Amazon Trademark Infringement Claims
As a seller on Amazon.com you are subject to comply with intellectual property laws, which includes trademark and copyright. In addition, as a third party retail site Amazon must take actions reasonably necessary to prevent trademark or copyright infringement. Therefore, it offers its store owners the ability to submit claims of trademark or copyright infringement via an online form. However, sometimes the Amazon trademark or copyright infringement claims submitted lack legal basis. So, what can you do?
Someone Is Infringing My Trademark
Trademark infringement is where another seller is using your name (or a similar name) without your authorization on competing goods/services. This typically occurs on Amazon under two premises:
- The item is a false reproduction of your goods
- The seller is using your name without your authorization
In either case you will want to report the infringement to Amazon using their online form. In addition, it helps to have a federally registered trademark, which gives you nationwide protection of the name.
Someone is Selling Unlawful Reproductions on Amazon
- Blatant copying. This is usually done by someone trying to profit unfairly from your brand. This can occur if a seller recreates a product that is similar and mimics your overall appearance or uses a name that is confusingly similar.
- Incorrect ASIN. This can occur on Amazon if another seller tries to list their product using your ASIN. This often occurs where two sellers use the same manufacturer under a non-exclusive license to create a product. One seller may try to list the item under the same listing, however, the seller has branded the product under their unique brand name. Thus, once the second seller attempts to list the product the brand of the other owner is attached to their product via the ASIN. However, since the trademark should not be associated with the product this is trademark infringement. While it may have been accidental, this is still infringement, and should be addressed with Amazon.
Someone is Using My Name on Amazon
- Selling a different product (but similar industry). If you own a valid trademark it protects you in regard to any confusingly similar names on any confusingly similar products. For example, FURRY tennis balls would be similar to FEREE tennis rackets.
- Be careful where someone is using your name to describe YOUR product. If you see someone selling your FURRY tennis balls on Amazon they could be legitimately selling something they purchased from you. If they are selling your actual product odds are they are not infringing.
Someone Submitted a False Claim of Trademark Infringement Against Me
Responding to a false claim of trademark infringement is more difficult than reporting a false claim of copyright infringement. The reason for this is that the Copyright Act lays out rules for responding whereas the Trademark Act does not. Thus, it is up to the third party retailer to determine the best course of action. Amazon does a good job of reviewing the claims. Therefore, if your items are removed there is a good chance there may have been a legitimate claim. But that does not always mean that you are not in the right.
- Trademark law is based on prior use. If you were using the name first, odds are you are in the right.
- Trademarks are based on similarity of goods/services. If the use isn’t related you may not be infringing.
- A federal registration is your best friend. If you own the federal registration it will be very difficult for them to claim they have superior rights.
- You may need to get the opposing party to withdraw their complaint. This is difficult, for obvious reasons.
Amazon Copyright Infringement Claims
Someone Is Infringing My Copyright
Copyright infringement is the unauthorized use of another’s artistic work (pictures, books, music). This typically occurs on Amazon under a few different scenarios:
- The seller is selling a copyrighted item without my permission
- The seller copied my text
- The seller copied my pictures
Someone is Selling My Artistic Works
This one is tricky. Typically, if they don’t have your permission to sell your pictures, books, music, you can submit a copyright infringement claim to Amazon. However, if they legitimately purchased your book and are now reselling it, then they are protected under the First Sale Doctrine. Therefore, this violation normally occurs if they are trying to sell a “brand new” version of your picture, book, music and you never gave them permission.
Someone Stole My Pictures or Written Material
If you created the pictures (and didn’t get them off of google images) then odds are the seller that is using your images is infringing your artistic work. Same with text, if you created the text and didn’t get them from another source, then the seller is most likely infringing your written materials.
Someone Submitted a False Claim of Copyright Infringement Against Me
The Digital Millennium Copyright Act (DMCA) provides online retailers with “instructions” on how to respond to claims of copyright infringement. Essentially, they will remove the goods that are alleged to infringe. However, if the claim is false, the person who receives the claim may respond with a counter-notice in order to get their goods re-listed. Amazon is then given 14 business days from the date of the counter-notice to re-list the goods, unless they get notification of a pending lawsuit.
- Make sure the claims are false. By submitting a counter-notification you consent to the jurisdiction of Federal District Court for the judicial district in which your address is located.
Amazon Trademark or Copyright Infringement Complaints or Counter-notices
Any Amazon trademark or copyright infringement complaints or counter-notices should be submitted through Amazon’s infringement report page. If you need assistance with your Amazon trademark or copyright infringement matter feel free to give us a call at the number above for a free consultation.