Coca-Cola was sold in every state in the US by 1900. As its popularity grew, so did the competition. Simple bottles made it easy to copy the shape and even logo of Coca-Cola drinks – they had to find a way to protect their brand. Their innovative concept – design a custom bottle and patent it, which they did in 1915. When Coca-Cola’s patents expired in 1951, they asked for trademark status, which they were then granted in 1961, because: “a 1949 study showed that less than 1% of Americans could not identify the bottle of Coke by shape alone.”
Knowing and understanding how to prevent being an infringer and how to respond to being infringed upon is key to success on Amazon. Lately, we’ve been seeing a lot of activity regarding intellectual property rights enforcement on Amazon, both for clients experiencing infringers on their IP, and clients who are being accused of infringement.
We’ve talked before about IP infringement at a high level – today, I want to go over the mechanics of actually how to deal with these issues.
Help! Help! I’m an infringer!
Alright, so Amazon thinks you’re the infringer. First question is, are you? Sometimes it’s not as straightforward as you might think.
If you’ve created a listing from scratch using images that include a trademark that isn’t yours, it could be considered infringement. So, if you find a totally awesome product, realize it’s not on Amazon, then take pictures of it and put it up on Amazon, you could potentially be found to have violated their intellectual property by posting unauthorized pictures of their trademark on Amazon. Crazy!
Another area that commonly results in claims of trademark infringement is listing on duplicate listings. For example, imagine that the brand has Brand Registry, and they have 50 curated ASINs. Then another seller creates a duplicate of an ASIN of that brand to avoid competition for the buy box, creating an unauthorized bundle, or some other policy-breaking purpose. Then you try to UPC match your product, and it matches to the nefarious seller’s duplicate ASIN, rather than the brand’s curated ASIN. They then file a claim against you for violating their IP, because they can’t tell who created the ASIN – they can only tell who is listing on it. This is not what they’re supposed to do!! Brand owners – you should file merge requests on those, not unfairly punish these sellers. Click To Tweet
How to file a merge request:
If you want to merge two identical products into one product detail page, file a report to request an investigation (o to Contact Us to file a Merge Request – Products and Inventory, Product Page Issue, Merge duplicate or split product pages). Be sure to include details that support your merge request, including:
- UPC, EAN, ISBN, or other product identifiers
- Package quality
- Color, size, fragrance, or other physical attributes
The last typical area we see for Trademark infringement is when our clients create PL replacement or OEM compatible products, then use the OEM brand name in their product description. For these situations, we recommend using the model number only. If you’re struggling with how to market these products when you can’t use the brand name, we love exploring new ways to use keywords and research alternative ways to tell your product’s story.
If you’ve copied/pasted someone else’s Amazon listing images or copywritten text, then you could be in violation and have a report successfully filed against you. Always take your own pictures of your products! If you don’t have the skill or inclination, we have a full service product photography studio just outside of Seattle, Washington or on-site lifestyle photography team in Washington or Hawaii to meet your needs.
But what if you’re accused of violating a patent? This one is tougher, because it requires careful and detailed reading of patents, and few lawyers are qualified to handle this. We can help our sellers successful dispute trademark and copyright violations, but we refer out all patent violations to the undoubtedly amazing Jeff Breloski at ATLawIP in Atlanta, Georgia. Just tell him we sent you!
Help! Help! I’m being infringed!
It is beyond frustrating to see that you’re losing the buy box on your own product that you don’t provide to anyone else, distributors, wholesalers, etc – nor do you sell at discount or closeout, and yet, someone is on your listing!
In some cases, it’s an Amazon glitch – some categories, such as Fine Jewelry, aren’t supposed to have multiple sellers for custom or unbranded jewelry, only for Jewelry from brand names that have multiple distributors or wholesale accounts.
If you’re a Jewelry seller, follow these instructions to file a report against a violating seller:
- Go to Contact Us in Seller Central
- Click “Selling on Amazon”
- Click “Other Issues”
- Choose “Report a violation”
- Click the option for “Report a violation”
- In “Contact Reason” write, “Please remove piggybacked offers and warn this seller”
- In “Please describe your issue” write: (only include purple text if applicable to your brand)
I am a seller of the _________ brand of jewelry. I am the approved Brand Registry owner of this brand. I do not wholesale this brand so there is no way that other sellers would be able to sell ________ brand product.However, the following sellers have listings on my ASINs. This is a violation of stated Jewelry Category policy, which says that jewelry products not from major national brands should not be matched by other sellers: “Sellers may not match their item listings against existing items in the Jewelry category. Sellers must create a new listing for each jewelry product they sell; matching products to existing ASINs or item detail pages created by other sellers is not allowed.” (See the Jewelry category help page here: https://www.amazon.com/gp/help/customer/display.html?ie=UTF8&nodeId=200829330.)Please remove these sellers’ piggybacked offers on my ASINs immediately. Thank you for your help.”Then, provide a list like this; include only those ASINs the seller CURRENTLY has an offer on.
Seller Name –
Seller Storefront URL –
ASINs with live offers –
- Enter your email and callback number, then click Send.
Okay, so that’s for Jewelry, but what about everyone else? For other trademark violations, here’s the form used by Cascadia for our own clients to collect the information needed to report a violation to Amazon.
Note that a test buy is required! You cannot allege infringement without having done a test buy. It’s key to make sure you have pictures of all barcodes and labels to justify your complaint.
Is it beyond aggravating to have to prove something you know to be true, as a cheating seller is violating your intellectual property and devaluing your brand? YES. It is. But, Amazon set it up this way to prevent brands from being able to easily price fix or eliminate liquidation or closeout sales on the website, since that lowers competition and increases prices for customers. There is a balance between customer friendliness and brand friendliness that Amazon is always trying to strike.
If you’re struggling to manage this process, we can help! We regularly take care of test buys and documentation for our clients. Our process is to order the products, take the pictures, file the reports, and store the samples for up to 90 days, or ship them to you if you want to keep them. You may also ask, do I really have to PAY to prove infringement on Amazon?? Yes, you do. Click To Tweet And we don’t suggest returning them all, because too high a rate of returns on your account can cause Amazon to shut down your buying account! This is an unfortunate cost of doing business on Amazon.
But I have Brand Registry! How does that help with IP infringement?
You bet it does! Eventually, if you are brand registered, and you have filed over and over and over again proving infringement, we have found that brands who consistently have issues are able to file for brand gating. However, this does require proof that it is needed to protect your brand, as Amazon again is trying to protect the competitive nature of the marketplace. But, this isn’t consistent, and requires dedication, patience, and accepting the reality that Amazon makes the rules on their marketplace.
In summary… brands can and will do what they need to do to protect their brands on Amazon. We help our branded clients boot off resellers on a regular basis. Resellers should be careful not to make themselves a target through sloppy matching or other practices not permitted by Amazon. We love to help sellers learn more and would love to help you solve your IP infringement challenges on Amazon!