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.