There’s been a giant spike over the past few months in Amazon account suspensions for Notice claims of infringement. During that time, we’ve seen a lot of appeals filled with poor legal advice and bad strategy that led to numerous failed attempts. Lots of sellers don’t understand Amazon’s Notice process, which makes it difficult to hire the right person to assist.
The quality of the people helping you can be just as important as the quality of the Plan of Action (POA) you send to Amazon’s teams.
If Amazon doesn’t get what they need from you, their investigators stop reading your suspension appeal and move on. They need to get through several investigations per hour, keep in mind. If you motivate them to skip you, they will.
I’m inundated with sellers contacting me, looking for help with their reinstatement POAs. I go to great lengths to make sure my clients find reliable, trustworthy help on all legal-based suspensions. Many need to get the brands they were selling to retract the Notice claims submitted to Amazon. Others manage to resolve those complaints on their own, and mainly need help crafting a worthwhile POA for account reinstatement.
These appeals require a particularly formatted and composed Plan of Action. You have to address how you’ll resolve current complaints with the rights owners. You also must credibly prove how you’ll prevent such rights infringement cases going forward.
Are Amazon sellers considered guilty of infringements until proven innocent?
It would certainly seem so.
(CNBC reported a fake law firm tricked Amazon into removing an ASIN, costing one seller $200,000)
Amazon’s Notice teams long ago got away from simple warnings and listing removals when they receive claims of infringement. Given the extreme number of Notice claims they receive every hour, both legitimate and false claims lead to aggressive enforcement actions and account suspensions. We’ve come to expect it as a fact of life for resellers.
If you’ve been wrongly accused, you do have the Notice-Dispute process to redeem yourself. Unfortunately, you may face the suspension first and a request for a Plan of Action to get reinstated.
How do you resolve infringement complaints and get reinstated?
Firstly, don’t act on your knee-jerk reaction to reply to Amazon. Poor execution on the diagnostic side produce awful results, and a more difficult reinstatement, in any complex Amazon suspension case.
But it doesn’t have to be that way.
The good news is that we can predict Amazon’s behavior around Notice claim enforcement much more easily now. Strategies exist to resolve these account suspensions successfully with a viable POA and solid legal help (that you can depend upon).
We’ve developed our own expertise in resolving these situations while providing the best ways to appeal, and where to go for competent legal help. With a bit of research and effective decision-making, you can join our clients who have resolved these matters quickly and with the right kinds of help.
Where Are All these Infringement Claims Coming from?
Now more than ever, brands and their designated compliance agents do whatever they can to limit who can sell their items on Amazon.
Whenever there’s a dispute between a brand owner and resellers, Amazon won’t mediate or interfere unless the claim can be disputed and proven to be false. Every other claim, be they patent infringements, IP claims, trademark complaints or copyright issues, must be resolved by the reseller to Amazon’s satisfaction. That means obtaining retractions from the brands and having them contact Amazon directly to withdraw them.
I asked attorney Casey Vaughn, of Vaughn Law Group, her perspective on this worrisome phenomenon.
What risks are sellers taking that they may not be aware of?
In many situations such as when the seller is knowingly breaking a distribution contract to sell the product on Amazon and does not want to reveal that fact to the rights owner, it can be more challenging to address such complaints because the supply documentation also reveals that the Amazon seller broke their contracts. There are real-world consequences to behavior on Amazon that may extend beyond a seller’s account health. It’s a lot easier to get a retraction if the seller has clean hands as it relates to product sourcing than if the products have been diverted.
What if I didn’t create the Listing? I sell on an existing listing like everyone else.
As we’ve seen the number of sellers suspended for copyright violations rising, we’ve had to adapt our strategies to a system where Amazon suspends sellers simply based on the rights owners naming them. Notice team investigators look for the ASINs involved, the specific sellers named by the claimant, and the nature of the infringement. If those all check out, then they’re off to the races, sending warnings or suspending the account. Then they move on to the next.
What do sellers need to know about copyright infringements?
The most important thing to keep in mind with content related issues is that any complaint relating to copyright is much more significant if the seller created the listing. Many sellers may not realize that Amazon support staff will tell a rights owner who created a listing on request even though it may not be visible on the Seller Central back-end. Even if you as the seller created a listing using images that you downloaded from the brand website 10 years ago, you can still get in trouble for it as it relates to Amazon now.
If there’s no vetting process from Amazon beyond making sure the form itself is completed, then what can sellers do? I know that Notice-Disputes only come into play after the initial suspension.
There are some effective defenses against copyright claims on listings that the seller did not create or control. Particularly if the brand created the listing, they granted Amazon a perpetual license to use that content and for sellers to post offers on that product detail page. Taking someone’s image without permission and using it for a commercial purpose can constitute copyright infringement, however.
If I’m not the seller who loaded the image, why am I named and removed for a Copyright complaint? What can I do about that?
This is more of a quirk with Amazon than the law. When someone files a complaint that a listing infringes on their copyright, Amazon will treats it as a complaint against every seller who has ever created an offer on the listing — even if they never uploaded any content or edited the listing. If the seller didn’t upload the infringing image or content, there’s a legal procedure called a DMCA counter-notice for asserting that the seller did not distribute or host copyrighted content. Filing DMCA counter-notices without proper legal advice can be extremely risky because it can result in a lawsuit. Many major companies routinely enforce their intellectual property in court. Like many legal issues, it’s very dependent on the facts at hand. Some companies have entirely different enforcement policies and priorities to others.
A copyright complaint can also be related to the product itself. If, for example, the product is a set of Superman pajamas for children with a drawing of Superman on them, but the manufacturer did not pay the licensing fee to the comic book company, the product itself could be infringing on copyright and Amazon may hold the seller responsible for the infringement even if they were both unaware of that fact and were not involved in the manufacture of the infringing product. The seller can only try to work something out with the rights owner to try to get them to retract in such a situation.
What about Trademark Complaints? Are sellers guilty of a trademark violation if they piggybacked on an existing product detail page?
There seems to be a lot of confusion around who is guilty of what Trademark infringement if they haven’t created page content.
If a listing misuses a trademark, the seller can absolutely be held responsible for the infringement even if they did not create the listing. While some rights owners might be willing to retract a claim if the seller never sold a unit on an infringing listing, some of them are going to be intransigent in terms of retracting. Amazon has been more aggressive in enforcing trademark rights than the law requires. For example, it is legal to put a competitor trademark on your product packaging or in a product description as a comparison: e.g. “Compare to Clorox brand bleach.” Amazon does not permit that use and will consider it a valid basis for an Amazon trademark complaint. That is an Amazon TOS issue to be aware of as it relates to the use of trademarks.
Sellers really need to understand the dynamics of trademark before they start disputing these on their own.
What about false counterfeit complaints? Often, the brands don’t seem to know or care who is reported, or how.
For false counterfeit complaints, it can be more challenging to get Amazon to accept retail receipts as proof than it is when using wholesale invoices. Sellers should be aware that certain popular listings, particularly those that have restricted distribution, are often targeted by overly broad counterfeit complaints. If “as seen on TV” is on the package and you purchased it at Walmart, you will probably see one of these complaints in your inbox.
How can Amazon take action solely based on the word of the brand, without verifying supply chain legitimacy first? What if there are no test buys referenced?
We’ve seen a lot of sellers accused of selling counterfeits lately. Many even have sourced the items from authorized distributors.
Amazon does grant less weight to counterfeit complaints made without a test purchase. It is possible to push back against such complaints both with the rights owners and Amazon depending on the context. Sellers should, in their initial response, portray the facts of the matter accurately, present whatever supplier information is relevant, and be proactive about resolving the issue without immediately escalating the matter to multiple Amazon teams which is more likely than not to just confuse Amazon. Citing that it’s a misuse of the terms of service to use counterfeit reporting to enforce distribution contracts is not that effective of a threat for brands that don’t themselves sell on Amazon. It would not be surprising to see Amazon reform its policies to make these kinds of blanket counterfeit complaints less common, but for the time being it’s just something to be aware of.
I hear from sellers every day who need help getting their ASINS or accounts reinstated due to claims of infringement. This is no longer a trend, this is a fact of Amazon selling life.
Make sure you have the right perspective on the Amazon account appeals process, and source the right kinds of legal help to diagnose your particular legal needs. Don’t waste appeals attempts, time, lost sales, and legal fees trying to get decent help from people who cannot provide it. And please don’t send in half-baked appeals to Notice teams. They’re only too happy to reject generic template content and swat POAs away quickly, as they move on to the next case.