We applaud Amazon for taking a stance against patent, trademark, and copyright infringement. Amazon Neutral Patent Evaluation is a game changer for patent owners concerned about knock-offs sold on Amazon. Likewise, Amazon Brand Registry and Project Zero have become valuable weapons for Amazon sellers to enforce their trademark rights. Indeed, these tools bring so much value to companies in the consumer-product market, that Smith & Hopen launched an initiative dedicated specifically to Amazon patent and trademark infringement. However, any powerful weapon can cause harm in the wrong hands. Recently, we have encountered several instances of patent and copyright abuse on Amazon. Here is some practical advice on how to defend your Amazon business against fraudulent infringement allegations.
1. Hire a U.S. licensed IP attorney
Folks working in Amazon’s legal department are extremely busy. Therefore, they do not have time to read lengthy, emotionally charged emails about why someone wrongfully accused your business of patent, trademark, or copyright infringement. However, a fact-based legal letter, on the official law firm letterhead, and signed by a licensed attorney will likely capture their attention. Many companies doing business on Amazon are based abroad and may not have access to a U.S. based attorney. Use this to your advantage. Hire a competent licensed attorney and tip the scales of Amazon justice in your favor.
2. Verify ownership of the asserted IP asset
One variant of patent and trademark abuse on Amazon involves Amazon patent infringement complaints filed by entities that do not own the patents they are asserting. Instead, these perpetrators search the Google patent database for patents that at least tangentially relate to your product. Then, they allege that your Amazon listing infringes a third-party patent they found. Amazon rules are clear: only a party that owns a patent, a federal trademark registration, or a copyright registration can enforce its IP assets against others. In other words, asserting a patent without ownership rights is a clear violation of Amazon’s IP policy.
3. Stay out of Amazon Neutral Patent Evaluation
When it comes to IP infringement accusations, an old adage rings true: “an ounce of prevention is worth a pound of cure.” Indeed, conclusively refuting patent or trademark infringement allegations early will save your business from unnecessary headache. As soon as you receive a notification from Amazon regarding a patent infringement accusation, the clock starts ticking. A failure to timely respond to such allegations may propel the case toward Amazon Neutral Patent Evaluation. At that point, your company will be involved in a quasi-litigation proceeding, defending which will likely entail significant cost. However, if you strongly respond to the initial accusation, explaining why the accusations are baseless or fraudulent, Amazon will likely quash them at an early stage, allowing you to focus on growing your business, instead of defending it against abusive infringement allegations.