Bogus Amazon Infringement Claims: Copyright, Trademarks and Patents

This post is by Chris McCabe, owner and founder of ecommerceChris, LLC, an Amazon seller account consultancy.

In order to meet a minimum liability standard, Amazon will act upon properly submitted and completed notices of claimed infringement. They will notify specified marketplace sellers which party reported them, on what listing, and how to reach that would-be rights owner via email. The rest though, is up to you. And, unless you (and possibly your legal team) can prove that the infringement claim is false, Amazon considers it valid and actionable.

Unfortunately, word is out among potential infringement claim abusers that anyone can submit a form. Amazon are not worried about additional vetting or verification processes. Investigators merely check the form for completed content in all the right spaces, kill the listings and send off the notifications.

They don’t independently verify that any of the information is actually correct, or valid. The rights owner makes a legally-binding declaration in the form, and signs it. What if you can’t locate a party who submits a false form against you? It’s up to you to chase them down and then show Amazon teams that the infringement allegations are false. There is no guarantee that you’ll be successful though, as results vary.

A quick history of infringement claim processing

We know that Amazon never gives out anything beyond an email address and does not vet the party submitting the form, but why is this? Because policy is that investigators don’t look beyond the form itself, unless it is to prevent Amazon getting involved in dispute mediation.

Amazon assumes no liability for identifying true versus false rights owners. They merely assess the documents in front of them as complete, look for the named seller storefronts and selected ASINs, and warn or suspend the targeted seller. They refuse to get involved beyond that line unless compelled legally. You’re directed to take your legal disputes elsewhere.

Remember that Amazon teams have trouble keeping up with the number of forms coming in each day. Notice forms roll in constantly, often with no definitive proof of true rights ownership. Listings are cancelled, sellers are warned, top-selling ASINs drop out of active listings and increasingly, sellers find themselves suspended first, with questions asked later.

Amazon has to avoid any chance that they could be missing reports of fake products or counterfeit items, and needs to take every step possible to err on the side of aggression. But the net effect on the marketplace itself is to undermine a seller’s sense of any protection or any real control of this entire process

What is a rights owner infringement, anyway?

There are different kinds of infringement complaints submitted to Amazon for review and action. It’s important to differentiate between counterfeit and rights owner infringement because Amazon treats them differently.

For a counterfeit complaint, Amazon asks the alleged counterfeiter for supply chain documentation. If you’re accused of selling inauthentic products, and especially if there’s a test buy involved from the buyer or accusing seller, you’ll need to provide as much documentation leading back to the brand or manufacturer as possible. If this means adding a letter from your distributor asserting, on their company letterhead, where they sourced the items, then so be it.

For rights owner complaints submitted via this form, Amazon removes the listing pending contact from the complainant. They need to hear directly from the rights owner in order to reinstate your listing. A rights owner complaint could be due to a patent, copyright, or trademark infringement. A patent infringement on Amazon means selling, or offering to sell, a patented invention without the permission of the patent owner.

A copyright infringement is using other people’s images or text without authorization to use it on Amazon. Product listings, physical products, and packaging cannot include copyrighted content or images. Submission of a form indicating a copyright violation results in a listing removal and warning, at the very minimum. Enough of these could result in a suspension.

Trademark infringement concerns symbols or words that are registered to a specific company or product. These may not be used or reproduced (i.e. counterfeit) without authorization. Some recent trademark claims, even for first time offenders, have resulted in suspensions if the brand is sufficiently hot-button, like Apple. So, whether you get a warning or an outright account suspension can depend on the brand that submits the complaint.

There’s evidence that all brands are paying a lot more attention to sales of their products on Amazon. Some want sellers off their listings and others are using the process to try to control their distribution, expecting action to be taken against seller accounts.

Unfortunately, broad account reviews by investigation teams don’t just shut down groups of listings but entire accounts all the time. If you’re repeatedly receiving Notices of Claimed Infringement then it’s easier to force you to change your ways across the board and not just prevent you from selling certain brands.

Amazon changes their tune on disputing claims

Long ago, in a galaxy a bit too close to all of us, some devious and over-competitive sellers looking for weak systems to exploit came up with an idea: why don’t we accuse our competitors of violating our rights ownership? We’ll just give Amazon a token email address and let them hammer our competition.

So, why is Amazon creating new teams around infringement abuse and listening more to sellers who dispute Notices of Claimed Infringement? Well, they need to make sure that they prevent any potential litigation from brand owners, but they also can’t maintain a marketplace where sellers are attacking each other based on the understanding that Amazon lets it happen.

Amazon does not require rights owners to have a seller account. So why not simply provide a freshly created email address as the contact point, and name the seller and the ASINs you want to bring down? Will Amazon find the time, or have the interest, to figure out whose really made the claim? Or, will they simply take the listings down, and warn the seller?

The answer came back definitively on one side. You could take shots at another seller from an email address not associated with a seller account, and watch your competition fall. If there are enough rights owner violations coming in naturally, investigators will suspend the account you’ve targeted. And, if anyone emails asking to resolve the claim, you could ignore it.

1. Finally, the motivation to change…

Amazon previously had little motivation to invest resources or invite legal liability by verifying the legitimacy of rights owner infringement claims. If Amazon Legal advised policy teams that they were not responsible for confirming proper rights ownership information, they ultimately wouldn’t bear the burden. This view had been in place for several years, and no external pressures rose up to challenge their methods.

The newness of the Notice-Dispute teams shows some wear and tear on these aging strategies. Although, they were also needed to restore order, as the constant processing of fake infringement claims right alongside valid ones, without much observation of the differences, had cause things to spin out of control.

2. Low headcount, flooded email queues, no ability to scale

As with other parts of their policy-enforcement, Amazon is not interested in having dozens of investigators run down and check out who is truly the legal rights owner of a certain product’s sale or distribution, and who is not. That would require additional training of their Notice squad, and new hires with legal or paralegal type backgrounds.

As it is, policy teams struggle to meet service level agreements on their main email queues and usually face criticism for auto-response level quality. Adding this kind of work would water down the quality of their investigations ever further. They can’t handle the liability nor the administrative costs, nor must they. You need to watch your own flank on this.

3. Is anyone really following this outside of Amazon sellers and lawyers?

Amazon has not received much bad press nor public commentary on this question, outside of the usual seller forums and Facebook groups. Those readers are usually sellers who are preaching to the choir. To Amazon seller consultants like me, it’s an obvious area for public complaint. For sellers, it’s a known problem that they pray will never affect them personally.

Word is out among those most interested in abusing these processes, and pushing through forms that don’t reflect accurate or even good-faith rights ownership. Bad actors know that Amazon refuses to vet those forms beyond the above criteria, and also that Amazon won’t reject claims because they only have a free email address to send to the unsuspecting target. Once sellers know that the party in the middle with all of the authority will not intervene, it’s open season for everyone.

4. What plays out in the courts?

Not a lot that affects Amazon, thus far. If sellers sue each other claiming rights ownership violations, the only impact on Amazon is lost sales for a particular item. It’s just one tiny drop in an ocean of feverish sales and commissions.

If Amazon itself is sued, they can come back with a well-funded legal team. Are many sellers planning to do that? If they do marshal the financial resources, how long will it take? Will they win? But if Amazon loses a high-profile lawsuit because they failed to protect a rights owner, or they took action based on an inaccurate rights ownership claim, you’ll hear about it. Until then…

5. Is Amazon going to change this anytime soon?

Not from what I can see, until they are properly motivated or receive some incentive to do so. They’ve ignored improvement needs on both Seller Performance and Product Quality team matters for the last couple of years, and only recently have they shown any interest in commenting publicly on those shortcomings. They don’t currently fear public discussion of this subject.

I’ve detected no new evaluation of the notice queues, the teams that handle them, or any interest in making the marketplace a platform where sellers can sell without fear of account closure from false infringement forms. Sellers are on their own and left to their own devices, legal or otherwise. Unless an external party forces Amazon to confront this nightmare, they don’t need to allocate resources, financial or otherwise, to rectify this gaping hole.

OK, so what do I do? My five point plan

What can you, as an Amazon seller and not a mini-god, do to reduce the chance that Amazon will take your entire account down after illegitimate claims of infringement? In an atmosphere where Amazon deflects any attempt to involve them in a rights-owner dispute, you may need to consider multiple avenues towards resolution.

1. Try to contact the rights owner

Try to contact the rights owner at the address provided, just in case they do in fact reply with any additional or helpful information. If you can resolve it with the alleged rights owner and they are willing to contact Amazon to retract the form, that is the best of all outcomes. If you can fix the problem in the short and sweet way, do it.

2. Hire a lawyer who knows what’s going on, legally and in Amazonland

In the absence of any reply from the supposed rights owner, have an attorney who is competent resolving right’s owner disputes and in dealing with Amazon teams that will make a difference.

Ask them to draft a letter on law firm letterhead to send to that party (or their attorney), and gauge the response. If there’s no reply and there’s no evidence that the rights owner has anything to show for their ownership, move on to contacting Amazon and challenging their action via Notice-Dispute teams.

3. Find and contact the real rights owner

If you’re attacked by a non-legitimate “rights owner” it is worth asking your supplier if they can give you the real rights owner’s information. You can then ask the legitimate rights owner to supply you with a letter of authorization or even get them to contact Amazon on your behalf. If the supplier will not give you this information, a quick search on the USPTO database may help you identify the rights owner.

If you aren’t sure that the alleged rights holder can substantiate your claims, you might need to retain an attorney to make sure that you aren’t a victim of a bully or troll. Get the real rights owner to contact Amazon directly for you, to clarify this misuse and abuse of the Notice system.

You didn’t hear from the would-be rights owner, so you’ve now emailed Notice teams and Amazon legal. Are they responsive? Do they ignore you or your attorney?

Each attorney will have a different take on this, but make sure you’re using someone who knows what they’re doing, and understands the work itself. There are a lot of quick buck artists out there currently plaguing the Amazon seller marketplace, plugging their expertise on both sides of the rights owner infringement equation. Investigate each attorney thoroughly.

Are you suspended by Amazon based on wrongly filed rights owner forms? Many of you are as I write this. Have you considered taking legal action to compel Amazon to dismiss the party reporting you for a false infringement?

You may have decided that you’ll simply appeal, promising never again to violate another party’s rights, but that represents only a short term solution. This could easily happen to you again and each time you’re suspended, it will get tougher and tougher to get your account back.

For more on responding to Notices of Claimed Infringement, see How to Fight Amazon Rights Infringement Claims, which covers Plans of Action and DMCA counterclaims in more detail.

Where does that leave us?

Amazon has countered seller complaints about the Notice process by alternating between providing directions for reporting false infringement claims or forcing you to resolve notice disputes with the reporting party.

Make sure you’re looking out for yourself, taking the right steps, and not waiting for Amazon to take care of anything for you. Ultimately it’s not up to them. It will be up to you.

Chris McCabe can be contacted via ecommerceChris.com. ecommerceChris shows Amazon sellers how to keep their accounts healthy, or, if the worst should happen, how to get their account back from a suspension.

This post was first published in January 2017 and last updated in April 2018.

Comments

That Guy
That Guy

What about Amazon's own policy stating that images on Amazon can be used royalty free?

When a detail page is created, it becomes a permanent catalog page on Amazon.com that will remain even if the creator's inventory sells out. Additionally, when you add your copyrighted image to a detail page, you grant Amazon and its affiliates a non-exclusive, worldwide, royalty-free, perpetual, irrevocable right to exercise all rights of publicity over the material.

Chris McCabe
Chris McCabe
In reply to Chris McCabe

You grant Amazon the right to use and display the images, as the quoted policy indicates. That does not state anywhere that all sellers can use any image royalty-free. It means that Amazon itself can use it.

Otherwise, copyright infringement would have no legal meaning on Amazon, which would create a chaotic platform of use and abuse. Anyone could use anyone else's images, at any time, elsewhere on the site. The way this is phrased demonstrates that you can list against a detail page with someone else's image -- but not to have the right to use it elsewhere, at your own discretion.

Karen
Karen
In reply to Karen

Using product photos and text to sell the exact product shown in the photos and described in the text is not copyright infringement. I do not believe the US Copyright Office would accept ordinary product photos or the sorts of descriptions used on product packaging, labels, and listing pages, for registration. Not everything is copyrightable.

Pete
Pete

We are having this exact same problem at the moment. We did $1.8 million with Amazon in 3 months and now we are suspended indefinitely. We had to let staff go because of our revenue drop.

We had a customer/seller actually buy hundreds of one product claiming authenticity to try and increase our metrics past the threshold because we were selling it cheaper than them. They threatened to take our business down and Amazon did nothing and would not block the buyer from us. Eventually we had to stop selling the item. After this, we received 6 infringement claims out of nowhere. One responded and removed the complaint, the other 5 have never responded to us in a 6 week period.

We are completely stuck and did not realise this was apparently such a common theme!

What a nightmare

Chris McCabe
Chris McCabe
In reply to Chris McCabe

Hi, did you hire an attorney to send a letter to the would-be rights owner? That may be a good way to motivate them. Also, there is a new process to dispute notice complaint forms.

Also, did you have any real proof to show Amazon about the buyer being tied to the seller account? They usually need a good amount of evidence of that.

Craig
Craig
In reply to Craig

Hi Chris,

Our Amazon account manager informed us a two Rights Holders that had validate complaints, but we never received an email from Amazon with a list of ASINS or the Complaint ID number. Without this information, we can file a counterclaim. Any ideas?

Craig
Craig
In reply to Craig

Hey Pete, If you are still stuck, I think I can help you. Let me know the best way to reach. Take care, Craig

David A. Self
David A. Self

This isn't just an Amazon issue this is a U.S. nationwide issue because of failed government policies within the USPO. Many times you will see works, publications and products claiming to be trademarked, servicemark, copywrited protected, U.S. Patent Pending then you check with the USPO they have no listing or such or any application filed on such; but, that's to our failed representatives in Washington they have this act called Rights to Privacy, and the USPO can't investigate any wrongdoing. Isn't it great we live in a country so scattered brained from false and misrepresenting works. I am an Amazon Associate, and my advice is do your own investigating before acting because if you think you can depend upon rules and regulations from any U.S. bodies forget it they are too stupid and lazy to act on our request. I don't think Amazon as ones put it is the issue, I think these states government have told Jeff Benzo what he can and can't do, or close their doors to those particular states. Alabama is a great example, the state is so broke from corrupt internal government they have forced an Amazon tax upon all delivers to Alabama at twice the normal rate of any local stores 8%; so, Amazon must charge for such fee or they can't deliver to Alabama even thou the U.S. Supreme Court has rules such tax or fee unconstitutional some states will not comply again because we have dummies and lazy leadership in Washington. I never had an issue with Amazon's policies, it's these damn U.S. states that is causing the problems and failed government policy; so, next time you vote remember don't vote to reelected anyone in presence government seats.

Chris McCabe
Chris McCabe
In reply to Chris McCabe

Certainly, you can't take anybody's word for it. You'd need to do your due diligence to make sure anyone claiming copyright or trademark actually has taken those steps and secured those rights. Thanks for reading.

Britt
Britt

Fantastic expose from someone who knows first hand what's going on at Amazon. I am also an Amazon account manager for various companies and brands (I don't like the title consultant for whatever reason) and I see this becoming such an exploited weakness for sellers that what is coming down the pipe next? Amazon seller account insurance! You'll soon be seeing financial institutions collecting a monthly fee from fear motivated sellers to guarantee their bi weekly payout should they get suspended and some sort of legal team to help reinstate seller status and draw up action plans etc. crazy as it sounds it equally sounds more and more necessary......

Christopher McCabe
Christopher McCabe
In reply to Christopher McCabe

You must have struggled to manage brands for sellers if they were continually fighting off competition doing everything they can to disrupt a proper private label listing right? Well, hopefully there are new brand protection tools coming your way in '17. Make sure there are disputes sent to Notice queues if anyone claims you're infringing against their rights. This process needs to expand to include abuse by those who have no right to assert those rights.

Thanks for reading and commenting.

Christopher McCabe
Christopher McCabe

Will cover counter notices in short order, thanks for pointing that out.

Christopher McCabe
Christopher McCabe

Right but the article misses one key piece of info, who handles the actual reinstatement work? What's their background or track record? Ultimately that will be the most important element.

Interesting to know insurance companies are backing up sellers who need to protect against funds loss. Anything to mitigate risk for those who can't stay away from the policy teams will make sense for those analyzing the risks properly. Thanks for contributing

R L
R L

Recently received a notice for an asin I had listed

"We received a report from a rights owner that you are listing counterfeit products. Sellers on Amazon.com are not allowed to create listings or detail pages for counterfeit goods."

I had listed (quantity of 1) it but never sold any units. Purchased at legit retail store.

Do I have any recourse if the rights holder wont remove?

Seems odd to get a counterfeit claim on something never sold.

Chris
Chris

I don't typically see that phrasing. When it does appear, usually it means the rights owner did what's known as a 'test buy' -- yet you stated that you haven't sold any of the items. Was the title incorrect or hinted at branding, but it's a generic item? Would depend on the details of the situation, but in general, I recommend against purchasing items at retail stores and lean towards buying from authorized resellers, or failing that, from an established, long-time distributor know for selling that brand. You may not have the kinds of supplier info or even the proper invoice documents to prove authenticity, otherwise. Not based on the parameters of what they normally ask to see...

Otherwise, given the Product Quality team landscape these days, you're going to need to appeal to Amazon indicating you'll never list or sell these again, and delete listings/ remove items from FBA.

Thanks for reading. -- Chris

Britt
Britt

No way! Wow that was timing lol thanks I hadn't seen this!

Christopher McCabe
Christopher McCabe
In reply to Christopher McCabe

Hi Britt. Hopefully someday soon Amazon suspensions won't last as long because Amazon teams will respond with more clarity, and indicate what might be missing from each Plan of Action or appeal they receive from sellers. If they only did that, they'd reduce the number of emails they get, and the timelines and lost revenue would go down remarkably. I'll keep agitating for better processes.

When that happens, insurance won't be as necessary as it could be now.

Joanne
Joanne

It's not surprising that this is happening, however, the much bigger issue is the actual copyright infringement that IS taking place. Amazon has a duty to enforce the Digital Millennium Copyright Act and it makes sense that they would err on the side of caution to prevent lawsuits being brought against them. Hoards of sellers operating out of Indonesia, China and various other countries (outside the US) with loose copyright enforcement are using images taken directly from eBay (and other websites) without permission in order to re-sell the products on Amazon. They are essentially acting as a broker and profiting with huge mark-ups. While there is nothing illegal about drop-shipping, it is ethically a questionable practice as the buyer is unaware they are purchasing from a third party and paying three times (or more) what the product is actually valued at. Amazon does act on complaints, however, the process is slow (1-4 weeks) and aside from removal of the intellectual property, I have not witnessed any immediate action taken against the sellers accounts as they continue to operate Amazon stores.

Christopher McCabe
Christopher McCabe
In reply to Christopher McCabe

Agreed on most of the above, the reason it takes Amazon a long time or they sometimes fail to act is the sheer number of these infringement claims, plus as I noted, the knowledge that the Amazon internal teams aren't doing much to vet these forms breeds more abuse. Also, they don't have enough headcount on these teams to handle all the volume.

What did you mean in terms of the dropshipping? Not sure I followed you there.

Chris

Andy Geldman
Andy Geldman

We've just published a follow-up to this post, covering Amazon's changing attitude to these claims, how to create a Plan of Action, and filing a DMCA counterclaim.

How to Fight Amazon Rights Infringement Claims

Chris McCabe
Chris McCabe

Hi this says Craig, is there a Craig on this thread? What is the nature of the false claim, it sounds like you need Notice-Dispute.

Jennifer Krier
Jennifer Krier

Hi Chris, thank you for your article. This exact thing happened to me 4 days ago. I contacted the supplied "email" address and left my phone number/email for the accuser to contact me. No response....I have given myself a few days to let the panic die down from the idea of being suspended and think about sending the retraction. The email sent from Amazon is ambiguous. The item taken down was a Beatles record "infringing Trademark". I researched the supplied trademarks and found little connected to the Beatles. You mentioned Apple in your article. I feel like my record "popped up" in some computer generated list. Am I not protected under the First Sale doctrine 1854? Any insight on my particular situation would be helpful. Thank you for your time, Jennifer

Chris McCabe
Chris McCabe

You'll likely want to get some sense for the nature of the infringements and what validity they have, if you can't determine it by messaging the would-be Rights Owner, then contact a reliable attorney to help i.d. next steps.

You may want them to do the research for you. Law firm letters on their letterhead may also be more likely to generate a response on the other side. Good luck.

Chris

Jennifer Krier
Jennifer Krier

Thank you for your time and energy with this.

Scott Thieman
Scott Thieman

You should write an article about how sellers disregard the IP of business owners and the lack of response or help that they get from Amazon.

Chris McCabe
Chris McCabe
In reply to Chris McCabe

I've written before about taking disputes to the Notice teams and how to combat the lack of scrutiny of each Notice form Amazon executes, no matter how frivolous, but will be addressing this again for my next article for WR on this subject. Please describe the lack of response or help when you've submitted past disputes. Thanks

serigny
serigny

Did you situation evolves since ? or your money due is gone for good ?
My accoutn has been suspended for counterfeit and as I read your comments, I have decided not to despatch pending orders.

Cindy
Cindy

It has been 8 months since my suspension from Amazon. And NO I have NOT received any of the Money that Amazon OWES Me! Almost $700.00, It would be more As I was waiting for the appeals to be decided, Amazon of course took their Monthly selling fee out. Some advocates of Amazon will say “You signed a contract stating they could keep your earnings IF you were listing counterfeit products. Yes, I agreed to that when I signed up with Amason, I knew I would never sell a counterfeit product! I didn’t realize they could falsely accuse me of that. And take my money anyway! Racketeering in that since comes to mind! And then they say send out the orders that you have now! (While we decide your Fate) In other words so we can keep that extra bit of Your money! Does that not sound like a blatant theft by Deception? Of course your going to send your last orders out! You certainly don’t want another hit on your livelihood or integrity! Would have I sent those last orders out if I had any inclination that a foreigner in India whom can’t even speak or read English (And is just trying to make their quota) would Decide my fate, HELL NO!

Chris McCabe
Chris McCabe
In reply to Chris McCabe

There is a precedent for sellers accused of counterfeit who never sold any counterfeit getting back on the site, it depends on the quality of your appeal. And naturally how you choose to escalate it.

https://www.cnbc.com/2018/07/12/amazon-sellers-removed-before-prime-day-two-bad-choices.html

serigny
serigny

Thanks to your comment I have decided no to send my pending orders.
everything is on hold as lonf as I can keep it that way

Chris McCabe
Chris McCabe
In reply to Chris McCabe

This only makes sense if you don't want to pursue an appeal, or try to get the account back. This severs all chances that you'll get reinstated if you cancel those.

Chris

Cindy
Cindy
In reply to Cindy

Chris, With utmost highest praise to you, Your answers, Your wisdom and knowledge! That’s exactly why I sent in my last orders! With stellar performance, No Complaints and Only 2 returns (Both the customers decided they just didn’t want the items) Money returned immediately once I got the orders back. I sent my last orders out! Only to be denied my appeals and to have my selling previledges taken away, And that much more money taken from me! It is definitely a chance and a gamble one would have to decide on. Warmest regards!

Chris McCabe
Chris McCabe

Right I understand Cindy, but maybe you can send the appeal to me to see if it had any value? Did you do this yourself or hire someone to do it? I can judge if they'd look at it or consider it.

You don't need to worry about chasing funds if you are actively selling, it sounds like several appeals went in that Amazon could not accept.

Petr Plecho
Petr Plecho

We are facing absolutely same issue on ETSY.. In case anyone is interested in and wants to get more information don't hesitate to contact me on my email address: [email protected]

Zina
Zina

I've received a counterfeit complaint from Amazon. This particular item is a handmade item we make and we sell using this seller's listings. I don't have any prove against this accusations( no invoice, order ID or anything else) . The item itself is something that is very common and anybody can sell it. The problem here is, they have registered trademark for their name. I tried to communicate with them asking for the retraction letter promising to remove their listings from my account, but it didn't work? Is there anyway I can solve this issue? Thanks

Edward Vincent King, Jr.
Edward Vincent King, Jr.

Does anyone have any experience getting Amazon to act on patent infringement?

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