How can Amazon merchants avoid infringement? What should I do if I am complained of infringement?

From the smash hit “Fingertip Monkey” defendant to the inexplicable “3M” incident, from the trademark registration that can’t be bypassed to the patent application, every day in the cross-border e-commerce market, sellers are reporting that their accounts are restricted in sales rights (including Listing being removed from the shelves and stores being closed). Undoubtedly, infringement is one of the reasons that lead to the largest proportion of removed sales rights. Usually, it refers to the infringement of other people’s intellectual property rights, including trademarks, copyrights and patents, that is, the use of other people’s trademarks, copyrights and patents without the legal authorization of others. Infringement is not only a violation, but also an illegal act. How to break the alleged infringement?

Today, in this article, Ji Xiaote will give you an in-depth analysis of how to prevent and avoid infringement, so that you can rush sales and make big money with peace of mind.

01. What is infringement?

Usually, it refers to the infringement of other people’s intellectual property rights, including trademarks, copyrights and patents, that is, the use of other people’s trademarks, copyrights and patents without the legal authorization of others. Infringement is not only a violation, but also an illegal act.

02. What are the types of infringement?

Copyright: Infringement of copyright, usually refers to infringement of the author’s copyright. This kind of infringement is rarely encountered by sellers in China.

Trademark: unauthorized use of the other party’s trademark or LOGO without the official authorization of the product brand. Most foreign luxury brands defend their rights, such as Versace, MCM and Gucci.

Utility Patent: If the products sold are invented by others, and others apply for patent protection, and the seller produces and sells them without permission, the risk of infringement is high.

Design Patent: The infringement of design patent is a common way of patent infringement. For example, there are similarities in the design or packaging of some products. As for how to judge the infringement of design patent, we found in “Under what circumstances will design patent be judged as infringement?” There is a detailed explanation in the article.

In addition, stealing pictures is also a common type of infringement.

03. Possible consequences of infringement

1. Platform inspection, the product was removed from the shelf, and the store was found to be in violation of regulations;

2. Causing the obligee to complain, ranging from taking the Listing off the shelf to closing the store directly;

3. There is also the risk that the defendant infringes, and the court issues TRO to freeze funds or pay high compensation to the brand.

04. Two misunderstandings about infringement

For infringement, I believe that the sellers who have experienced it have a deep understanding. One sentence of infringement is two lines of tears, and many years of efforts have become empty! But many sellers and friends have two misunderstandings about infringement:

A. My defendant’s infringement is that Amazon rules are too changeable and the requirements are too strict;

B. My defendant’s infringement is a malicious complaint from a competitor;

Here, we want to help you get a correct understanding:

A. The two ends of the infringement case are the seller and the initiator, that is to say, the seller is accused of infringement, which is generally initiated by the brand or consumer, not Amazon. Therefore, the root cause of the infringement is not the change of Amazon’s rules, but the seller’s infringement or suspicion, which is complained by the initiator.

B. Infringement complaints need to be well-founded. If it is really a complaint from others, it is also based on the fact that the seller’s products are suspected of infringement, and it is not a “malicious” complaint from competitors as the seller understands.

05. How should sellers avoid infringement?

① Pay attention to self-examination when selecting products.

Sellers should have a thorough understanding of the products they choose, and they can do a good job of inquiring about the intellectual property rights of basic products before choosing products. However, it should be noted that there is a long blind inspection period in patents, so the inquiry does not guarantee that the products will not be infringed.

Recommend several websites for inquiry:

(1) American Trademark Inquiry Network

　　 http://www.uspto.gov/trademark

(2) American patent inquiry

Https://www.uspto.gov/patent (3) EU Trademark Patent Inquiry

Https://oami.europa.eu/eSearch/#basic ② understands the supply information of products.

It is best for sellers to consult with factories or suppliers to find out whether the products are independently developed, copied from other people’s products, or improved and upgraded on the basis of other people’s products, and more importantly, which sellers the products are supplied to.

Basically, the products independently researched and developed will not have any infringement problems, while for the imitated or improved products, although the infringement problems are avoided, the possibility of being found out is not ruled out.

③ Pay attention to the details of supply.

Suppliers can supply goods to different sellers at the same time, which makes it very common to sell the same products of different brands on the platform. It will often happen that sellers who sell the same products complain about each other’s appearance infringement. For this kind of sellers, we should communicate with suppliers clearly about the details of the source of goods at the beginning.

④ Pay attention to the graphics and texts of Listing.

The words and pictures in Listing can’t be infringed. Make sure that the contents in Listing are original or have obtained the permission of the intellectual property owner. Don’t add non-original Logo to the product pictures at will, and don’t fill in the brand name of non-own brand in the text of Listing.

06. Emergency plan after being sued for infringement

At present, there are two main situations encountered by major platforms after infringement: platform complaints and court prosecutions.

On the one hand, if you are complained by the platform, the suggestions are as follows:

1. Obtain the information of the infringing product and the specific trademark patent right or copyright of the complainant through the platform notice, and analyze whether the product is really infringing;

2. If the analysis by a professional agent or lawyer does not constitute infringement, you can appeal or ask a lawyer to intervene; If it does infringe, the infringing products should be removed from the shelves quickly;

3. If the store’s sales right is suspended, it can be restored by appealing according to the rules of the platform; Even if the complaint is unsuccessful, you can contact the obligee to settle and withdraw the complaint or hire a lawyer to intervene in the negotiation of agency settlement.

On the other hand, if it is sued by the court and TRO is issued to freeze the funds in the account, the following suggestions are made:

1. Inform and/or lawyers through the platform to obtain information on infringing products and cases;

2. Inform or lawyer of the platform and send it to the lawyer for evaluation (whether there is real infringement, whether there is a defense of non-infringement, the progress of the case, the plaintiff’s lawyer’s situation, the settlement standard, etc.);

3. Choose settlement, responding to the lawsuit or giving up (make a choice based on the operation of the store, the frozen funds of the store, the cost of settlement or responding to the lawsuit, the possibility of association with other normal stores, etc.)