We recently had a seller come to us with a design patent infringement dispute. Sometimes design patent disputes are very complex and this makes it extremely challenging to appeal through Amazon.
Design patents are only considered to be infringed upon if our clients’ design is so similar to the design of the patent, that a consumer who is familiar with what’s called “prior art” is unable to distinguish between the two products.
Usually for our clients, we are able to identify the differences between the design patent and our clients’ design, such that we can overcome any claim of design patent infringement.
For a design patent infringement, Amazon doesn’t use what the courts use in their precedent; they use the Egyptian goddess test. This is an essentially older, outdated test. Basically, what Amazon wants to know is whether an ordinary observer can differentiate between the two products.
In our experience, there’s usually some unique artwork or something distinctive to separate the two items. This object was very similar, the only difference was that our client had unique artwork on the top of the lunchbox. This unique artwork was what we brought to Amazon’s attention in our appeal.
How can an ordinary consumer be confused by the two items when this one comes with its own protected original art? In addition, there were a few variations, such as the shape of the lunchbox and an extra pocket.
Ultimately, we won this design patent infringement case; our client’s account was reinstated.
Receiving a design patent suspension is never the end of the world. A seller must take a step back and investigate: Why was my account suspended? What can I do to correct the problem? Can I do this on my own, or should I reach out to an attorney?