Infringement

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.

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.