“Is it all just stolen, eo, eo”? The Amazon policies for protecting intellectual property
As Die Prinzen once sang: “It’s all just stolen and taken, just pulled and robbed. / Excuse me, I took the liberty.” What might barely pass as an intertextual reference in art and culture can have far-reaching consequences for entrepreneurs and retailers: counterfeits, fakes, unauthorized brand usage, and such things are no trivial offense. In your own online shop, cease-and-desist letters end up in the mailbox. But Amazon also has policies to prevent the misuse of intellectual property.
In the worst case, merchants face complete suspension or deactivation of their seller account or the revocation of their selling rights, along with all the economic consequences this can entail. The overall seller performance becomes irrelevant, regardless of how good it may be and how low the cancellation rate or the number of late deliveries might be. Therefore, merchants should meticulously ensure that they do not infringe on intellectual property rights. Germany and the European Union, in particular, have relatively strict protection rights that every merchant should adhere to in order to avoid far-reaching legal consequences.
This article, however, does not deal with national or international legal frameworks, but specifically with the Amazon policies regarding intellectual property, trademark rights, and product piracy.
A legal consultation can only be provided by a qualified attorney! If in doubt, be sure to contact one.
Why is it important for Amazon to protect intellectual property?
Amazon itself operates in two roles: first as a seller of (its own) goods, and second as a platform that allows third parties to trade products. As a seller, Amazon must, of course, comply with the respective national copyright laws. But could it not be indifferent to the online giant if a seller commits a copyright infringement?
In fact, it is unclear to what extent compliance with the Amazon policies on intellectual property is monitored and enforced on its own initiative. European merchants, in particular, often have the impression that action is not taken frequently enough against counterfeits of branded products or other copyright abuses, especially regarding questionable offers from the Asian region.
The fact is that Amazon itself has a legitimate interest in ensuring that copyright is upheld on its marketplaces and that the authenticity of items is guaranteed. The company’s goal is always to provide the perfect customer journey – if a customer receives a counterfeit item instead of the original product, it leads to frustration and disappointment, which in turn encourages returns and payment refunds. Furthermore, such a customer may choose to order from the competition next time, resulting in lost revenue for the e-commerce giant, at least in terms of sales fees. It does not matter whether it concerns branded goods or private labels.
Another effect is that the actual rights holders also strive to prevent violations of their trademark rights. Not only can brand owners directly report infringements of their copyright, but they will also contact Amazon to enforce the policies for protecting intellectual property and to remove abusive listings such as counterfeit goods.
What is intellectual property at Amazon?
Basically, the online giant itself and any merchants are bound by the applicable laws of the respective country or economic area in which the goods are offered for sale. A seller operating on the German marketplace must therefore be familiar with and comply with German law. For members of the European Union or the European Economic Area (EEA), which also includes Iceland, Norway, and Liechtenstein, European laws also play a role.
This is also reflected in the Amazon policies for protecting intellectual property. The applicable copyright law and related legal provisions, such as patent law, are always decisive. Amazon organizes its policies into different sections:
In the following, we will take a detailed look at the areas and clarify what impact the Amazon policies regarding intellectual property have for you as a seller and what you can do if you are accused of violating these policies.
Copyright at Amazon
A characteristic of copyright is that it does not require any formal registration or similar action by the rights holder – unlike, for example, patent law. Generally, the creator of a work, such as an image or a novel, holds the copyright to it; they then possess the exclusive rights to exploit it.
Copyright applies to works of literature, science, and art (§ 2 UrhG), but in some EU countries, it also covers industrial designs and patterns (including Germany). Accordingly, it is prohibited to sell unauthorized copies, use protected original works without permission, or import such goods into the EEA.
Therefore, the Amazon policy for protecting intellectual property is also relevant for product images, which can also be protected by copyright. Even if sellers are authorized to sell a branded product, it does not mean that they can simply use the product photos of other sellers on the product detail page. However, images taken by the seller themselves may be used, as they hold the necessary rights as the creators.
How do I know if I am allowed to sell a product under copyright law?
There are various scenarios that allow sellers to sell a protected product – for example, a book. Amazon also addresses these in the intellectual property guidelines:
Attention! The principle of exhaustion in Europe only applies to imported items if they have been lawfully introduced or sold in the EEA beforehand, meaning by the rights holder or with their consent by an authorized person. Therefore, sellers should definitely pay attention to the credibility of their sourcing source to prevent parallel imports!
Trademark law at Amazon
Amazon also extensively addresses the topic of trademark infringement and trademarks in general in its policies for protecting intellectual property. These are generally protected and may not be used by others without permission.
Unlike copyright, trademarks usually need to be registered to be protected against unauthorized use. In Germany, the responsible authority is the DPMA, and at the European level, it is the EUIPO.
It is important to know that: trademark protection is always territorial. Those who have registered their trademark with the DPMA cannot expect to take action against unauthorized use in China. The protection pertains to the unauthorized use of the trademark, especially when it misleads customers, for example, regarding who offers the goods or who is associated with them.
Trademarks may be traded under certain conditions.
Registered, protected trademark products may also be traded by third parties – provided certain requirements are met. On the other hand, a trademark owner can also prohibit the use of their trademark. The Amazon policies for protecting intellectual property recognize various cases in this regard:
The good news for all Amazon sellers: This does not mean that branded products cannot be sold at all. Those who adhere to certain regulations can indeed offer branded goods on Amazon, even if they are not the trademark owner themselves. This must be
For example, anyone who wants to sell backpacks from Deuter can do so on Amazon according to the policies for protecting intellectual property, provided that the goods are indeed original backpacks of the Deuter brand and are offered under the brand name Deuter.
Similarity versus Compatibility
It is also generally permissible to mention a brand to indicate the compatibility of a non-branded product. For example, someone selling phone cases can inform customers that these cases are compatible with models from brands like Samsung, Apple, or Huawei.
However, it is not allowed to create a similarity! To stick with the example of phone cases: It is prohibited to state that the phone case is similar to that of Huawei or even better than those from Samsung.
To determine whether a product can be sold on Amazon, sellers should ask themselves,
Patents, Utility Models, and Designs
In addition to copyright and trademark law, Amazon also mentions patents, utility models, and designs in its intellectual property guidelines. All three forms of protection, like trademark rights, are territorial.
The first two are characterized by the fact that they do not protect a creative work, but rather a specific invention for a certain period. The inventor obtains the right through a patent to prohibit the manufacture and use, sale, and also the import of the invention. The same applies to utility models, although the hurdles for obtaining them are lower and the legal protection is less comprehensive.
A design, on the other hand, refers only to the appearance of a product. There is the option to register a design, which grants unlimited protection. However, unregistered designs can also be protected for three years.
If a product is protected by a patent, utility model, or design, the sale on Amazon may be prohibited if the seller does not hold the corresponding rights. Before a listing is created, it should be ensured that it does not constitute a “theft” of intellectual property.
What consequences can a violation of the policies have?
If you sell products that are legally protected without authorization, it can have significant consequences for you. On one hand, this can lead to legal issues – ranging from simple cease-and-desist letters to high damage claims and criminal penalties. On the other hand, Amazon itself enforces its policies for protecting intellectual property on the marketplace.
If Amazon receives a notice that a listing violates the policies or applicable laws, it will usually delete this listing and send the seller a warning notice via email. In the case of multiple violations, there may also be multiple warning notices.
Furthermore, the e-commerce giant reserves the right to destroy corresponding FBA goods in its warehouses – of course at the expense of the affected seller – and, if necessary, suspend the seller account. The payment to the seller by Amazon will also be withheld until the customer has received the ordered original goods.
File an objection – Provide evidence
However, Amazon makes mistakes – in the FBA warehouses as well as through false complaints from rights holders. Sellers who receive a warning notice can respond to this email and file an objection, for example, if they have never sold this product or if they are authorized to sell the goods.
In the Amazon policies for protecting intellectual property, the company points out that in such cases it needs evidence: “If you believe that a rights holder or Amazon has made a mistake in removing your product listings due to a copyright infringement, please respond to the notification email and provide specific reasons why you believe an error has occurred. If applicable, provide an invoice or order number that proves the authenticity of the product.”
Another option is to contact the original rights holder and ask them to withdraw the complaint.
Account Suspension: Develop an Action Plan
The situation becomes more difficult when the seller’s account(s) have already been affected by a deactivation. In such cases, Amazon usually requires a so-called action plan from the seller, which must include various information. In the intellectual property guidelines, Amazon states that it wants to know the reasons for the unlawful sale, as well as what steps the seller is taking to prevent such legal violations in the future.
The action plan is a popular tool used by Amazon, which is also employed in many other cases of violations of the rules on the online marketplaces by the company. Affected sellers should not take the creation of this lightly. Communication with Amazon remains difficult, and solutions are always preferred by the online giant over justifications. It may also be worth considering reaching out to a professional, such as a specialized agency. More information can be found in our How-to: How do I create an action plan for Amazon?
Affected parties can find detailed information on the enforcement of Amazon’s policies for protecting intellectual property on the help pages in Seller Central.
Conclusion: Intellectual property rights should definitely be observed!
As we have seen, a violation of Amazon’s intellectual property policies can have serious consequences. Not only does the e-commerce giant issue warning notices, but product listings are deleted, FBA items are destroyed, and in extreme cases, the selling rights can be irrevocably revoked. The overall seller performance no longer matters, regardless of how good it may be and how low the cancellation rate or the number of late deliveries might be. For sellers who primarily generate their revenue through Amazon, a suspension of their seller account is akin to a disaster.
Even outside of Amazon, a violation of copyright or trademark rights can cost a lot of money and nerves, for example, in the form of cease-and-desist letters. Sellers can avoid this through thorough product research and precise wording on the respective product detail page. When in doubt, it is always advisable to consult a lawyer.
Image credits in the order of the images: © peshkov – stock.adobe.com / © tiero – stock.adobe.com / © Ānanda – stock.adobe.com / © REDPIXEL – stock.adobe.com / © Brad Pict – stock.adobe.com
