8 Major Differences between US Courts’ and Amazon’s Handling of Claims of Trademark Infringement, by CJ Rosenbaum from the AmazonSellersLawyer.com. Amazon Sellers Lawyer is a legal team that is dedicated to defending sellers’ rights by applying legal strategies to protect their accounts and handle account suspensions, complaints and policy violations. All opinions expressed in this article are those of the guest author only.
|Judges do not order anyone to do anything without significant evidence of some violation of US Trademark Law.||Amazon often suspends accounts or, if you are luckier, just one or more listings, based solely on allegations. CJ’s Suggestions to Amazon – Only Address Products at Issue, Stop Putting Sellers Out of Business.|
|Judges do not have any interest in the outcome. All parties are treated equally. While it is true that larger businesses can better withstand the time and cost of litigation, at least in a court of law, the rules are the same for all parties in the courthouse. This includes people and companies from all over the world. In US courts, the law is the same for the dispute regardless of where you are from.||Amazon favors brands. Brand registry, brand gating, “rights owner” complaints…these are all methods that Amazon has shown where its loyalties lie. Third party sellers..third party individuals and small businesses are replaceable. CJ’s Suggestions to Amazon – Treat Sellers and Brands Equally.|
|If someone files a baseless lawsuit in the federal court, you can seek attorneys’ fees, costs and you can ask a judge to sanction or punish a company for filing baseless claims.||Amazon has no punishment system in place for brands that file baseless complaints even though it knows that a suspension and its withholding your funds can put you out of business. There is no accountability for the brands that file nonsense complaints that hurt sellers. CJ’s Suggestions to Amazon – Suspend Those that Assert Baseless Complaints.|
|Counter Claims. In the federal court, if you are sued by a big brand, you can assert counter claims to seek your lost profits and damages.||Amazon has No Counter Claims. When a big brand claims that you are violating their trademark rights and they are clearly or turn out to be false, you have no way within the Amazon system to recoup your lost sales from the party that filed the bogus complaint. CJ’s Suggestions to Amazon – Provide Ability to Assert and Recover on Counter Claims.|
|Burden of Proof. In court, the party seeking to prove infringement must satisfy the court that infringement is likely occurring.||Amazon Switches Traditional Burden of Proof. Upon filing the complaint, Amazon compels the seller to show that he/she is NOT violating anyone’s rights…..if they read your Plan of Action. CJ’s Suggestions to Amazon – Follow the Law. Proof first, punishment Second.|
|Courts Settle Disputes. Whether you like it or not, if you are in court, your issues will be resolved. They will either be worked out by the parties or the court will decide. But, you will obtain a ruling: infringement or no infringement.||Amazon Lacks Any Settlement Mechanism. Amazon requires you to Settle with the person or company that asserted the complaint. On Amazon, there is no determination of whether or not there was any infringement. Amazon simply punishes the seller and protects the brand until the parties work it out. Amazon tells the victim: go work it out with the complainant and let us know when the issues are resolved. Amazon puts all of the power into the party that made the complaint. CJ’s Suggestions to Amazon – Create an Immediate Tribunal for Complaints.|
|Contempt of Court and Perjury. If a brand lies to a federal judge or in a federal court filing, the court can hold that person, company or lawyer in contempt. There are perjury laws in every court in the United States.||No Punishment for Bogus Claims. If a brand lies to Amazon about their ownership of the intellectual property rights or their claim of infringement, there is no punishment for that complainant. CJ’s Suggestions to Amazon – Punish Brands that Make Bogus Claims|
|Anti-Trade Laws. There are many laws that protect sellers from unfair trade practices. There are provisions under the Lanham Act that prohibit monopolistic conduct and interference with contract laws that protect sellers’ agreements with Amazon.||No Anti-Trade Policies. We know that Amazon is adding brands to its protected classes: first customers, now brands. Amazon does not have any system in place to remedy the suppression of competition that occurs when a brand makes a complaint against a seller and the seller gets suspended. CJ’s Suggestions to Amazon – Compel Companies that Cause Higher Prices to Refund Consumers for the Higher Cost Paid for Products|
CJ’s Suggestions to Amazon to Help Sellers and Customers
Only Address Products at Issue, Stop Putting Sellers Out of Business.
It never made sense to me that the sale of products that have nothing to do with a trademark complaint are suspended. It doesn’t make sense that someone’s entire account gets suspended when only one product or line of products has an issue. As sellers around the world know, they live in fear of account suspensions because they lose their income and also suffer the withholding of funds for weeks prior.
If Amazon wants to fairly address trademark complaints, then it should solely address the trademark complaints. Stop punishing sellers by shutting down their entire account. This will allow sellers the ability to fairly address the accusations and not admit to false infractions and also protect Amazon’s customers by continuing to provide competitively priced high quality products. By not suspending entire accounts, Amazon will continue to foster the competition that benefits Amazon consumers.
Treat Sellers and Brands Equally.
Even though Amazon is clearly continuing to moving toward full brand protection, protecting brands is served best by treating Brands and Sellers equally. Amazon should follow our legal system of “blind justice” where the person making the decisions resolving the disputes applies the same rules to both sides.
When sellers are simply able to obtain the products at lower costs through holes in the Brand’s distribution chain and deliver those savings to consumers, Amazon should encourage that consumer benefit. That would be a real “obsession on the consumer.”
Suspend Those that Assert Baseless Complaints.
Amazon should hold brands responsible for baseless complaints through the same punishment it ruthlessly applies to sellers: Suspension of their Selling Privileges. If a Brand makes a complaint that turns out to be baseless or otherwise fails, then the party making the complaint should lose their selling privileges for some period of time. Amazon should use the fear of suspension equally.
When both ROs have some skin in the game, when their sales are also at stake, then baseless complaints will slow down and Amazon’s customers will continue to benefit from a truly open marketplace.
Provide Ability to Assert and Recover on Counter Claims.
Amazon should create or employ an arbitration company to provide the ability for victims of complaints to assert counter claims.
If a big brand asserts a baseless complaint, Amazon should provide a real mechanism for that same determination to hear the sellers’ claims of damages. Make the hearings or determinations work for both parties.
Create an Immediate Tribunal for Complaints.
Amazon should either create its own tribunal or expand its current reliance on the American Arbitration Association to include resolving disputes between brands and sellers.
Punish Brands that Make Bogus Claims.
Clearly big brands have the upper hand when asserting complaints against most sellers.
Amazon should have a provision that when a complaint is devoid of merit, punitive damages are available to the victimized seller. The United States Congress recognizes what is called “trademark bullying” and Amazon should too.
If there was no basis for the trademark complaint, make the company that asserted the baseless complaint pay an amount of money that will serve as a deterrent to future baseless claims.
Compel Companies that Cause Higher Prices to Refund Consumers for the Higher Cost Paid for Products.
If Amazon’s goal is to protect consumers and baseless complaints harm consumers by raising prices, when there is a finding that the complaint was baseless, compel the brand to issue refunds to buyers for the difference in prices consumers paid for the items that had full competition and the items where prices rose because competition was suppressed.