The COVID-19 crisis has made protecting intellectual property rights from infringement on Amazon more important than ever. With people forced to stay home and retail stores closing across the country, sales on Amazon have surged. In this climate of increased sales, IP rights owners must be especially active in enforcing their rights against Amazon sellers of infringing products. Fortunately, Amazon provides a number of tools that rights owners can use to monitor for infringement and seek removal of infringing listings.
1. Amazon's Online Form for Reporting Infringement
Amazon provides a publicly available online form for rights owners to report infringing listings. This can include reports of trademark infringement, design patent infringement, and even utility patent infringement. Amazon's online form for reporting infringement can be found here. Anyone with a federal trademark or patent can report infringement. One caveat with respect to patent infringement is that if a patent owner cannot direct Amazon to a Federal Court or International Trade Commission (ITC) decision finding patent infringement, then Amazon will not remove the reported listings.
2. Amazon's Utility Patent Neutral Evaluation Program
For patent owners without a court or ITC decision finding patent infringement, Amazon has introduced a new, experimental program for quickly and cost-effectively adjudicating patent disputes, called the Utility Patent Neutral Evaluation program. Under this program, a patent owner can assert one claim of one unexpired U.S. utility patent against sellers of infringing products on Amazon. Amazon then selects a neutral, third-party patent practitioner to act as an arbitrator. Aside from non-infringement, the only defense a seller can assert is invalidity based on a prior district court, ITC, or USPTO decision finding the patent invalid or independently verifiable evidence that the accused product was on sale more than one year before the patent's earliest effective filing date. No discovery is allowed, and the dispute is decided only on briefing. If the evaluator decides that the patent is likely infringed, Amazon will remove the seller's listings. Importantly, an evaluator's decision finding infringement can be relied upon in the future for purposes of filing traditional infringement reports via the online public form or Amazon's Brand Registry.
3. Utilizing Amazon's Brand Registry to Increase Effectiveness
Amazon allows owners of federal trademark registrations to enroll in Amazon's Brand Registry program, which provides a host of IP-related tools. Brand Registry members can submit infringement reports, which is similar to using the online form, but can utilize enhanced search features, get additional feedback from Amazon on the status of filed infringement reports, work with Amazon's brand protection teams, and generally be more effective at having Amazon act on infringement reports to remove infringing content. Amazon also provides Brand Registry members with a host of additional tools for combating counterfeiters and other types of infringers, such as Project Zero.
4. Amazon's New Anti-Counterfeiting Programs
Amazon has been unveiling new programs aimed at boosting brand owners' anti-counterfeiting abilities. One such program is called Project Zero, which can be available to certain brand owners and allows them to remove infringing content from Amazon themselves. Another such program is Amazon's Transparency program, which allows brand owners to apply unique codes to their products, which Amazon employees can scan in warehouses and customers can scan on products they receive to ensure authenticity. These programs and others have great potential to reduce sales of counterfeit products on Amazon and ensure that customers receive genuine products.
5. Developing an Amazon Enforcement Strategy Can Have a Significant Impact
Carefully developing a well-thought-out Amazon enforcement strategy can substantially increase effectiveness while limiting costs. A rights owner should consider the available mechanisms for seeking removal of infringing content, assess the IP rights that it could potentially assert against Amazon sellers, and survey the landscape of infringing sellers and products on Amazon to determine how to be most effective. A rights owner should also consider in advance the logistical issues that may be involved with enforcing rights on Amazon, such as the cost of doing test purchases or analyzing products for infringement, and consider how to make them as seamless and cost effective as possible. Working with experienced counsel can greatly assist in dealing with these issues and developing an overall plan to achieve maximum impact while containing costs.