The prevalence of false and baseless infringement complaints is at an all-time high. As a result, Amazon frequently removes listings or suspends seller accounts without investigating the merits of infringement complaints. Sellers enrolled in Brand Registry are unlikely to be impacted by false and baseless infringement complaints. Sellers who are not registered in Brand Registry are not so lucky. Fortunately, Amazon Suspension Lawyer is well-equipped to assist those sellers not enrolled in Brand Registry with defeating false and baseless infringement complaints.
The United States Patent and Trademark Office defines trademark infringement as “the unauthorized use of a trademark or service mark on or in connection with goods and/or services in a manner that is likely to cause confusion, deception, or mistake about the source of the goods and/or services.” Title 15 of the United States Code, section 1114 (otherwise known as the Lanham Act), prohibits “use in commerce any reproduction, counterfeit, copy, or colorable imitation of a registered mark in connection with the sale, offering for sale, distribution, or advertising of any goods or services on or in connection with which such use is likely to cause confusion, or to cause mistake, or to deceive.”
The Lanham act also prohibits the reproduction, counterfeiting, copying or colorable imitation of a registered trademark and application of the reproduction, counterfeit, copy, or colorable imitation to labels, signs, prints, packages, wrappers, receptacles or advertisements intended to be used in commerce upon or in connection with the sale, offering for sale, distribution, or advertising of goods or services on or in connection with which such use is likely to cause confusion, or to cause mistake, or to deceive.
When suspended sellers reach out to Amazon Suspension Lawyer, we evaluate the merits of the infringement complaint. We use our knowledge of applicable legal principles to determine whether the alleged infringement “is likely to cause confusion, deception or mistake about the source of the goods.” We apply 8 key factors identified by the United States Court of Appeals for the Ninth Circuit in AMF, Inc. v. Sleekcraft Boats, 599 F. 2d 341 (9th Cir. 1979).
1. strength of the rights owner’s trademark;
2. proximity of the goods;
3. similarity of the trademarks;
4. evidence of actual confusion;
5. marketing channels used;
6. type of goods and the degree of care likely to be exercised by the purchaser;
7. infringing party’s intent in selecting the mark; and
8. likelihood of expansion of the product lines.
If Amazon Suspension Lawyer concludes there is no infringement, then we rely on legal principles such as the First Sale Doctrine to defeat the infringement claim. In NEC Electronics v. Cal Circuit Abco, 810 F. 2d 1506 (9th Cir. 1987), the Court of Appeals for the Ninth Circuit held a seller cannot be liable for trademark infringement if it purchases genuine products from an authorized distributor for purposes of re-sale. The First Sale Doctrine only applies when the seller is the first purchaser of the product and the purchase is made from an authorized retailer, distributor or manufacturer. In other words, the purchase must be made from someone who is part of the product’s verifiable supply chain.
Amazon Suspension Lawyer works with sellers to assemble documents proving the allegedly infringing product is sourced from the product’s verifiable supply chain. Once these documents are assembled, Amazon Suspension Lawyer prepares a detailed appeal to defeat the baseless infringement complaint.
