How unethical sellers abuse the system with bogus IP, trademark, copyright and patent reports: updated with the latest information
This post is by Chris McCabe, a former Investigation Specialist for Amazon’s Seller Performance team, founder of ecommerceChris.com and co-host of the Seller Velocity Conference, taking place in New York City on 26 April.
UPDATE April 2018: This second edition has been fully reviewed and revised.
In order to meet a minimum liability standard, Amazon will act upon properly submitted and completed notice claims of 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 Notice claim is false, Amazon considers it valid and actionable.
Unfortunately, word is out among potential Notice 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 Notice Claim Queues
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 Notices
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 5 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.
4. Send Amazon Notice Teams a legal letter
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.
5. Initiate a legal escalation to rectify misses by the Notice-Dispute teams
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.