Intellectual Property Insights from Fishman Stewart PLLC
Newsletter – Volume 22, Issue 20
Share on Social
Amazon, Infringers and Design Patents: A Cautionary Tale
By: Doug P. LaLone
Combating copycats on Amazon can be an expensive, frustrating endeavor. This is doubly true when simultaneously taking on both copycats and Amazon.
It is all too common of a story for sellers on Amazon: a listing pops up purporting to sell a replica of your patented, copyrighted, or trademarked goods. You file a complaint with Amazon, but receive only a canned, automated response from Amazon that no action will be taken because the listing does not infringe your rights. You resubmit the form, and receive the same response, over and over again. You look for a hotline with the hope of speaking with a human, but you are redirected to the online form.
Eventually, after numerous submissions and denials from Amazon, you succeed in having the listing removed, but three more listings pop up overnight. You are playing an endless game of Whac-A-Mole. You file requests that Amazon remove those new listings, the way it eventually removed the last listing, only to be told, once again, that Amazon does not believe the new listings infringe your rights-despite its previous conclusions to the contrary with other, identical listings. You submit more requests, until you either (1) successfully see the listing removed, or (2) your account is suspended by Amazon because you submitted too many requests. We feel this pain acutely, since we recently went through a similar experience on behalf of one of our clients.
Understanding Amazon’s business model might help shed light on the challenges vendors face in enforcing their intellectual property rights on the platform. Particularly in the US, entrepreneurs and small businesses selling products on Amazon prefer to ship their products from their own facilities. In such cases, Amazon makes around 20% commission for everything sold. For counterfeit products, many of which originate overseas, such sellers often store their goods in one of Amazon’s mega distribution centers. In those cases, Amazon makes even more money, around 50% of every sale (20% for the commission, plus another 30% for warehousing and distribution fees). These rates fluctuate, and in some cases are even higher.
Thus, on its face, there is a perverse economic incentive for Amazon to continue to sell infringing products of foreign vendors at the expense of US intellectual property rights owners. Even more problematic, Amazon has been accused of stealing the designs of its vendors with some of its own Amazon branded products.
For Amazon vendors, properly securing your intellectual property may provide the much-needed legal leverage to combat copycats, especially on Amazon. For Amazon buyers, the next time you shop on Amazon, look for those products that say they are patented. You could be helping a local innovator protect its valuable asset, and its revenue stream!
Published September 30, 2022
Kudos to Big Whitetail Dream
We congratulate client Big Whitetail Dreams, a US company that secured a design patent protecting its J-Hook shaped bow and arrow gear hanger. It successfully leveraged its design patent against numerous infringers that were selling knock offs on Amazon. Here’s an example of one infringing product:
Big Whitetail Dreams’ Design Patent: Infringer’s Gear Hanger:
Doug LaLone is an engineer, patent attorney, and partner at Fishman Stewart. He also serves as chair of the firm’s Strategic IP Practice Group which counsels portfolio companies, PE, VC and IB firms on intellectual property strategies, due diligence and portfolio management. Check out his bio.
Related Content from Fishman Stewart
Why is IP Protection Crucial for Small Businesses? We understand the challenges faced by small businesses, and we encourage you to take proactive measures to protect your intellectual property.
Thanksgiving: turkey, pumpkin (or sweet potato) pie, family gatherings, and of course, a five-story floating Poppin’ Fresh.
Queen of Christmas Sued for Copyright Infringement – Again
FishBits: Mini Article Volume 23, Issue 21
Earlier this month, Mariah Carey was named in a lawsuit in federal district court for copyright infringement. The plaintiffs, musicians Andy Stone (stage name “Vince Vance”) and Troy Powers, allege that the so-called “Queen of Christmas” used their country music song “All I want for Christmas is You” as the basis for her hit pop song with the same title.
The Supreme Court heard arguments last week regarding an appeal of the Patent and Trademark Office’s refusal to register TRUMP TOO SMALL for shirts and sweat shirts filed by Steve Elster
The art of tattooing can be traced back to ancient times. In fact, archaeologists have uncovered tattoo tools that date back at least 12,000 years. However, lawsuits over tattoos and copyright law are a much, much more recent phenomenon.
Intellectual property lawyers don’t just prepare arcane treatises on scientific and technological topics, i.e., patent applications. We also have a host of cool moves and magic tricks up our sleeves.
Trademarks travel. In many ways, that’s one of the primary purposes of a trademark—to distribute the reputation of the brand’s owner widely and efficiently. It is for this reason that trademark registrations issued by the U.S. Trademark Office are entitled to nationwide rights.
Happy Friday the 13th! In this appropriately timed article, we update you on the latest in the legal battle over the copyrights to the classic horror film Friday the 13th.
September 19th is International Talk Like a Pirate Day. In terms of intellectual property, “pirating” refers to the unauthorized copying, distribution, or use of someone else's creative work without their permission, and often for personal or financial gain.
School names and their indicia are now a big source of revenue and local schools’ merchandise is found alongside college and pro sports merchandise. However, included with the increased visibility from the monetization and use of school names and mascots are trademark infringement risks.
IDENTIFYING, SECURING AND ADVANCING CREATIVITY®
