Abuse of Design Patent Law
Hi,
We have been selling the same product on Amazon since 2021. Recently added a pack-size variation after a great experience with the smaller pack. Currently, our old pack has gone out of stock (will get replenished this week), so we’re just selling the bigger one.
A couple of days back, we were notified that our new ASIN has been taken down because we are infringing a “registered” design filed very recently in Jan. 2022.
Please note that this is a very generic design which is being sold on and off Amazon years before this patent was filed. Even my first product (which is currently out of stock) was listed on Amazon before.
Going by this logic, any seller can jump in with their own design patent on a generic design and start suspending listings/accounts at their own will. It’s a black hat technique through and through.
I tried appealing from Account Health section, but they just responded with their generic automated reply requiring LOA, invoice from apparent “rights” owner, retraction from “rights” owner or our proof of registered design.
I feel so helpless. Amazon support has been of no help. This is a clear abuse of patent law. I don’t get why they can’t see it.
Should I proceed with this matter legally? What are my options? Please help me sort this out.
34 replies
Seller_7VbclcPFFRTnc
Is it something you bought as a reseller from another brand - trade/wholesaler or a product you have bought in China etc that you have private labelled ?
Seller_rGtEcZnu0JTRD
Not unless you have VERY deep pockets and you are prepared to empty them.
Seller_fBb7IEJM56koH
Are there any mods that can help me escalate this case to the right authorities?
Seller_fBb7IEJM56koH
ALSO MAJOR UPDATE:
I have found out that another EXACT design patent exists in the market even BEFORE this seller registered his. So, on technical grounds, the older one overrides the newer one.
How can I potentially use this to my advantage?
Seller_tHi6zf8gbftSd
does the patent have a number on the infringment notice, if so check this against the database. We had an issue like this some tme ago and when we checked against the patent database the company who issued the infringing notice didn’t even own the patent.
Seller_otCbjI8XlTQWk
Its something that is becoming surprisingly common, I have already fell victim to it also. Had an fairly generic and common product that has sold on amazon and eBay for over 10 years. I bundled into a pack of 2 as a private label and was selling rather successfully. Out of the blue, hit with a violation for design patent rights. The patent had been registered 2 months ago by some chinese company. Its dodgy but you can hardly blame amazon, they’re only really interested in keeping the company out of trouble. They get a report, they remove the content to avoid legal action themselves leaving it up to you and the third party to sort it between yourselves. Depending on how deep your pockets are, you could challenge the patent or seek legal action. I decided it wasn’t work the headache.
Seller_fBb7IEJM56koH
Also, since there are already TWO exact design patents registered, how is it for an idea if we get our own patent for the same design too? UK IPO is going to approve it anyway because at this point I’m pretty sure they do it completely blindfolded.
And then show that as a registered proof to Amazon to undo their mess. Just things popping up in my mind, lol.
Seller_fBb7IEJM56koH
Also, is it a good idea to write to Jeff directly?
Ash_AMZ
Hello @AJTech_Shop,
This is Ash from Amazon, and would assist you with your questions above.
From the post above, I understand that you have concerns on the Patent / Design rights.
Amazon does not allow listings that violate the intellectual property rights of brands or other rights owners.
A design is a form of legal protection for the appearance of the entire product or a part of it which results, in particular, from the characteristics of line, contours, colours, form, surface structure and/or materials of the product and/or its decoration.
According to EU and UK law, a design can be registered, but unregistered designs are also protected to some extent. Unregistered design rights are acquired automatically and with no need for formalities.
The unregistered EU design right is more limited in scope as well as duration (3 years) than the EU registered design right.
The UK unregistered design right is different to the unregistered EU design right – most notably, the UK unregistered design right lasts for a maximum of 15 years from when first recorded in a design document or (if earlier) from when an article is first made to the design.
You can learn more on the Amazon Intellectual Property Policy by clicking here.
*Important: You should consult a lawyer if you have a specific question about your IP rights or the IP rights of others.
Regards,
Ash.
