Patent Lawyers in New York & New Jersey

Amazon and Intellectual Property Infringement

- by Michael Feigin, Esq.

How Amazon Deals with Intellectual Property

I love Amazon and buy just about everything there except for when I venture out into the physical world in which case my store of choice is Costco. However, the way they deal with intellectual property is notoriously really, really bad. If you notify them of intellectual property infringement (patent, trademark, or copyright) they will invariably ignore real claims, while sometimes acting on spurious claims without telling you a reason why they took down your listing.

I have had clear cases where a client might have a trademark, and Amazon will sell goods of other's using your trademark listing. I have had other cases where two Amazon sellers were buying an item with a specific product code from the same supplier in China and one seller claimed it was "his" product code. Amazon removed the listings of the other. Every now and then on lawyer lists there are talks of class action suits against Amazon, but none have materialized to my knowledge.

Recently, Amazon has taken Etsy's approach to intellectual property infringement. Namely, "it's not our problem that we took down your listing - go get an agreement with the person who complained about you!" Now to be fair, with Etsy if you hire a lawyer such as myself, I can talk to a knowledgable lawyer on the other side who will discuss the matter with me and be reasonable. At least, that has been my experience. With Amazon, you can't get past what is either a really bad artificial intelligence bot or someone they are paying minimum wage to copy and paste phrases into a response. I decided to write this publicly because Amazon's handling of intellectual property is so dismal that there's nothing to lose. This is a real summary of one such discussion, albeit I am changing the item name . . .

Conversation with Amazon about Intellectual Property

Amazon to client: "Some lawyer says your product infringes his patent so we took down your listings. Get his agreement and we'll put it back up."

Me: "Hi, I'm a lawyer and I represent the client. He's selling product X only. It's a sharpened peice of metal A which has been known since about the Bronze Age. The patent being cited requires that the person use A+B+C+D together, so my client can't possibly be infringing."

Amazon: " For privacy and security reasons, we can only send information to the e-mail address that is registered to your Amazon account. Please write from the e-mail address that is registered to your account and we will be happy to assist you."

Me: "I cannot write from my client's email address! Here are links to see my attorney registration listings with each of the states of New York and New Jersey as well as with the U.S. Patent Office."

Client from his email address: "I appointed attorney Michael J. Feigin to take care of this issue with Amazon, do I need to do anything else to proof he is my attorney?"

Amazon: " Amazon Seller Support is not in a position to offer you legal advice. If you are in doubt whether, and to what extent, you are complying with all your legal obligations as a seller, we would suggest that you engage legal counsel to advise you in the matter."

Me: "I am the legal counsel! How can I speak to a lawyer on your side concerning a legal matter?"

Amazon: " We removed these items from our site because we were notified by the rights owner that the items infringed their rights. Please contact the rights owner directly for more information."

Me: "As I showed in the one page letter, their claim of infringement is clearly false. There is no "rights owner" who has a monopoly on sales of sharpened metal. Asking my client to come to an agreement with the "rights owner" is like asking a hen to get the fox to agree not to steal it's eggs."

Amazon: " Amazon Seller Support is not in a position to offer you legal advice. If you are in doubt whether, and to what extent, you are complying with all your legal obligations as a seller, we would suggest that you engage legal counsel to advise you in the matter."

Me: "I am the attorney. It is my strong opinion at this time, based on all information at my disposal about this matter that my client is within all applicable laws and regulations with regards to sales of his sharpened pieces of metal. I am not seeking legal advice from Amazon. I am the legal counsel which has been engaged. We simply request that Amazon re-instate the listings."

No further responses from Amazon.

Amazon Shoots Itself in the Foot

Upon further investigation, it turns out the "rights owner" filed a lawsuit against Amazon for patent infringement based on Amazon advertisements of various products together (e.g. on my client's listing it might say "others also purchased..." and list the products required to infringe the patent). I would guess that the "rights owner" had a very similar conversation with the bot at Amazon that I did leaving them with no recourse but to take them to court. If the plaintiffs was able to have any meaningful discussion with Amazon in the first place, it probably wouldn't have come to a lawsuit and wouldn't have come to Amazon removing all sorts of very legitimate listings, harming numerous Amazon sellers and customers who buy/sell this ancient product.

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