Amazon Infringement Claims: Design Patents, Retractions, and more

orry sellers, retractions aren’t enough

Amazon wants invoices to disprove design patent infringement, blocks accounts with retracted IP claims

Infringement claims on Amazon have grown increasingly frustrating over the past year. This has reached a deafening crescendo over the last few weeks, with our clients being victimized by nonsensical requests and account blocks – even after doing exactly what Amazon asked.

First, a word about infringement claims.

Also known as intellectual property (IP) complaints, infringement claims occur when a brand owner (or random party/black hat competitor) says a listing should be taken down because of:

• IP infringement/counterfeit – the brand owner says the seller is listing fakes.
• Trademark infringement – the brand owner says the seller is abusing a trademark, which could mean that terms or trade dress are being used in violation of their trademarked words or images.
• Copyright infringement – the brand owner says the seller is using their text or images in the listing or using their branded terms in the listing or its back-end keywords.
• Utility patent infringement – the brand owner claims to own a patent around the use of a product, and the seller is violating that patent by selling a product that does or claims to do the same.
• Design patent infringement – the brand owner says a competing product looks too similar to their patented design.

Each of those five common infringement types deserves its own blog. But for this particular piece, we are talking about what’s going on at Amazon right now.

It’s difficult to choose which recent development is most stunning. Most likely, it’s the one affecting your business right now.

1. Amazon is refusing to reactivate accounts, even after IP complaints are retracted. This is maddening for sellers whose accounts were deactivated specifically because of the IP complaint a brand (or multiple brands) made against them. For years now, Amazon has told sellers to reach out to the brand owner and work out a solution. Then, if the brand owner retracted the complaint, everyone could move forward in peace. Now, instead of accepting retractions, Amazon is asking for the same information – over and over and over again.
2. Amazon is asking for invoices or brand authorization letters to disprove design or utility patent infringement. This is ridiculous on its face. A seller accused of patent infringement is not selling the ASIN for which the brand owner has brand registry. The seller is offering a competing item, and the brand owner is claiming that the competing item is violating their patent. How would it make any sense to provide invoices for the competing items to disprove a patent claim? (Easy answer: it wouldn’t.)
3. Amazon is not responding to emails about deactivated accounts with IP claims – for weeks or months. These are not always blocked accounts. They are accounts where Amazon has specifically requested information, and the seller is responding with that information. The wait time for a response is growing each week, and the escalations addresses that typically push toward resolution are not bothering to read and understand the underlying problems with Amazon’s enforcement approach. It takes a virtual screed to get them to pay attention.

Something is very broken around IP claims. And for the sake of sellers, we hope Amazon fixes it fast.