Listing Removed - Received IP Complaint (Unauthentic Product / Trademark Infringement)
Received IP complaint of “unauthorised use of trademark, unauthentic product” for an item I was re-selling. Just want to check my understanding here:
Background:
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I bought a single item (car interior item) July 2019 on my Amazon personal account. Sold by the seller, (Chinese, EU trademarked brand), fulfilled by Amazon U.K. Delivered to my previous address.
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Ended up never needing the item so it sat in storage, unopened, and in the seller’s original packaging (branded plastic zip bag). Unfortunately, the return date was well past.
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After a house move and other stuff going on, last month I finally decided to get rid of the item, and listed it on Amazon through my seller account, via the “Have one to Sell?” button.
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I used the original seller’s listing (as per Amazon guidelines) and left all details unchanged.
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I set the quantity to 1, condition to “New”, and the price as desired. (Much less than what I bought it for. Plus I’m on a non-pro account so have to take into account delivery cred etc).
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Just wanted rid of the single item. Be a shame to throw it away as it looks an alright product and is in mint condition. Thought may as well reclaim a bit of money.
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A week or so after listing, I receive an IP complaint in my account health by the original seller. Reason “Infringement” and “One or more of your listings is infringing the intellectual property rights of others. We received a report from a rights owner that the products below are inauthentic. The rights owner is asserting that the products infringe the following trademark:”. I can understand why as they’ll not realise I legimitaly bought it first under my personal account. Bit silly though as I was only selling a SINGLE one and wish they’d checked it was actually inauthentic first before throwing out a complaint, but fair enough.
Action:
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So of course I appeal it, submitting the Amazon Order confirmation, Packaging Slip, Council Tax Bill for the year (showing I resided at that address at the time, as my seller account now has my new address), and a picture of the item, showing it’s mint condition in original branded packaging.
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I also e-mailed the seller explaining the situation (re-selling a single item that no longer needed, legimitately purchased from themselves) along with a picture of the item to verify that it was in-fact, genuine. They agreed to retract the complaint (though have not yet actually done so), but stated “Do not sell it again”. < (I don’t think they’re in the right to stipulate that but whatevs, irrelevant at the mo).
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Amazon reject the appeal stating “documentation not provided or invalid. Please submit letter of authorisation, invoice blablabla”. So I re-submit with better highlighting and in the proper “Plan of Action” format, with policy research etc (see next post).
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[I am here]. Reading these forums, Amazon will probably reject it again, but what more can I do? I don’t have an “Invoice” as the item was purchased through my personal account so the seller was not obliged to provide one. I think it’s pointless requesting one as it’s the same seller who made the complaint in the first place and they clearly don’t want competition (even though I don’t have more than 1 unit, lol).
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All I have for proof is the Amazon order confirmation & packing slip. I’ve fully deleted the listing for now while this is ongoing, but don’t think I can do any more. Hopefully I’ll not be stuck in a loop forever. I’m thinking the purchase date (just over 365 days) might be an issue, but it doesn’t state any date requirement on the complaint, the appeal response, or in the listing policies & guidelines.
I’ll post my policy research in the next post, but if anyone is so kind to read all this, is there anything I’m missing here? As far as I can see, re-selling a single, genuine, legitimately purchased and correctly marketed item that meets the condition criteria is not “trademark infringement”, and is fully supported by Amazon since the “Have one to Sell?” button actually exists.
Surely sellers can’t just shut down any and all competition they feel like, just because they feel like it with no actual evidence, can they?..
47 replies
Seller_tKLSFTtx6f51Y
Ok so regarding whether my listing approach was correct and the validity of the complaint:
Amazon Intellectual Property Policy:
https://sellercentral-europe.amazon.com/gp/help/G201361070
"4. Do I always need the rights owner’s permission to use a trademark?
Just because you are not the owner of a trademark does not necessarily mean that you cannot sell the rights owner’s product. If the product is genuine, and not a parallel import, you can use the trademark to market that specific product.
Example: If you are selling a genuine Pinzon sheet set and you are advertising the product as a Pinzon sheet set, you are not infringing on the Pinzon trademark."
My Compliance: (redacted)
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As I am selling a genuine [brand] [product], and I am advertising the product as a [brand] [product], I am not infringing on the [brand] trademark.
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The product was listed under the seller’s original listing with all details unchanged proves the trademark not violated. This meets Amazon’s guidelines for listing products.
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As there is only a single, genuine item to sell, and the condition of goods is unchanged and unimpaired, there should be no legitimate reason to oppose the use of the trademark.
Amazon Condition Guidelines:
https://sellercentral-europe.amazon.com/gp/help/200339950#auto
“Automotive
* New: Just like it sounds. A brand-new, unused, unopened item in its original packaging, with all original packaging materials included. Original protective wrapping, if any, is intact. Original manufacturer’s warranty, if any, still applies, with warranty details included in the listing comments.”
My Compliance:
- As my item is brand-new, unused, unopened and in it’s original packaging (See Original Item.jpg attachment), this should meet the criteria for listing as “New”. As the condition of goods is unchanged and unimpaired, there should be no legitimate reason to oppose.
Can’t see anything else prohibiting re-selling genuine items under the original listing, marketed correctly etc. I did wonder whether I should have put “Used - Like New” for the condition, but as above, it seems to meet the criteria as described in the guidelines. Once again, am I missing something?
(This isn’t my main sort of product I sell. This is just an extra I bought for personal use, but never used, so wanted to re-sell it to get rid and recoup a few quid. Didn’t think that would be a problem as long as I used the correct listing details etc.)
Seller_NoLYurmb006tq
Hi - so the item would have needed to have been sold as second hand and you would have also needed brand approval as it sounds like its restricted from resale.
Re-selling items bought from Amazon is prohibited, Amazon will only accept invoices from UK wholesalers as valid proof also.
You need to admit your errors and just advise you now know what cant be done and that you wont going forward etc.
Seller_tKLSFTtx6f51Y
Also if re-selling is completely prohibited, wouldn’t arbitrage selling not exist? And I’m not even doing that as I’m selling this at quite a “loss”. Just wanting to get rid of it and scrape a few quid back in the process, rather than binning it. Original intention when buying wasn’t to sell, it just ended up unopened and unused.
I found a point that re-selling items bought through PRIME is against the Prime ToS, however I’m not a prime member so that shouldn’t apply.
Surely re-selling of legimitate products in the U.K is permitted by the exhaustion principle and first-sale doctrine? The only outstanding complaint seemed to be around authenticity and checking it was from a reputable source, which I’d have thought Amazon.co.uk FBA would surely be a reputable source, and their own order confirmation sufficient evidence of that…
Seller_tKLSFTtx6f51Y
(Sorry for the multi-post, but unable to edit after 5 mins)
Looks to me like the “exhaustion principle” (first-sale doctrine equiv) states the original distributor’s IP rights are exhausted upon receiving reasonable renumeration for their copy, (my purchase).
I can’t find anything prohibiting re-selling, if anything it’s the opposite! As soon as you “own” the product, you have a right to re-sell, as long as it is described correctly and you’re not passing it off for something it is not. If a trademark is involved and the product is described as per the trademark and in the correct condition, no infringement is made and there should be no reasonable objection.
There’s the question of what defines “second-hand”, but I can’t find anything that specifically states that is known as “Used” on Amazon. The condition guidelines for “New” simply state unused and with all packaging and warranties (not applicable for this item) are intact. Which is the case here. I listed the correct quantity, which is 1.
The problem I think I’ll face is getting through the appeal bots. In that I only have an order confirmation, not an invoice (nothing I can do here as one wasn’t provided, but the order # / confirmation should be evidence of authenticity!) and that the order confirmation is over 1 year old. However, Amazon’s request for doc doesn’t state any sort of timeframe for documentation, nor for listing as a specific condition.
Unless I’m still missing something!
THE PRINCIPLE OF EXHAUSTION
The principle of exhaustion is an established international legal doctrine. It provides that a copyright owner’s right to control copies of their work “exhausts” on its first sale by the copyright owner or with their consent. The principle prevents the copyright owner’s right to control copies of their work from extending beyond the point at which they receive reasonable remuneration for the copy. Further, it allows the purchaser to have control over their copy, including the right to resell it free from interference by the copyright owner. In the UK we have codified this principle in national legislation. Sections 16(1)(b), 18(1) and 18(2) of the Copyright Designs and Patents Act 1988 (the CDPA ) establish the copyright holder’s exclusive right to issue (i.e. distribute) copies of their work to the public and provide that infringement shall occur where a third party encroaches on this right. Section 18(3)(a) sets out the principle of exhaustion by stating that the subsequent distribution of copies of a work (such as selling on a purchased copy second-hand) will not infringe the rightholder’s distribution right.
Seller_tKLSFTtx6f51Y
Indeed I was just trying to ascertain basic “should you be able to do this” rights. I’ve scoured as much as I can, but I can’t find anything that says you CAN’T resell products on Amazon, in-fact most evidence seems to support it instead! Seems to be only drop-shipping that’s discouraged, which isn’t the case here.
The law aspects were also regarding the exhaustion of IP rights on first sale, as has been done so here. There’s only an IP issue if the product is unauthentic.
As to proving authenticity and valid invoices, one wasn’t provided! Nor is the seller liable to in this case. Reading other threads, Amazon mods state Amazon Order Ids should be sufficient. I provided both the Order #, PDF of the Order summary, Packaging Slip, and proof of address. And the seller themselves was the one who originally sold it!
Regarding the “restricted” tag, is there anywhere that this is displayed? I can’t see anything in this case, it just seems the seller has privately taken offense to anyone but him selling on that listing. (Which is the correct thing to go, as cloning the listing would be against ToS).
Seems to match the “New” description as per the Automative section due to original packaging being intact. It isn’t software or anything so re-selling doesn’t immediately disqualify.
I agree with what you’re saying in terms of “this just happens”, but everything I can find seems to be by Amazon’s policies, and law. So unsure where the problem actually is, other than a seller wanting sole rights on the listing, which goes against the principle of Amazon being a catalogue, doesn’t it?
If there’s anything that specifically states I’m in the wrong or something I’ve missed, fine I’ll hold my hands up. But a tad wary of admitting fault to something I’m not sure that I’ve done, and there’s still the matter of the IP infringement remaining on my account. Will see what the next appeal outcome is, but reading threads on here I’m expecting to get stuck in the typical loop.
Seller_NoLYurmb006tq
This is probably a good example so if I buy it injur myself and deep it was due to a manufacturer fault so it can’t be dealt with by manufacturer and then the only option is to take you to court for all your money… That’s the kinda of scenarios which is why the law prevents such things
But yea all you can do is admit your in the wrong and move on
Seller_tKLSFTtx6f51Y
That’s the point, I AM researching and I have linked specific policies and laws that evidence my argument, I’m not seeing anything written & official to the contrary. That was the whole point of posting here, to see if there’s anything I’m missing! I can’t just go by opinion as there’s so many conflicting arguments on the seller forums.
Warranty is a good point, and that is specifically covered under the definition in Amazon’s condition guidelines:
New: Just like it sounds. A brand-new, unused, unopened item in its original packaging, with all original packaging materials included. Original protective wrapping, if any, is intact. Original manufacturer’s warranty, if any, still applies, with warranty details included in the listing comments.
“If any”. There was no specific warranty on this product, no warranty details were received with it. If there were, I would pass them on with the product (as it is unused, unregistered and unopened), which would comply with the condition guidelines as above. If there is a manufacturer’s warranty, that would apply as per the listing comments. If it was a warranty provided by the seller than fair enough it could be classed as materially different, and the “New” status may not apply.
Same with IF the product was some sort of digital media or other category where it is classed as “Opened” as soon as purchased. This is not. Once again, why would the condition guidelines say what they do, if that isn’t the case? It would say “New - Only brand new items direct from a manufacturer, wholesaler, or specifically licensed distributor”. Not “New, unopened with original packaging / warranty blablabla”. This is why I’m having trouble understanding where I stand.
I understand some products have “gated” categories or are on the list of brands Amazon has a special agreement with, but this isn’t gated and we’re talking literal Ali-Express tier stuff here so I highly doubt there are restrictions. However to double-check, is Seller Support the correct place to ask about this? I can’t find anything else online besides a few unofficial lists (that all have only big brands).
Otherwise, I’m still not seeing anything contrary to what I’m arguing, only Amazon’s OWN guidelines and policies which back up that statement! The fact that the product is authentic is evidenced by it being purchased from the original seller, through Amazon in the first place! (Unless Amazon / the seller themselves are selling knock-offs of their own product!).
If I see something written saying can’t list “New” for unopened (but re-sold) genuine products in this category, I’d happily list as “Used - Like New”, if that’s the correct one to use. (Even though it isn’t “Used”).
If I see something written saying I can’t re-sell at all, then I won’t. Just unfortunately you keep telling me to research, but besides personal opinions on forums, everything official I’ve found is saying otherwise, unless once again I’m missing some extra policy or definition somewhere?
Warranty is a point, but the complaint wasn’t about this, it was about authenticity. “Detracting from the luxury image” of the product would be an argument, but this was not the argument, and it is not a luxury brand, it is literally only sold on Amazon and Aliexpress…
Seller_tKLSFTtx6f51Y
I pasted the warranty/condition section straight from Amazon’s own condition guidelines…
Once again you keep telling me I’m wrong and to “check the policies”, but I’ve literally pasted the bits from the policies that apply and they say this is ok?
Amazon’s IP Policy LITERALLY STATES:
You might be able to sell someone else’s copyrighted work on Amazon if you have received permission from the copyright owner or if your use is protected by the so-called exhaustion principle. The exhaustion principle generally permits the resale of a genuine, lawfully purchased physical item (such as a book or CD) without permission from the copyright owner. But in Europe, the principle only applies if the concrete product (item) in question was imported or sold previously in the EEA with the copyright owner’s consent, i.e. by the owner or by someone he authorized to sell.
Example: If you decide to sell a used copy of someone else’s book on Amazon, you are selling someone else’s copyrighted work. If you bought the book from the publisher in the EEA, or from an authorized distributor of the publisher in the EEA, you are usually protected by the exhaustion principle. But if you bought the book outside the EEA, you are probably infringing copyright by reselling it in the EEA.
https://sellercentral-europe.amazon.com/gp/help/G201361070
I bought the item from an authorized distributor (the brand owner themselves), through Amazon’s U.K store, fulfilled by Amazon. This should comply with that requirement.
Regarding selling as “New”, once again:
New: Just like it sounds. A brand-new, unused, unopened item in its original packaging, with all original packaging materials included. Original protective wrapping, if any, is intact. Original manufacturer’s warranty, if any, still applies, with warranty details included in the listing comments .
https://sellercentral-europe.amazon.com/gp/help/200339950#auto
How does my re-sale of the unopned item not comply with both those requirements? Other than personal opinion.
Once again this is not Lego or some ginormous brand. It is sold only on Amazon & Aliexpress… The condition of “New” wasn’t the complaint. An accusation of authenticity was the problem. To my understanding (and as stated by mods on here), the Order ID should suffice as evidence of otherwise.
Seller_tKLSFTtx6f51Y
Fair enough I respect your opinion, but I’m still not seeing the policy that backs up your side of the argument?
I’m honestly not seeing how I’m reading into the context of:
The exhaustion principle generally permits the resale of a genuine, lawfully purchased physical item (such as a book or CD) without permission from the copyright owner.
And respecting the condition guidelines as they’re written.
I’d LOVE to find out where I’m going wrong if the appeal is rejected again, but I have to go by what’s written!
We’ve gone through the “IFs” (Warranties, gated categories, big brands using the “Luxury aura” principle in a private agreement with Amazon etc.), but all are not applicable to this case.
This is a small seller being territorial over their brand / listing of a literal AliExpress item…
Seller_NoMNQDGnEW5Bx
it isnt (to my knowledge) against amazon policy to buy and resell on Amazon but once the item is resold it becomes used - like new rather than new. If you had listed on the brand as used I dont think they can control it but if they are a registered amazon brand they can request you are removed off the listing even if you bought it from them in the first place.
