This post is by CJ Rosenbaum, Partner and Managing Attorney at Rosenbaum Famularo, P.C.
At first glance, intellectual property law can seem a frightening subject for online sellers. But, in reality, it’s not as complex as you may think. In fact, there are just two main areas that sellers need to know about – developing and protecting their intellectual property rights.
The development of your intellectual property rights includes creating trademarks, understanding copyright, obtaining patents and designing enforceable trade dress. Once you’ve developed these, protecting your rights simply covers how to spot violations of your intellectual property and what to do about them.
In this article, we’ll cover all the basic information that Amazon sellers need to know about intellectual property law. We’ll look at the ways your listings and products are protected, how to enforce your rights and how to remove listing hijackers.
View Top Amazon Seller ToolsUS trademark law for Amazon sellers
As soon as you see any of the logos in the picture below, you know what you are going to get. For example, when you see the Golden Arches, you know it’s McDonald’s and that the french fries will be awesome. That’s what a trademark is all about. It’s a unique combination of words and images that indicates what the product or brand stands for.
Sellers need to know at least the basics about trademarks in order to protect their brands and avoid violating the intellectual property rights of other sellers. The most important thing to remember is that you can’t copy or use another company’s mark or logo on your products. So for example, you can’t take the Nike swoosh and print it on your own t-shirt. That would clearly violate Nike’s intellectual property rights.
Developing your own trademark
There are good ways and riskier ways to go about developing your own trademark. One of the riskier ways is to use online freelance sites. It is common practice for these services to use other marks as a sample and they may even sell the same mark to multiple Amazon sellers. The issue with that is that you’re only going to find out further down the line, when you’ve been selling your products for a while, that there’s a problem with your mark.
A much better solution is to use a graphic designer to create the mark from scratch. It might be more expensive but this way you can be sure that the logo or trademark is original. Even then, never invest heavily in creating a mark without making sure that it doesn’t violate anyone else’s. If you’re unsure, you should check the United States Patent and Trademark Office (USPTO) and even get an opinion letter from a lawyer, stating that your trademark is okay to use.
Sourcing branded products
In the US, sellers have the benefit of the First Sale Doctrine. This law states that you do not need a brand’s permission to sell its products, as long as the products aren’t “materially different” from those sold by authorized sellers. So, if you buy a truckload of Starbucks mugs from a distributor that had excess inventory, as long as you don’t make any changes to the products, you are not likely to be violating anyone’s rights in the US.
Before you order a large amount of inventory though, do your research. You need to make sure that the stock is genuine and doesn’t violate another seller’s trademark or intellectual property. This can make sourcing from Alibaba a dangerous practice, especially if you’re selling on Amazon.
If you get an inauthentic claim made against you on Amazon, then you will have to provide supplier invoices for that stock. If these are from Alibaba, you’re dead in the water. In fact, we always say that if you’re suspended for an inauthentic claim, and have sourced from Alibaba, you need to get documentation straight from the factory instead. This will carry more weight with Amazon.
As a side note for UK sellers, while I am not yet a solicitor and cannot provide legal advice outside the US, it is my understanding that in the UK, brands do have the right to withhold permission to sell their products.
US copyright law for Amazon sellers
When it comes to US copyright law, there are two areas which online sellers need to know about: images and verbiage. Essentially, this means that you can’t use someone else’s images or cut and paste their listing text.
Images
If you are creating a listing on Amazon or any other marketplace, you can’t use pictures, images or drawings that you did not create or purchase.
Many sellers make the mistake of using product images that the brand owns when they create a listing. But this is use of someone else’s images and, even if they were in the public domain, it is a copyright violation. Even you take someone else’s images and alter them, it’s still a copyright violation. So be safe and if the image belongs to someone else, don’t use it without their permission.
Where copyright law does become difficult, is that it differs depending on whether you created your own listing or connected to an existing one. This issue causes a real split in the US and different courts will often rule differently.
In certain areas of the US, if you are selling on a listing that uses someone else’s images, regardless of whether you created that listing, you would be seen as violating their copyright. In other states though, as long as you did not upload the offending image, you are not violating anyone’s copyright.
Listing text
When creating your listing text, copy-and-paste is not the right way to go. You can’t just simply take the text from someone else’s listing and pass it off as your own. Copying someone’s listing text is one of the easiest copyright violations to spot and probably the hardest to defend.
So, yes, you can use other people’s listings as a guide but you need to change it and make it your own. You can say something that’s very similar and get the same message across, but don’t use exactly the same words. If you take these steps you should create listing text that doesn’t violate anyone’s copyright.
