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Amazon Sellers: a practical guide to takedown notices and trade mark infringement

Amazon, like many giant e-commerce platforms has a notoriously inflexible policy for handling trade mark infringement allegations. This works well for Amazon, whose own legal interests are protected if it can show that it has acted (or not acted) according to a preset formula. But this automated approach to trade mark infringement allegations often protects Amazon at the expense of business owners, whose survival is dependent on having access to the Amazon marketplace.

If you are a business owner who is struggling to reinstate your product listing due to a takedown notice, if Amazon is refusing to act on your justified complaints, or if an infringing item has been wrongly restored to the Amazon platform despite your notices, we can help.

Our trade mark lawyers are experienced in helping frustrated business owners overturn wrongful takedown notices and obtain correct ones - read our Amazon sellers trade mark guide below to learn more.

What does Amazon’s trade mark infringement policy say?

Amazon’s IP policy states – unsurprisingly – that it does not permit listings that violate the intellectual property (IP) rights of owners or their licensees.  It explains the general principle that a trade mark owner may prohibit the use of a particular trade mark in the following circumstances:

  • For goods or services identical to those for which the owner has a registered trade mark;
  • For goods or services similar to that of the registered trade mark, if it is likely to cause confusion among customers (even if the trade mark is not identical, only similar); or
  • If the trade mark owner’s mark has reputation in the relevant territory and where the use of the mark or a similar mark takes unfair advantage of, or is detrimental to, the distinctive character or the reputation of the owner’s trade mark.

Amazon advises that a seller may use another business’s trade mark in the following circumstances:

  • Authentic goods: a seller may use a trademarked name to identify what goods it is selling.  For example, a seller who lists an authentic branded product may not be infringing the owner’s trade mark if the seller is using the trade mark to identify second hand goods;
  • Ordinary meaning: when using a word that is trade mark protected for some goods but not for the ones being sold where it is just descriptive (so using “Mustard” is fine for selling mustard even if “Mustard” is a registered trade mark for shoes;
  • Compatibility statements: when truthfully claiming a product is compatible with another trademarked product. For example, you may use the brand name ‘Apple’ to explain a cable you offer is compatible with Apple iPhones. However, there is one important distinction – you cannot use a logo to indicate compatibility, only the brand name. What’s more, any statement made about compatibility must be true and relevant to the customer’s purchase decision (for example, if your product is compatible with all competitor products, it is not permissible to list all brands, as the customer is not at risk of buying the ‘wrong’ product). It must also follow a specific format for product title and must reflect Amazon Brand Name Policy. If you do not apply the correct format to your product title, your listing may be removed as potentially infringing;
  • Similar/equivalent to claims: ‘similar to’ claims (for example, stating goods are “similar or equivalent to Apple”) is a grey area, depending on the marketplace and circumstances. Amazon simply urges users to “seek legal advice” in these circumstances. We can help with this complex area which brings in issues of comparative advertising.

The policy concludes that most other unauthorised uses of a trade mark constitute trade mark infringement and recommends seeking legal advice before listing if you are unsure as to whether you may infringe.

Practical steps Amazon businesses can take to avoid trade mark infringement

Consider the following when listing items for sale on Amazon:

  • Ensure you have procured your goods from a reputable distributor;
  • Ensure you can prove the authenticity of the goods, should you need to;
  • In the context of a complaint in relation to the use of a trade mark protected word, consider whether you could argue that the word is simply an ordinary dictionary definition or description;
  • Ensure the way you describe the goods does not cause potential customer confusion;
  • Ensure you use trade marks in a clear and truthful manner to describe compatibility and do not refer to goods as being similar or equivalent to another product.

What to do if Amazon will not respond to your businesses’ takedown requests or if an infringing listing is reinstated

  • First, review the reasons for refusal. Are they procedure based? An Amazon complaint is an exercise in form-filling, and sometimes our legal assistants can get a takedown request dealt with inexpensively because of our extensive knowledge of how the system works.
  • Next, is the problem that your rights are unregistered? Unregistered rights require a nuanced approach that Amazon’s systems struggle to work with.  Our IP solicitors and their legal assistants are used to set out positions under copyright and unregistered design right law in a way that ticks the Amazon formula boxes and can often solve this problem.
  • Do you have the correct registrations? It is often cheaper to obtain new ones with our help (that the Amazon AI will “understand”) than it is to argue the case with Amazon.
  • Finally, Amazon may not respond to you, or even to a solicitor’s letter (it is usually necessary to commence proceedings to get a response) but the other party should do, or can be obliged to by the court. Amazon is powerful but it is not a court and an infringement on Amazon ultimately falls to be determined by the court itself, not Amazon AI. Amazon must obey court orders that are served on it.

What to do if you receive a warning that your listing has been removed or your account has been suspended due to trade mark allegations?

  • First, review the listing referenced in the takedown notice. Are you confident you are not infringing another persons trade mark? If you are unsure you stop trading and seek the opinion of an trade mark solicitor.
  • Next, if you think the takedown is wrong or malicious, you may appeal the decision using the Amazon forms supplied.  Be aware however that this could form evidence in any later court case so be strictly accurate in what you say and seek advice if in doubt
  • If you believe the reports are malicious, speak to us. The Amazon policy is not flexible enough to deal with unjustified or malicious threats (though if proven Amazon may take action as it would for any other abuse). But malicious reports may themselves be actionable by the courts and we can help with this.
  • Finally, talk to us about whether the trade mark or other IP right relied is valid, and whether it should be on the register at all.  Amazon cannot contest the validity of registered rights: but you can, and we can help with this process, which is often not expensive compared to other legal proceedings.

How we have helped business owners overturn a Amazon takedown notice

Our expert Intellectual Property team is experienced in representing business owners in intellectual property disputes relating to products listed on Amazon; few other law firms have specific experience in this area. Our team will carefully negotiate disputes on your behalf to give you the best chance of securing a favourable outcome.

Our head of Intellectual Property, Lindsay Gledhill, acted for entrepreneur, Mariani Robinson, when Amazon removed six of her listings from its online marketplace.

A competitor sent a takedown notice to Amazon saying that, as the holder of design rights, Mariani’s product was similar to theirs. Amazon removed Mariani’s products from the platform.

Using a rarely known aspect of intellectual property law, Lindsay was able to successfully reverse Amazon’s removal of Mariani’s listings. The other party agreed to withdraw their complaint and agreed not file any more complaints with Amazon. They also paid Mariani’s legal fees. With her sales listings reinstated and a key income source reactivated, Mariani was able to focus on developing and protecting her brand and expanding her growing business.

Why you should seek legal representation for your business

The services we provide in dealing with Amazon itself are specialised.  Standard solicitors’ letters sent to Amazon’s headquarters are rarely the way forward, however skillfully they have been drafted. We know from experience what Amazon will ignore but we also know how to find the chinks in its policy armour. So: if your opponent has gained some temporary advantage because of an unjust automated Amazon decision, we will know how best to overcome this. Amazon is not, ultimately, beyond the reach of the law, and your opponent most certainly is not! 

About our expert

Lindsay Gledhill

Lindsay Gledhill

Intellectual Property Partner
Lindsay is an Intellectual Property Partner at Harper James. She has specialised in intellectual property exploitation and dispute resolution since 1997. She trained and qualified in Cambridge’s top intellectual property firm during the 'dot com boom', then spent four years at top 50 firm, Walker Morris.

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