Intentional Interference With Contractual Relations: How It Applies To False Counterfeit Complaints

On August 1st, 2019
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We have noticed a tremendous increase in false counterfeit complaints in past six months. We have represented numerous sellers who have been accused of selling counterfeit products when in fact, the products they were selling were completely genuine. The vast majority of counterfeit complaints are designed to harass and eliminate sellers as competitors.

Any seller who sells on Amazon has a contract with Amazon. The terms of this contract are contained in the Amazon Services Business Solutions Agreement. A seller who makes a counterfeit complaint against another seller knows, or should know that the complaint can/will cause account suspension.

Most States have some type of contractual interference tort. For example, in California, a claim for Intentional Interference with Contractual Relations consists of the following elements:

(1) The existence of a contract between the seller and Amazon;

(2) The complaining party knew the seller had a contract with Amazon;

(3) The complaining party’s conduct prevented or made it it more expensive for seller to perform its contract with Amazon;

(4) By filing the false counterfeit complaint, the complaining party intended to disrupt the seller’s performance/execution of its contract with Amazon or the complaining party knew that disruption of performance/execution of the seller’s contract with Amazon was certain or substantially certain to occur;

(5) The seller was harmed; and

(6) The complaining party’s false counterfeit complaint was a substantial factor in the harm suffered by the seller.

A complaining party who files a false counterfeit complaint knows that its complaint could result in suspension of the seller’s account. The complaining party knows that account suspension is very likely to result in damages (i.e. lost sales) to the suspended seller. So, if a complaining seller truly files a false counterfeit complaint then the only reasonable inference is that they are trying to intentionally interfere in the seller’s contract with Amazon. In such a case, the seller may have a legitimate cause of action for intentional interference with contract (or an equivalent tort depending on jurisdiction) which entitles the seller to damages.

Contact Us! Amazon Suspension Lawyer may be able to help determine whether you have a legitimate claim for interference with contract in your State.

Importance Of Document Retention

On July 25th, 2019
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We have seen a tremendous influx in counterfeit and inauthentic item complaints over the past few months. One way to defeat these types of complaints is to provide documentation which shows where you source your product. Unfortunately, many sellers do a poor job of maintaining invoices or bills of lading. Poor document retention makes it difficult to prove to complaining parties or Amazon that the products you sell are genuine.

We recently helped three sellers who were accused of selling counterfeit items. Although we were able to reinstate them despite their poor document retention policy, the process took longer than usual. We therefore cannot stress the importance of maintaining all your invoices and bills of lading.

If you have been suspended for selling counterfeit or inauthentic items, contact us – we can help you get reinstated! We can also help you create or improve your document retention policy.

Common Misconceptions Associated With IP Infringement

On June 20th, 2019
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We have received a lot of inquiries from sellers regarding Amazon’s policies and the type of conduct that constitutes IP infringement. There are a lot of misconceptions about what Amazon considers prohibited conduct. One of the most common complaints accuses sellers of being “unauthorized re-sellers.”

Unauthorized Re-Sellers

The vast majority of Amazon sellers acquire and sell their products through the “grey market.” The “grey market” refers to a marketplace where sellers purchase goods from a variety of sources but not from the original manufacturer or brand owner. A common concern among sellers is the legality of purchasing products from the grey market.

Acquiring products from outside a manufacturer or brand owner’s approved distribution chain is legal. An IP complaint that accuses a seller of purchasing product from outside the brand owner’s authorized distribution chain is a baseless complaint. Not being part of a brand owner’s authorized distribution chain does not prohibit someone from purchasing or reselling the brand owner’s product. Being an “unauthorized re-seller” is not valid grounds for suspension on Amazon.

Minimum Advertised Pricing

Another common type of complaint involves violations of Minimum Advertised Pricing (MAP). Absent a contract with a manufacturer or brand owner, a seller is free to set their own pricing. Amazon has made it clear that violating a manufacturer or brand owner’s MAP does not constitute actionable IP infringement.

Ownership Of Amazon Listings

A third but less common misconception revolves around ownership of Amazon listings. When a brand owner creates a new listing, other sellers are free to join that listing so long as they sell the exact same product with the exact same specifications and packaging. The creator of the listing does not own the listing. Amazon has made it clear that nobody can own a listing.

But, if a seller’s product contains even minor deviations in specifications or packaging then all bets are off. Joining an existing listing while failing to provide the exact same product is grounds for a valid IP infringement complaint.

If you have been accused or suspended for IP infringement, or if you have any questions about Amazon’s policies regarding IP infringement – contact us!

Benefits Of Liability Insurance

On May 31st, 2019
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Most sellers are unaware that Amazon requires third party sellers to carry and/or provide proof of liability insurance. While Amazon has not generally enforced this requirement, a recent string of intellectual property lawsuits may cause Amazon to start enforcing this requirement.

As a seller, you can be liable if somebody gets hurt using your product, or if somebody gets hurt using a product that can be attributed or traced back to you. Liability insurance can provide sellers with coverage and peace of mind.

Liability insurance also provides sellers with indemnity. A seller who gets sued or has a complaint filed against them can tender the claim to its insurance company. The insurance company will then assign lawyers to defend the seller. This protects the seller from aggravation and the costs of defending the claim or lawsuit.

Its better to have insurance and not need, than to need insurance and not have it.

Four Suspended Amazon Accounts Reinstated With Our First Plan Of Action

On May 28th, 2019
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Amazon Suspension Lawyer was recently retained by several sellers who were suspended for ASIN violations and intellectual property complaints. The sellers tried to reinstate their accounts on their own with no luck.

Although Amazon is usually aware of violations before they suspend your account, admitting  to any wrongdoing with Amazon is a bad idea – even if you know that you are violating their policies. While Amazon is often difficult to deal with, a well-crafted Plan of Action usually results in successful account reinstatement.

We worked with our clients to quickly diagnose the issues. We reviewed our clients’ internal processes and identified several flaws which were causing account suspension. We prepared a detailed Plan of Action that resulted in immediate account reinstatement on the first attempt.

Contact us if your Amazon seller account has been suspended. We will work with you to diagnose the issue and we will draft a Plan of Action to get you reinstated quickly!

The Material Difference Exception To The First Sale Doctrine

On May 24th, 2019
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The First Sale Doctrine protects Amazon sellers who simply resell products they purchase from manufacturers or Copyright/Trademark owners. Sellers who make small modifications to products may not be protected by the First Sale Doctrine because the modification can cause “consumer confusion.” Even a small modification can trigger the Material Difference exception.

The term “Material Difference” is quite vague. Modified products may cause confusion among consumers and may not be deemed “genuine.” For example, sellers who make modifications to product packaging may be liable for Intellectual Property infringement.  Other modifications such as changes to product packaging, warranty, money back guarantee or even quality control standards can also be considered a “Material Difference.” Even if the actual product has not been modified, a seller can still be liable for Intellectual Property Infringement.

The vast majority of intellectual property complaints are actually baseless. Amazon Suspension Lawyer has represented many clients who have been accused of intellectual property infringement. But sellers who make even the smallest modifications can be liable for infringement. Amazon Suspension Lawyer has the experience necessary to resolve all types of Intellectual Property complaints. Contact us if you have been accused of intellectual property infringement. We identify and evaluate the merits of intellectual property complaints and we can help you get reinstated!

How The First Sale Doctrine Protects Amazon Sellers

On May 16th, 2019
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The First Sale Doctrine is a legal concept which plays an important role in US copyright and trademark law.  The First Sale Doctrine authorizes a seller to re-sell products which have been placed into the stream of commerce by the copyright or trademark owner.

Most Amazon sellers are nothing more than re-sellers. They purchase, stock and re-sell products which they legitimately purchased from the IP owner. These types of sellers are protected by the First Sale Doctrine as long as they do not alter or modify the original product. For example, an Amazon seller who purchases shoes from Aldo and then re-sells them on Amazon without modifying the product in any way cannot be held liable for IP infringement.

The majority of IP complaints are actually illegitimate. The complaining party usually accuses the seller for violating IP rights even though no actual violation has occurred. Many IP complaints are lodged by Trademark Bullies whose only intention is to interrupt sellers’ legitimate businesses. We have helped many sellers resolve IP complaints by relying on the First Sale Doctrine. Contact us if your seller account has been suspended for Intellectual Property complaints – we can help restore your selling privileges!

Amazon Withdrawing From Domestic China Market

On May 6th, 2019
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Amazon recently announced that it is withdrawing from the domestic China market after 15 years. Amazon has faced stiff competition from companies like Alibaba, JD.com and recent newcomer, Pinduoduo.

This announcement has complicated matters for Chinese sellers who sell domestically in China and overseas to US customers. Our Chinese client base has increased since Amazon’s withdrawal from China became official. Chinese sellers and US sellers shipping to China are experiencing increases in seller suspension issues. Chinese sellers are especially fearful because they do not want their funds and inventory suspended while Amazon finalizes its withdrawal. Sellers are afraid of being stuck with inventory in the domestic China market without a platform to sell.

Amazon Suspension Lawyer has been helping Chinese clients since our inception. Contact us if you are an Amazon China seller who has been suspended – we can help reinstate access to your funds and inventory before Amazon completely withdraws from the domestic China market.

Amazon Seller Support Experiencing Long Delays

On April 29th, 2019
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Many of our clients have reported delays in communicating with Amazon Seller Support. These delays are causing sellers to experience longer than usual down times. Prolonged down times are extremely disruptive to sellers’ businesses.

Most sellers try to resolve account suspensions on their own without knowing or understanding Amazon’s unique policies and procedures. Sellers should rely on experts to expedite the reinstatement of their seller account. Unfortunately, by the time sellers decide to reach out to expert professionals like Amazon Suspension Lawyer their accounts have already been suspended for weeks. This highlights the importance of retaining experienced professionals like Amazon Suspension Lawyer to resolve seller account suspensions. We have the skill and experience necessary to quickly resolve seller suspensions.

We urge existing and prospective clients to avoid attempting to resolve seller account suspensions without consulting an expert. Amazon Suspension Lawyer has the knowledge and experience to expedite seller account reinstatement. We understand Amazon’s policies and we identify all pertinent information and the format in which it needs to be provided to Amazon Seller Support to expedite seller account reinstatement.

Don’t waste your time trying to resolve seller account suspension on your own! Contact Amazon Suspension Lawyer – we can help expedite your seller account reinstatement!

 

Arbitrary Suspensions Are Ruining Businesses

On July 19th, 2018
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This is a classic example of how Amazon’s arbitrary suspensions are completely crippling sellers’ businesses. Amazon provides many people with an opportunity to become entrepreneurs. In this particular case, a seller who was recently laid off decided to open her business, which was making between $1,500 to $2,000 per month, half of which she was able to retain as profit.

The seller then received an email from Amazon indicating that her account has been suspended for “proprietary” reasons. Presumably, the seller was infringing on another seller’s intellectual property rights. Instead of consulting with a professional, the seller decided to work with Amazon to resolve the issue on her own. By the time her account was reinstated two months later, the seller had lost her place in Amazon’s rankings and was stuck with inventory that she was unable to sell. She was forced to close her business as a result.

Intellectual property suspensions are exceptionally tricky. A seller has to go through extraordinary hoops to demonstrate to Amazon that they are not violating another seller’s intellectual property rights. These types of complaints can take months to resolve. Amazon Suspension Lawyer has the expertise  necessary to resolve these issues in a fraction of the time. Amazon Suspension Lawyer works with its clients to investigate the violations and draft a Plan of Action that will expedite account reinstatement. Contact us – we will help reinstate your seller account!