What is an Amazon Infringement?

An Amazon infringement is a common cause of Seller account suspensions. I am going to explain how to deal with an Amazon Trademark infringement or an Amazon Copyright infringement to get your account reactivated.

I’ve previously covered what sellers should do if they receive an Amazon inauthentic complaint which is not an intellectual property issue.

Amazon Trademark Infringement

First of all, what is a trademark? For practical purposes, trademarks deal with product names, logos and slogans. A product name such as Big Mac, a logo such as the McDonalds golden arches and slogans like “I’m Lovin’ It” would all be examples of trademarks.

You can search the Trademark Database to see a directory of live and dead trademarks.

For example, if you wanted to call your new product “Lululemon” you would search the database. Of course, “Lululemon” is a major athletic leisure brand and protected under various trademarks. You would see the following results for your Trademark search:

As you can see there are several trademarks under “Lululemon.” Some are for “Lululemon Athletica” and others are for “Lululemon Align.”

Some of the trademarks are for the wording and some are for the logo and wording. In the search results there are glass cleaners and other products that are trademarked with Lululemon. These products have nothing to do with yoga or fashion and subsequently having the same name does not create any confusion in the marketplace. If a company wanted to use the same name for a line of athletic shoes, it would be rejected.

Not all wording and images can be trademarked. Generic wording cannot be trademarked. For example, if your company name was “Best Shoes” it would not be approved by the USPTO because you would be preventing other sellers from describing their product.

What Can’t Be Trademarked?

Similarly, items that occur in nature cannot be trademarked. This is a common source of complaints between Amazon sellers. For example, a company uses a drawing of a cloud to sell a type of pillow and the cloud is featured on the packaging. Another company also uses a cloud to promote the soft pillow. Since a cloud occurs in nature, this would generally not be considered a trademark violation. Commonly, online beauty stores have issues with the use of fruits or vegetables on their packaging or listing.

Trademark Infringements in Amazon Listings

Often times, the Trademark infringement is in your product listing. For example, a brand owner might take issue with you using their trademark in your product listing. Usually, this type of case revolves around an accessory such as a phone case that is “compatible with” a particular brand name. Technically, under the Fair Use doctrine you can use the trademark as long as you don’t make it look like their is any affiliation or endorsement by the brand.

In the product listing above, the Iphone 12 trademark is used. I do not know whether the seller has permission to use the trademark or not. Sometimes, companies like Apple (they are aggressive) will file a complaint for using their trademark in a product listing especially if the company has a competing product. For example, Apple might not care about phone cases but they might file trademark infringements against Iphone cables because that is a product they sell.

Who Filed the Amazon Trademark Infringement?

Once you receive an Amazon Trademark infringement you should determine who filed the infringement.

Commonly, there are three different parties that might file the infringement:

1. The actual rights holder. For example, a company like Nike or Disney.
2. A company that has been hired to guard IP. For example, BrandShield.
3. Amazon itself.

Amazon will give you an email of the complainant and often give you a number that is the serial number of the trademark that you violated. You can search the USPTO database to find the trademark.

Complainants will not necessarily answer your emails. After all, they most likely are benefitting from your Amazon suspension and they are in no hurry to see your Seller account reactivated. Sometimes you need to search LinkedIn or other business databases to find other points of contact including phone numbers.

Hire An Amazon Attorney

An Amazon Trademark infringement is a serious complaint. You can have your account suspended and you could be subject to a lawsuit. Since this is a legal issue, you should hire an attorney.

Most commonly, you need to get a retraction from the complainant in order to have your appeal succeed. Often times, a company will have hired a lawyer that you will have to deal with directly. This is one of the major reasons that you should hire an Amazon attorney to deal with IP complaints.

Your Amazon attorney will do the following:

1. The attorney investigates the case and gives you advice about the merits of the case.
2. If the complaint is baseless, the attorney drafts an opinion letter. This letter is sent to the complainant.
3. Sometimes, the complainant needs to be aware of their legal liabilities should they refuse to withdraw the complaint. For example, every day that your Amazon store is closed due to a baseless complaint is lost revenue.
4. You receive a retraction letter.

A lot of suspended Amazon sellers mistakenly believe that the burden of proof falls on their shoulders. Just because you were suspended from the Amazon platform, does not mean that the burden of proof falls on your shoulders. In fact, it is the complainant who needs to prove that their IP was infringed upon. One way to think of this is that in the “Amazon court of law,” the burden of proof is on your shoulders. However, in a “real” court of law, the burden of proof is on the complainant.

The Retraction Letter

The retraction letter must be in writing and should be addressed to Amazon. In the retraction letter, the seller will state the issue has been resolved and that the seller has retracted the complaint. A copy of the retraction letter will be attached to your Appeal.

You also want the complainant to send an email to Amazon from the same email that was used to file the complaint. This email will include the following information:

1. Name of the brand that made the complaint
2. Name of your account or storefront
3. Your Seller ID

It is important that you are CC’d on this email. You always want more evidence as Amazon also seems to want more documentation.

Amazon Copyright Infringement

An Amazon copyright infringement usually revolves around the photos or text in your product listing. You cannot copy the text from other listings. Oftentimes, sellers will try to use phrases and ad copy from successful competitors. You must be original in your ad copy. Similarly, sellers will sometimes copy product images from competitors and trigger an Amazon infringement. Finally, branded terms in back end keywords can trigger a copyright violation.

Copyrighted Product Images

Many Amazon sellers receive product images directly from the manufacturer. It is always advised to receive written authorization to use manufacturer’s images. Amazon may require this authorization letter as part of your appeal.

Many sellers assume that the images provided by the manufacturer are suitable for an Amazon listing. Many manufacturers are unaware that their product images contain copyrighted material.

Recently, I had a case where a client used a product image that had an Iphone in the image. Although, the client’s product was a private label mount, the images sent from the manufacturer featured the Iphone. However, Iphone images are protected by copyright. Subsequently, the client had to remove those product images and create product images with a generic phone.

As an Amazon seller, you cannot create the impression that your product is somehow affiliated with Apple. This is a clear trademark violation.

Sellers can avoid trademark and copyright infringements in product photos by blurring out logos or distinctive features. For example, this product image below uses a phone that could be any brand. This is the type of product image that will not trigger an Amazon copyright infringement.

DMCA Counter Notice

The most important law that pertains to copyright on Amazon is the Digital Millennium Copyright Act (DMCA). The DMCA enables you to file a counter notice. Effectively, the complainant has to file a lawsuit in federal court or the complaint is automatically retracted. The complaint is removed from your Amazon account.

The downside risk of a counter notice is that it is possible that a brand may proceed with litigation against you.

Copyrighted Text

The wording or phrasing in a product listing is protected by copyright. Some sellers spend a lot of money on copyrighters and testing the success of ad copy. Copyright protects these sellers from having their well written listings copied by competitors.

A lot of times if you put your Amazon listing text through a basic plagiarism checker you will see that your text is similar to other listings. I’ve had clients who hired ad copy writers only to find that a lot of phrases were swiped from other listings.

Amazon Copyright Appeal

The appeal process for an Amazon copyright infringement is fairly straight forward. You remove the text or images that caused the infringement. However, even if you delete copyrighted images, you will still need to go through the Appeals process to have your Seller account reinstated.

Most of the work is actually determining what is the exact violation. Amazon will not tell you whether the copyright infringement was in the photo or text. You will need to a thorough analysis of your listing.

Conclusion

I hope this article helps explain the basics of Amazon trademark infringements and Amazon copyright infringements.

Please contact us for a free consultation if you have any questions about your particular suspension.