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Infringement

Agents in Amazon Brand Registry should tread carefully

December 18, 2020 Leave a Comment

Don’t file IP complaints if your seller account will benefit

By: Lesley Hensell

Third-party sellers who have close relationships with brands may be putting themselves at risk, if they are using Amazon Brand Registry in a way that Amazon doesn’t like, causing them to file an infringement report.

A recent review of Amazon’s Code of Conduct for sellers reveals this tidbit: Filing Infringement Reports as an Agent or Brand Protection Agency

Amazon understands that many brands may choose to have brand protection agencies or agents report intellectual property infringement on their behalf and accepts submissions from authorized agents.

However, Amazon does not permit individuals with active selling accounts to file infringement notices as an agent of a brand when the filing of those notices could benefit their own selling account (through removing competing listings, for example). Any sellers filing notices as an agent to benefit their own status as a seller may have their selling account terminated.

This is one of those easy-to-overlook bits and pieces of policy that can go completely unnoticed. It also attempts to draw a bright line in situations where sellers may be doing absolutely nothing wrong – but Amazon doesn’t care.

 

So what’s going on here?

In some cases, brand owners choose a third-party seller as their preferred reseller on Amazon.com. These brand owners may not want to be involved in the day-to-day mechanics of selling on the platform. They simply want a familiar storefront they trust to be the face of their products on Amazon.

Brand owners have ownership of their Amazon Brand Registry, but they can allow others to act as “agents.” These agents can take actions such as editing listings, uploading photos, and reporting counterfeiters and other infringers.

Amazon has decided that it’s fine to use an agent to report intellectual property violations – such as those for counterfeit, trademark, copyright and patent. But the reporting party cannot be a third-party seller who is also selling on the ASIN in question.

Amazon Brand Registry

 

Wow, that’s confusing

Frankly, this makes little to no sense. Why?

Well, in many cases, brand owners big and small also sell their own products on Amazon.com. They use brand registry to manage their listings and report infringers.

So Amazon has decided that a brand owner who sells on a specific ASIN can report infringers on that ASIN. But third-party sellers who are trusted agents of the brand cannot. In the end, the effect is the exact same.

I can hazard one guess as to this hazy enforcement decision. If a brand files false infringement reports, the brand can lose its selling privileges (if it’s also a third-party seller) or its brand registry privileges. Perhaps Amazon doesn’t have an adequate enforcement mechanism to specifically punish an agent that goes rogue and files false reports.

Yet, if that agent is a third-party seller, wouldn’t it be easy enough to suspend their account? Inquiring minds want to know.

Where do we go from here?

If you represent a brand on Amazon and manage their ABR as an agent, you have a few options:

  1. When you spot infringers on the brand’s listings, report it to the brand. They can report it from there.
  2. Hire an agency or law firm to file your ABR infringement reports. If they are also an agent on ABR, Amazon will not know the genesis of the reports about infringement.
  3. Most importantly, only file genuine infringement reports. ABR is not a cudgel to be used for mass actions against competing sellers. It should only be used to knock others off of listings in true cases of infringement. Do test buys. Research. Inspect the products you receive. Be responsible. Brand Registry is not there to limit competition or distribution. It’s there to keep bad actors off of your listings.

Have questions? Ask Riverbend Consulting or give us a call! 877-289-1017


Lesley Hensell

Lesley is co-founder and co-owner of Riverbend Consulting, where she oversees the firm's client services team. She has personally helped hundreds of third-party sellers get their accounts and ASINs back up and running. Lesley leverages two decades as a small business consultant to advise clients on profitability and operational performance. She has been an Amazon seller for almost a decade, thanks to her boys (18 and 13) who do most of the heavy lifting.

Filed Under: Account Health, Amazon, Amazon Appeal, Amazon seller, Amazon Seller Central, Appeal, Customer Serivce, General, Linked Account, Seller Central, Seller Fulfilled, Seller Performance, Seller Support Tagged With: 3P, ABR, Agent, Amazon, Amazon account, Amazon seller, Amazon Seller Central, Brand registry, Infringement, Intellectual property, IP

Amazon Infringement: Design Patents, Retractions, and more

April 18, 2019 Leave a Comment

Sorry sellers, retractions aren’t enough

Amazon wants invoices to disprove design patent infringement, blocks accounts with retracted IP claims

Infringement claims on Amazon have grown increasingly frustrating over the past year. This has reached a deafening crescendo over the last few weeks, with our clients being victimized by nonsensical requests and account blocks – even after doing exactly what Amazon asked.

Infringement claim Amazon

First, a word about infringement claims.

Also known as intellectual property (IP) complaints, infringement claims occur when a brand owner (or random party/black hat competitor) says a listing should be taken down because of:

  • IP infringement/counterfeit – the brand owner says the seller is listing fakes.
  • Trademark infringement – the brand owner says the seller is abusing a trademark, which could mean that terms or trade dress are being used in violation of their trademarked words or images.
  • Copyright infringement – the brand owner says the seller is using their text or images in the listing or using their branded terms in the listing or its back-end keywords.
  • Utility patent infringement – the brand owner claims to own a patent around the use of a product, and the seller is violating that patent by selling a product that does or claims to do the same.
  • Design patent infringement – the brand owner says a competing product looks too similar to their patented design.

Each of those five common infringement types deserves its own blog. But for this particular piece, we are talking about what’s going on at Amazon right now.

It’s difficult to choose which recent development is most stunning. Most likely, it’s the one affecting your business right now.

  1. Amazon is refusing to reactivate accounts, even after IP complaints are retracted. This is maddening for sellers whose accounts were deactivated specifically because of the IP complaint a brand (or multiple brands) made against them. For years now, Amazon has told sellers to reach out to the brand owner and work out a solution. Then, if the brand owner retracted the complaint, everyone could move forward in peace. Now, instead of accepting retractions, Amazon is asking for the same information – over and over and over again.
  2. Amazon is asking for invoices or brand authorization letters to disprove design or utility patent infringement. This is ridiculous on its face. A seller accused of patent infringement is not selling the ASIN for which the brand owner has brand registry. The seller is offering a competing item, and the brand owner is claiming that the competing item is violating their patent. How would it make any sense to provide invoices for the competing items to disprove a patent claim? (Easy answer: it wouldn’t.)
  3. Amazon is not responding to emails about deactivated accounts with IP claims – for weeks or months. These are not always blocked accounts. They are accounts where Amazon has specifically requested information, and the seller is responding with that information. The wait time for a response is growing each week, and the escalations addresses that typically push toward resolution are not bothering to read and understand the underlying problems with Amazon’s enforcement approach. It takes a virtual screed to get them to pay attention.

Something is very broken around IP claims. And for the sake of sellers, we hope Amazon fixes it fast.

If I need to appeal an Amazon infringement claim, how should I go about it?

If you need help with an IP issue, give us a call at (855)-283-4247 or contact us on our website. We will escalate to the right people and work toward fixing your issue – with the persistence you need.

Filed Under: Amazon, General, Seller Performance, Vendor Tagged With: Amazon, Claims, Copyright infringement, Infringement, IP

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