Online Retailers and Intellectual Property
Responsiveness — can you reach a human? · Did the Right Thing — does the retailer make good decisions?
Introduction
With commerce online it is easier than ever to infringe upon someone’s patent / trademark / copyright rights . . . and easier than ever to find infringers.
Unfortunately, e-commerce websites such as Amazon and Ebay are inundated with intellectual property complaints, many of which are fraudulent. Retailers like Amazon care about the customer – which is fine – unless you’re a seller and suddenly find your listings removed.
Below is a summary of our interactions with some of the larger players in the online world, along with how each has scored in our experience. For more information on dealing with infringement on the internet, please contact us.
A few years ago, we wrote that a zero in each category might be too high. Someone in Bangladesh getting paid pennies per hour clicked a box for some automated response about “contact the rights holder” – at one time false complaints were filed under our name. It took half a dozen tries for Amazon to stop sending us, “contact the rights holder” emails to get someone over there to understand that the complaints were fraudulently made.
Worse, Amazon will put up listings with your trademark then sell other products on that same listing by your competitors. Write them and they don’t care. In one of the most egregious cases one of our clients sold a generic product though Amazon was advertising this product with another – the combination would be infringing.
Amazon was sued and they held our client responsible anyway. (Our client was the only seller who agreed to accept liability and then had a near monopoly on the product going forward.)
In another case, Amazon asked our client to make a product for them – that product turned out to be infringing a patent … so Amazon held back hundreds of thousands of dollars owed to our client.
We have a lot more Amazon horror stories …
Ebay deals with massive amounts of fraud. In the past, they weren’t always so good at tracking this and fixing the problem but our dealings with them over the course of many years show they certainly make concerted efforts to fix this in a way that is fair to both parties.
Ebay uses a PDF form that you fill out and send to them – which allows for easy record keeping (compare to Amazon where after you submit, there’s no proper record. Your screenshot might not hold up in court and they know that.)
Sometimes it is hard to reach a human who really knows what they’re doing as they put their customers through all sorts of questionnaires and automated systems, though at the same time, many of their automated systems are very good and very informative. The questionnaires are sometimes used simply to educate a seller, rather than punish the seller, so the seller understands what they can and cannot do in the future.
Back in 2015, you would be able to reach a lawyer on the other side – he wouldn’t help though at least we could have back and forth conversations. Etsy would say, “we’re use industry standard procedures regarding intellectual property” which meant, “we do it like Amazon though not as well”.
As of late, Etsy simply responds with boiler plate information which is largely irrelevant. It took 13 emails back and forth just to get the address of the party who filed a complaint against our client.
Even so, Etsy still refused to actually look at the substance of the case, in this case, a claim that our client was infringing a patent by selling the same product that was sold on Etsy two years prior to the filing date of the alleged patent.
Walmart is pretty good. They probably receive fewer complaints and so can handle the complaints more seriously.
Walmart will send a proper letter to their sellers, forwarding letters from a complainant, explaining the issue and asking the seller to take care of it. Walmart will then stay on top of things. Note that Walmart does not accept all sellers the way Amazon does … Walmart curates whom it works with.
Google is one of the best on this list because it’s a company that does what it should do – you deal with knowledgeable people who know what they’re talking about and understand the law. If you write to Google about keywords in their search trading off of your trademark, they’ll put a stop to it. Write to them about an app which clearly infringes on a trademark, they’ll take it down in a matter of a day or two.
We are huge Google fans – they have open products which are transparent to the world – until they kill it off.
There is a human being to talk to at the other end at Apple who is generally fairly attentive. However, Apple takes a “wait and see” approach. We dealt with a very clear case of trademark infringement and Apple replied only once a month for six months asking if the issue was resolved until they finally removed the infringing app from their store.
Apple does take intellectual property seriously and, in our experience, will do the right thing in the end – and they highly value their own intellectual property. On the receiving end, it appears they mainly want the infringer to stop rather than seeking money.