defense when you say you didn't realize those items were actually counterfeits...

Example of successful ASIN Appeal

Appeal for brand name usage in which the seller had to make the changes via Vendor Express, as changes made in Seller Central typically don't stick if you've been selling it via Vendor Express/Central:

Dear Seller Performance:

I am writing to request reinstatement of my product:

ASIN(s): [ASIN]

Complaint ID: [##]

REACTIVE ACTIONS TAKEN:

All references to any brand names have been removed from the listing. This listing is not in violation of [Brand]’s intellectual property. Please review the listing.

Thank you for the opportunity to respond to you and fix this issue with my listing.

I have filed CaseID [##] with Vendor Express and confirmed that the changes were made. Please see below for the case correspondence.

No additional mentions of [Brand]are present - references were removed from Title, Bullets, Description, and Keywords.

PROACTIVE ACTIONS:

I have proactively gone through multiple additional listings to remove any references to other brand names, per Amazon policy not to use other manufacturer’s brand names to market my products (including in my keywords).

Thank you for the opportunity to show that I take Amazon policy and intellectual property rights seriously.

Best Regards,

[Name]

Case ID XXXXXX

[insert text from case]

The most common reason for these kinds of ASIN warnings are because brands have hired outside guns to enforce their distribution rights. I have seen brands get warned and suspended from Brand Registry for abusing those rights, so Amazon is paying attention to this type of abuse against sellers.

I recently saw this description of an issue on a seller forum:

Last week I received a Utility Use Patent infringement notie from Amazon on [Brand] by Sherinian Law. They basically said work this out with Sherinian if you want to. That was it. 2 days later I received an IP claim from Sherinian Law. I sent in my receipt and standard "please retract this from my account, I did not infringe" to Amazon and never heard back...BUT...the next day my product was live and in the buy box. Weird. Then I received a 2nd Utility Use notice. I closed the listing (it is still unblocked but closed) and emailed Sherinian requesting they retract the complaint and I would not sell the product. They promptly emailed me back threatening to close our account if we did not pay a settlement amount they would be coming up with. They wanted to know how much we sold and such so they could determine a settlement amount. I responded (have been told probably should not have) that we sold 3 and had 7 left and that basically...we aren't worth going after. I submitted our receipt and after looking up their patent said we did have the right of resell. These guys are not the rights owner of [Brand] but represent the patent holder of the voice technology...or, as we refer to them, a patent troll. I haven't heard back yet and this is the 4th business day. So...three questions are on my mind here: 1) Did Amazon retract and not tell me? Should I re-email AZ asking for a retraction? 2) Does anyone have experience with Sherinianlaw? 3) It's been since Friday since he's contacted me....do I need to retain a lawyer or wait until he contacts me? Is it likely I'm in the clear?

In this case, this is a pretty typical situation - whether a law firm, or a hired company, the first step they'll often take is submitting a claim to Amazon. If Amazon agrees with them, then you'll have your listing taken down. If Amazon doesn't agree with them, you'll typically get an FYI email like this, saying, work it out amongst yourselves. In these cases, sellers are safe to refuse to respond and note that they have the right to re-sell what has been legally purchased in commerce, and that any attempts to control distribution of already sold goods is not permitted on Amazon.

Example of a successful account appeal

While I say this one is successful - and it was - it took nearly six months to finish. Basically, Amazon Legal eventually took a look at it, months after multiple follow-ups to Seller Performance, and a phone call, and finally the account was reinstated. It was very stressful for everyone involved, but we were so pleased for our client when he finally got his account back! This is the final appeal that resulted in reinstatement, after nearly a dozen prior emails to Amazon.

Dear Seller Performance,

Please find our responses to your notifications. We have separately responded and provided evidence for these four groups of issues that we are experiencing.

As a reminder, we source through Amazon Liquidation distribution partners, and sell only legitimate merchandise. Any trademark violations lodged against us are limiting the rightful distribution of product we bought and own. You can see this in our account history, where we have a broad variety of product in one or only a couple units.

We have four main buckets of issues:

1) responses received from rights holders where we’ve received a warning from Amazon;

2) no response received from rights holders where we’ve received a warning from Amazon;

3) responses received from rights holders where we have not received a warning from Amazon;

4) no response received from rights holders where we’ve not received a warning from Amazon.

responses received from rights holders where we’ve received a warning from Amazon

  1. ASIN: [ASIN]

[ASIN]

no response received from rights holders where we’ve received a warning from Amazon

  1. [email] - [ASIN] ...

responses received from rights holders where we have not received a warning from Amazon

  1. [email], [email]...

no response received from rights holders where we’ve not received a warning from Amazon

  1. [email], [email]...

We immediately engaged the rights holders when they complained, and either removed the product, or explained that we source Amazon Liquidation, for the items that we received warnings for. We requested retractions, but are aware that since many of these brands are attempting to use the infringement process to control distribution and limit liquidation sales, they were not interested in doing so.

For the ones where we were simply not informed of the issue in our Performance Notifications in Seller Central, and only learned of them upon your response, we reached out to all of them as well, and submitted the copies of that correspondence separately.

Please note that we source Amazon Liquidation and we do not make any of our own listings. Therefore, we cannot have violated trademark rights because we bought their legitimate products legally, and used existing Amazon detail pages to sell their legitimate products.

See the below images from our shipments received from Amazon Liquidations:

Please note the “from” locations - PHX6 and CAE1, which are Amazon fulfillment centers.

We always match by UPC to the brand’s listing. Any IP infringement cases against us are either a misunderstanding due to multiple other sellers listing counterfeits, or an attempt to control distribution, as can be seen in the numerous retractions received from rights’ holders. As soon as we know that a brand has problems with us selling on Amazon, regardless of whether or not it is legal for us to do so, we immediately delete the listings.

Supplier:

[Name] LLC

[Name] - President/CEO

[Full Address, Phone]
[Email]

[URL]

Invoices:

Date

Amazon Load # SO

Invoice #

4/30/2017

[##]

[##]

5/22/2017

[##]

[##]

6/01/2017

[##]

[##]

I take the health of my Amazon account seriously. I would never knowingly put it in jeopardy.

Thank you for the time and attention paid to my appeals.

Best Regards,

[Name]

Please see attached invoices.

There were a few challenges with this account:

1. Amazon hadn't actually provided warnings on all of the issues that they were being suspended for. Because they sold liquidation, they had anywhere from 1-6 warnings coming in per WEEK. And, multiple warnings that weren't anywhere in their email or Performance Notifications on Amazon. Of course, they were still held responsible for these.

2. Because they sourced via liquidation, they were provided with ASIN manifests, as per Amazon Liquidation policy. The invoices are not of sufficient detail to be accepted by Product Policy or by Intellectual Property Rights team, which is pretty darn frustrating, since it's the only invoice Amazon provides.

3. There weren't generally additional items to take pictures of to show that the items were legitimate, and therefore the dispute rationale was based upon a distribution rights claim. For other sellers, who are not doing liquidation, you can take pictures of your product and compare them to the products on the brand's website, and prove that it's a distribution rights game.

Whatever else you do; don't ignore these!

You must write to the right's holder and dispute, or express what you've done to ask them for a retraction. Then you send this information to Amazon to let them know either what you've done, or to dispute the infringement case.

If you ignore these, Amazon assumes that you don't actually care very much about it, and over time, there becomes a preponderance of weight upon your account until they close it. Not a good situation to be in.

Some issues are too tough for consultants to handle, particularly if the opposing party is using a law firm. In these cases, we recommend using Jeffrey Breloski of AtLawIP. Just tell him Rachel sent you!

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