When to Hire an Amazon Seller Attorney
For international Amazon sellers, there are few things more troubling than having another seller claim you have infringed on their intellectual property. In a highly competitive marketplace, some unscrupulous Amazon sellers specifically target competitors by attempting to gain an advantage by filing frivolous complaints. This can have serious consequences, including account suspensions, ASIN suspensions, inventory being held, and expensive lawsuits.
One area in particular has seen a huge increase in the number of frivolous claims against competitors: counterfeit infringement claims. For these claims, a competitor claims an item listed on the Amazon Marketplace is “an unlawful total or partial reproduction of a registered trademark or a mark that is very similar to a registered trademark in connection with the sale of a product that does not come from the trademark holder.”
An intellectual property attorney can analyze whether your product is, in fact, a counterfeit product that infringes on a registered trademark, but often, these claims are brought against sellers who are legally selling authentic products. If this is the case, many of the products are covered by the first sale doctrine. This doctrine states that “once a brand owner releases its good into the marketplace, its right to control the distribution of the good is exhausted. The resale of genuine trademarked goods, even if not authorized, does not constitute trademark infringement.” This means that anyone who purchases a branded item has a right to resell it as long as that item is not materially different from those sold by the brand’s authorized sellers.
Material differences can refer to any change in the appearance of the product that would ultimately result in consumer confusion (such as different packaging, branding and markings, etc.). Material differences can also refer to certain product characteristics such as money back guarantees and other warranties that must be offered and implemented by the sellers for products in order for Amazon to consider them genuine. Many rights owners attempt to maneuver around the first sale doctrine by claiming they are unable to verify that you did not modify the product during resale or not acknowledging the existence of the first sale doctrine at all.
An Amazon seller does not need to be an “authorized seller” of an item and, in many cases, the seller receiving the counterfeit item claim is not infringing on any trademarks. There are many sellers and law firms sending baseless letters and making frivolous claims against competitors for the sole purpose of eliminating competition. The costs for sellers accused of such violations can be severe and devastate businesses.
If you have received claims against your Amazon account for trademark infringement, copyright infringement, or counterfeit goods, contact the Xu Law Group to schedule a free, no-obligation consultation with one of our international business and intellectual property law attorneys today.