Seller Strategies International is deeply rooted in the belief that a team comprised of many different skill sets, thought processes, and knowledge is the most effective way to assist Amazon Sellers. Our Amazon Lawyers are available to assist both our team and our clients with issues including Intellectual Property, Filing a Notice of Infringement, Rights Owner Correspondence, DMCA Notices, Counter-Notices, and more.
What is Trademark Infringement?
A TRADEMARK IS ANY WORD, NAME, SYMBOL, DEVICE [OR ANY COMBINATION THEREOF] USED BY A PERSON TO IDENTIFY AND DISTINGUISH THAT PERSON’S GOODS FROM THOSE OF OTHERS, AND TO INDICATE THE SOURCE OF THE GOODS [EVEN IF THAT SOURCE IS GENERALLY UNKNOWN]
[A PERSON WHO USES THE TRADEMARK OF ANOTHER MAY BE LIABLE FOR DAMAGES]
a symbol, word, or words legally registered or established by use as representing a company or product.
Synonyms: logo, brand, emblem, sign, mark, stamp, symbol, badge, crest, monogram, colophon, brand name, trade name, proprietary name
Recent developments to Amazon’s seller policies display a clear shift of preference towards trademarked, established brands — and away from third-party sellers. Basic knowledge of Intellectual Property law has become essential for sellers on the Amazon marketplace as they face more complex trademark violations, copyright infringements, and more.
The standard procedure for filing a trademark infringement complaint is outlined in Section 32  of the US Lanham Act: technically, true infringement is defined as any individual or entity who utilizes a brand or proprietary name identical to that of another party, regardless of intent.
Why Amazon Sellers Should Know About Trademark Law
More marketplace sellers are receiving notices of trademark infringement every day as Amazon tightens its grip on online retail and holds true to their goal of making every effort to keep counterfeit products off the marketplace.
When a potential buyer visits Amazon to make a purchase and sees a trademarked product, that buyer is assured excellent quality – in turn, the likelihood of making a sale rises significantly. This maintains Amazon’s reputation of top customer satisfaction.
Amazon wants to maintain its reputation for great products, fast shipping, and unbelievable customer service policies that allow buyers to, well, buy whatever they want with no risk whatsoever. Because of Amazon’s strict dedication to buyer relations, they chose to implement Brand Registry 2.0 earlier this year. The new Amazon brand registry includes a multitude of new regulations, including a registered trademark from the USPTO for any specific brand sold on Amazon.com.
Our legal team for sellers can assist marketplace sellers in any case of alleged intellectual property infringement. On the other hand, major brand names have experienced the negative impact from counterfeit versions of their products on a grand scale. Our Amazon legal team is available to assist brand owners with removing unauthorized resellers from the platform as well.
Brand Policing for Trademark Owners
Brand protection is becoming more complex as the marketplace evolves, so it has become increasingly important for brands to carefully track any misuse of their brand, sales of their product by unauthorized retailers, and other kinds of infringement on their branded content. Branded content may include text, images, logos, phrases, or anything other usages of the true brand’s identity in a manner that could be construed as confusingly similar.
If you believe your trademark is being utilized by an unauthorized party on Amazon, contact us today to speak with our knowledgeable legal department.
How to Pinpoint Trademark Infringement
In nearly every case, Amazon sellers facing trademark infringement issues need clarification on whether another seller is truly infringing or not. This can be achieved by determining the likelihood of confusion for buyers. By definition, likelihood of confusion occurs when the defendant, without the plaintiff’s consent, used in commerce a reproduction, copy, counterfeit or colorable imitation of plaintiff’s mark in connection with the distribution or advertisement of goods, such that the defendant’s use of the mark is likely to cause confusion as to the source of the goods. [via US Court of Appeals Ninth Circuit Reference Guide, 2017]
The Ninth Circuit reference from the United States Court of Appeals notes that the alleged trademark infringement does not need to be an identical copy of the mark in question. More importantly, brand registered sellers must show proof that the infringing party used content that presented an overall picture that was likely to confuse the minds of “reasonably prudent purchasers or users” for a particular item. [SOURCE: USCourts.gov]
It’s important for both sellers and brand owners to be conscious of the intricate rules of trademark law to avoid potential issues. Although the defendant’s true intent may hold some weight in court, a trademark infringement case can be filed regardless of intent.
Unfair Competition and Amazon
Unfair Competition is defined as any business practice that has been designed with the intent to damage another party, cause lost profits, and ultimately remove that party from a particular industry. Some common examples of unfair competitive practices include trademark infringements, trade defamation, and disclosure of business trade secrets. Below is a comprehensive list of the practices often classified as unfair competition:
- false advertising
- “bait and switch” selling tactics
- unauthorized substitution of one brand of goods for another
- use of confidential information by a former employee to solicit customers
- theft of trade secrets
- breach of a restrictive covenant
- trade libel
- False representation of products or services [2. via Cornell Law School]
With regards to Amazon, marketplace sellers, and their collective buyers, unfair competition laws may help prevent unfair pricing strategies, misuse of a trademark, and misleading representation of an item or brand on the marketplace.
Establishing and Protecting Your Intellectual Property
Amazon.com has become the most dominating entity in the retail industry, and each day they move forward with new acquisitions that have allowed them to own a portion of nearly every industry in US commerce. A lot of companies are now facing the reality of the current situation: Amazon is here to stay. Business owners and brand owners need to either work with Amazon or compete against them.
Some brands, such as Whole Foods, have chosen to partner up with the retail giant to save their chance of remaining successful in the digital age. Others, such as some major high-fashion brands and shoe manufacturers Birkenstock, have chosen to pull their items from the marketplace altogether. Additionally, some major retailers (Wal-Mart, for example) have stepped up to the plate and chosen to go head-to-head with Bezos.
If you’re a seller or a brand owner struggling with Amazon, intellectual property, and choosing the right strategy to maintain your success, our Amazon legal team is available to help determine the best route for you.