Intellectual Property Complaints
As an Amazon Seller, it is important to be aware that there has recently been an increase in Amazon complaints relating to intellectual property. If a seller sees that you are selling a similar product as them, they may believe it is a counterfeit product and file a complaint. Manufacturers and larger brand name companies have been filing more complaints on other seller’s accounts. If they see you are selling a brand name product at a cheaper price than they are, chances are they will file an Intellectual Property complaint against you.
Why is There an Increase in Intellectual Property Complaints for Amazon Sellers?
Amazon.com does not monitor their platform for IP infringement. Unless an infringement is specifically brought to their attention, Amazon will provide continued access to their sellers. However, Amazon does allow customers and rights owners to have the ability to file a complaint if a product seems inauthentic or counterfeit due to the poor quality of the product. Once Amazon is notified, they will remove the listings and suspend the account holder to insure Amazon is not liable for the claimed infringement. Amazon does not care whether these complaints are legitimate or merely an attempt by one seller to eliminate competition.
If there is a legitimate IP issue, there is no point in suing Amazon directly for the infringement. You may however, subpoena Amazon for more information for your lawsuit against the actual party infringing on your IP. In United Pet Group v. Doe, the court determined that the plaintiff may serve subpoenas on Amazon.com to obtain necessary information to identify John Doe Defendants. This was because plaintiff demonstrated good cause by showing irreparable harm from infringement. They had a right to depose Amazon and have them release the identities of the sellers accused of trademark violations. See also, Multi Time Mach., Inc. v. Amazon.com, Inc., which dealt with a trademark allegation where the plaintiff argued Amazon, confused customers. “Plaintiff did not sell items on Amazon, but when customers searched for the item, Amazon returned results with Plaintiff’s trademark and listings from other sellers.”
Customers, manufacturers and sellers have attempted to file suit against Amazon, only to find that they were barred from recovery against Amazon because Amazon is just the platform, not the party who is actually infringing. Additionally, sellers on the Amazon online platform have agreed to binding arbitration under the seller’s terms and conditions when they registered as a seller on Amazon. This means any issues that arise between the seller and Amazon must be handled through arbitration.
Eventually manufacturers as well as other sellers took notice of the way Amazon’s policy for responding to IP complaints. They learned that once Amazon is notified of an infringement claim, they will immediately remove the respective listing and the user’s seller account after a simple inquiry is made as to the authenticity of the claim. This method is effective, it is immediate, and it is now a common loophole for manufacturers, brand name companies, and competing sellers to abuse in order to immediately eliminate competition.
Amazon.com’s motive is not to stop infringement on their platform, but rather, to protect themselves and their company from further liability litigation. That is why they are so willing to remove a listing or user based on little proof. It then becomes the party who was bullied to prove to Amazon that they are selling legitimate, authentic products that do not infringe on anyone’s IP.
What if Someone Has Already Filed an IP Complaint on Your Amazon Account?
Any allegation of intellectual property infringement will result in suspension of your seller account by Amazon. First, you will need to contact the seller or company who has made the allegation. Many companies have taken the necessary precautions and have properly registered their IP. These companies will have systems in place to monitor for infringement, and sometimes people who are legally selling authentic products get caught in the net. In many cases, the IP rights are valid, but the allegation is not.
Many complaints arise where your account is selling a product that may appear similar to others, but those specific similarities are not sufficient enough to constitute infringement. You will likely need an attorney to demonstrate to the company that your product is unique, original, and not infringing on anyone’s IP rights. If the rights owner does not willingly retract its complaint, it is unlikely that Amazon will reinstate your selling privileges for that item.
There are many times where the complaints are baseless. Companies and manufactures will also file IP complaints on your account if you are selling the same product, just at a lower price. These types of complaints are without merit, frivolous, and an abuse of the Amazon platform’s implemented policy. You will need to provide your invoices to Amazon that clearly demonstrate that you purchased the product from an authorized seller and that there are no IP violations whatsoever.
Many companies mistakenly allege infringement on Amazon Seller accounts. If this happens, you will need to bring to the complaining party’s attention that it is their burden to prove there was an actual infringement. For example, for Patent Infringement, there is an “All Elements Rule” that requires each claim limitation to be proven by the plaintiff who is alleging the infringement. If the company alleging the infringement cannot prove that you have met all of the requirements to prove infringement, then there is no infringement, plain and simple. Once it has been established that there was no basis for an infringement claim, the complaining party will usually agree to remove the comment. You will need to have the complaining party state to Amazon, in writing, that the issue is resolved and they are willing to withdraw their complaint. A copy of this document should be attached to your thorough plan of action along with invoices proving your item has not infringed on anyone’s IP rights.
What If You Are Being “Bullied”?
Larger Corporations take extraordinary measures to protect their intellectual property rights, and some of these efforts are unethical and illegal. This is a form of trademark bullying. These “bullies” take their preventative measures far beyond the threat of litigation. They will file suit against anyone they deem to be their competition, whether or not their allegations hold merit. Litigation requires a devotion of time, money, and effort; and many competitors do not have the resources to fight. Companies are threatening litigation not just for actual infringement, but in situations where logos may be vaguely similar. Companies are also filing suit when they discover a smaller company is selling their product, but at a lower cost. The reseller is selling an authentic product, but the company does not care. They want them removed, and they will attempt to eliminate their competition at any cost whether or not they are actually committing trademark infringement. This is trademark bullying, it is unethical, and it is happening every day.
How Can a Company Defend Themselves Against Trademark Bullying?
A company who wishes to fight against trademark bullying will first need to establish that they did not infringe on anyone’s intellectual property rights. If they are selling the same product, but at a lower cost, they will need to provide sufficiently detailed invoices that prove they are selling an authentic product. Companies do not like unauthorized resellers because they will often sell the product at an undesirable low cost. However, unless the company is a party to a Minimum Advertising Price (MAP) agreement, these companies have done nothing legally wrong as they were not obligated to sell at a higher price and the products themselves are authentic. In such a case, any threat of litigation alleging IP infringement is trademark bullying.
What if the Complaint is Legitimate?
Sometimes you are not aware that you are infringing on another party’s IP right. If you are caught infringing on an IP, you will need to immediately remove that listing and never sell that particular product again, unless you obtained it from an authorized reseller. Amazon will suspend your account if another party alleges there is an infringement. Your next step is to write a thorough plan of action that acknowledges your error, how you corrected the error, and the changes you have made in your business practice to assure this will never happen again.
Inauthentic Item Complaints
Inauthentic items are counterfeit items. Complaints on Amazon for inauthentic items are usually filed because items are being collected from unauthorized sellers, and resold on Amazon. Many Amazon customers will also allege that a product is inauthentic when they look like a knock-off, or when they don’t exactly match the description of the product.
What happens if a customer leaves this complaint on your account? What do you do if your account was suspended due to inauthentic item complaints? Your first step would be to determine, “why would my customer believe this is inauthentic?” Look at your inventory; are there a lot of complaints about a certain ASIN? That may indicate that there is a problem with inauthenticity of that ASIN. Check your suppliers and invoices, if you received these items from an authorized reseller or manufacture, then the problem customers are having with your ASINs are for another reason, not because they are inauthentic.
Sometimes, complaints are simply misplaced which leaves you as a seller in a frustrating position. Your products are 100% authentic, but the customer has made the complaint regardless. If you cannot discover why someone left the complaint, you will need to demonstrate in your plan of action how your product is authentic.
You may be selling authentic products, but perhaps the packaging is inconsistent with Amazon’s customer’s expectations. Some buyers reported inauthentic items due to a perceived difference between the product on Amazon and the one they received. While this should be filed as a “Not As Advertised” complaint, it is now your job to correct your packing mistakes and prove the authenticity of your product. Another reason for inauthentic complaints is that your product looks similar to another brand name product, and customers believe you are selling a knock off, or inauthentic item. It is once again your responsibility to correct your product descriptions so that the customers are not easily confused as well as prove the authenticity of your product.
How Do You Get Your Account Reinstated?
You will need to write a thorough plan of action. Once you find the root cause of your problem, you will need to attach invoices to your plan of action that prove your authenticity. Attach invoices that show you are an authorized seller; you receive your products from the manufacturer themselves; or you receive the products from an authorized reseller. With the proper invoices, you can prove that your product is indeed authentic and inform the party who left the complaint that they are mistaken and should remove the complaint.
If the Inauthentic claim was from a rights owner, you will have to resolve the issue directly with them before Amazon will reinstate you. Your letter to the complaining party should clearly demonstrate that they had made an error, and as a result of their error, you are suffering lost profits. If you decide to hire an attorney to assist you with this letter, they will be able to explain to the complaining party that you are entitled to recover lost profits due to their fraudulent complaint. Once a party becomes aware of their mistake, they will often remove the complaint.
The complaining party will need explain in writing to Amazon that they were mistaken and subsequently removed the complaint. A copy of this email should be attached to your plan of action to further show that your account was abiding by Amazon’s policies.
How to Avoid Another Suspension?
Amazon wants you to correct your mistakes and demonstrate how these mistakes will never occur in the future. Amazon does not want you to merely state you will make these changes to your company; they want you to actually do it. You will need to update your training policies. If your issues were with packaging, you need to implement a new procedure to properly package your goods. If your issue was with poor images or poor product descriptions, you need to create a solution so that your items are perfectly described. There are multiple ways to improve your company’s practice. For example, there is software that is available for businesses to use to help better manage a company. By providing to Amazon all of your new procedures and updated software, Amazon will be inclined to reinstate your account because you have demonstrated you took the suspension seriously. To prepare for future Inauthentic complaints, you will need to have your invoices properly stored so that you can immediately respond and disprove the claim. Having your account suspended can be a stressful event for a business owner, but there are ways to have your account reinstated and improve your business practice during the process.
Used Sold as New Complaints
Whether you’re a new designer selling on Amazon or you’re a seasoned entrepreneur, you will need to frequently check whether Amazon has not updated their policies.
For example, you may believe a new product is new as long as it has not been opened or used. Amazon has a more strict interpretation of what constitutes as “new.” In fact, anything that was returned, had damaged packaging, or was opened but not used cannot be labeled as new pursuant to Amazon’s conditions policy. This new change is the source of many complaints filed by Amazon customers. Even though the product is brand new and never used, it may have damage to the packaging or have been previously opened and later returned. As a seller, it is your responsibility to make sure you never make this mistake.
If your account is suspended for a used sold as new complaint, your first action should be determining the root cause of your problem. Were you unaware of the policy changes? It could be possible that you allowed returned, unopened, and unused items to be resold as new. Or perhaps you had a packaging problem that led customers to believe the product was used before. You will need to evaluate your business practices and make sure there is not a larger, underlying problem. If in fact you are selling products as “new” and they do not meet Amazon’s policies, you will need to remove these items from your listings immediately or sell them as used.
Next, you will need to compose a plan of action that demonstrates that you identified the reason customers are leaving these complaints on your page, that you removed the listings, and how you plan to avoid this problem in the future.
How to Avoid Another Suspension?
You will need to retrain your staff on all conditions of use guidelines provided by Amazon, and review the definition of “new” which Amazon describes as: “A brand-new, unused, unopened item in its original packaging, with all original packaging materials included. Original protective wrapping, if any, is intact.” Items that do not meet these criteria cannot be sold on Amazon as “new”. Additionally you will need to check listings for any differences between the items you have and your Amazon listings. You must make sure that all product detail page content matches 100% to every item listed. If you use alternative authentic packaging, you should also add photos of them to your listing.
Another way to avoid these clams is to implement new packaging methods. Amazon’s Shipment Packaging Requirements demand the use of two inches of cushioning between units on the inside of the box. Other ways to avoid damaged packaging is to provide an extra polypropylene bag to protect the product or you can vacuum seal your packaging.
If you are selling through FBA, it may be in your best interest to implement new QA steps to ensure items are fully as described, packaged in new retail packaging, and not ever opened prior to dispatch of items to FBA. Products failing to match the listings perfectly should never be sent to FBA.
Amazon’s policies are constantly evolving and as a business, it is your responsibility to make sure you are up to date on these policy changes. If your company receives an email regarding a relevant ASIN change or merge, you need to review your listings to confirm the updated product detail pages match the items you are selling. This is the best way to avoid complaints, unhappy customers, and keep your account instated.
Business Practices to Incorporate
You want your company to run smoothly on Amazon. Well, Amazon’s policies can make this experience chaotic, challenging and difficult. However, the benefit is worth the risk. All Amazon really wants from their sellers is to make their customers happy. If you do decide to sell on Amazon you should take the necessary precautions, you should challenge yourself as a leader to make your business the most successful it could be.
One way to maintain instatement on Amazon is to remember, your customers matter. Small efforts will go a long way. Depending on the scale of your business, it may be in your best interest to follow up purchases on your purchases. This can be accomplished by simply emailing your customers and asking questions like how did they enjoyed the products? How can your business improve their overall experience in purchasing a product from them? Leave contact information on the email so that if they do have any questions, they will be able to easily reach you.
Another personal touch we have personally found to be effective as a customer is personalizing your orders. One time, we received a hand-written thank you note from a seller. The note simply thanked us a customer and hoped that we enjoyed the product. They also left their contact information available should we need to communicate any further. This simple jester stood out. It made us notice, and it made us want to continue purchasing from this seller. Knowing that someone’s customers mean enough to them that they would write a hand-written note was special, it was different, and we recommend it to other businesses.
In this digital age, it seems as though all of our purchases are impersonal. It is refreshing to deal with a business that simply cares.
Other business practices that you may want to incorporate would be to immediately respond to your customer complaints. If there is an issue with a particular ASIN, stop selling that product immediately until you are able to resolve the underlying issue.
Have you CEO’s personal cell phone number linked to the customer service number and make sure that your policy is to respond to customers within 24 hours. You can also have your CEO use Feedback Genius to help automate and improve the management of your customer feedback.
If you ever do receive feedback of 3 or less, offer your customer a full refund and request more information so that you may identify the issue and correct your business. You should also consider issuing refunds for any customers who leave any A-Z claims. Commutation is not just key in your personal relationships; it is key in your business relationships as well. If your customer was dissatisfied, do not fight with them. Ask them what the issue was, and learn how you can correct it. You will accomplish more by treating you customer with respect, and issuing a refund, even if you believe there was foul play on their behalf. Customers have the power to file complaints, and complaints lead to suspension. It is your responsibility to assist the customer is anyway you can and develop good relationships with the people who purchase your products.