What’s Yours Is Not Mine: Defending Intellectual Property Infringement on Amazon

On January 28, 2016, Amazon Consultant, Kelly Johnston, spoke at the Telegram Sellers Dinner in New York City. Following is Part 1 of her presentation:

For the purpose of this article, I will define private label as: a product that you have iterated and refined based on a product already in the marketplace. This new version is trademarked by you, and bears a physical mark with your logo and trademark. It is not a generic item you have purchased and placed in generic packaging with a sticker.

So let’s talk infringement.  The three areas you are most likely to encounter on Amazon (or online) are:

• Copyright
• Trademark
• Patent

Patent Infringement is the least common form enforced on Amazon, primarily due to the fact that Amazon tends to require evidence of a court awarding the plaintiff a decision in their favor. Since this is not as common as the other types of infringement, I will focus on copyright and trademark.

Copyright Infringement

In the United States, copyright infringement is managed under the Digital Millennium Copyright Act. The DMCA covers books, music, video, DVD’s, and imagery. Imagery is the area most likely for Sellers to have infringed or been infringed upon. It is tempting, and much too easy, to take a well-produced image from a manufacturer, competitor, or other source to help market your items. DO NOT DO THIS! Not only is it unfair to the producer of the image, it is stealing from whomever paid them to produce it. Practice good stewardship by spending the time and money to create your own images, thereby ensuring brand uniqueness.

If your images have been used without permission, filing a complaint (also called a DMCA notice) is fairly uncomplicated. Click here for the basic submission form.

Caveat: I am not a lawyer and, if you aren’t either, you may wish to seek legal counsel before acting on a suspected infringement on Amazon.

DMCA notices contain three important elements:

• a declaration of your rights to the image,
• specific links where the infringement can be found and who is infringing, and
• a penalty of perjury statement.

An important note about images- sometimes it can be difficult to discern who actually uploaded the infringing content. In cases where you cannot identify the Seller, simply be ultra-specific about where the image is and, if multiple images can be found at the link, which ones Amazon needs to pay attention to for removal.

Once you have submitted a DMCA notice that is complete and contains the above, it is a generally a speedy resolution on Amazon’s part. You may wonder what happens to the Seller(s) Amazon investigates as part of a DMCA notice. Unfortunately, you are going to have to be content with wondering. For security purposes, and due to the proprietary nature of the business, Amazon cannot and will not release the results of their investigations.

Trademark Infringement

Filing a trademark complaint requires the same elements that a DMCA notice does – declaration of rights, location of the alleged infringement, who is committing the alleged infringement, and a penalty of perjury statement. However, there is one additional key element I am certain has caused you no small amount of frustration and expense. Say it with me – the test buy; actually purchasing from the competitor who is listing on your ASIN. Amazon requires this because 1) Amazon does not handle the product, and 2) Amazon does not care about your trademark. Amazon expects you to do your own work and manage it.

When performing a test buy, if the Seller who is listing your item cancels the order, you should absolutely report it to Amazon. Clearly explain why you were attempting the purchase, provide the canceled order ID, and Amazon will investigate the Seller.

Assuming you have made the test buy and the order is fulfilled without incident, now what? Specificity. The more specific you are, the better. I recommend the following:

• Take photos of every side of the package the item came in
• Take photos from every applicable angle of the product itself
• Take photos of any materials such as manuals, cables, etc.
• Clearly describe how the test buy differs from yours (i.e. color, features, manuals, trademarks, packaging, et cetera).

Everything that is different should be noted in clear, concise language. As long as the required elements are presented, you can expect a swift resolution.

I’m sharing this information because failing to close these risk points and acknowledging the power they can have over your selling future is akin to walking away from the store with the keys in the lock.

Close the gaps before they close you.

Cascadia Seller Solutions excels in helping you do exactly that; we identify, explain, and work with you to seal the gaps in your risk management processes. Whether it’s refining your operations, identifying regulatory laws applicable to your products, or helping you protect your brand, Cascadia makes risk management easier to integrate into your business. Contact us today!