Everything you need to know about Amazon Intellectual Property Policy
Just the term Amazon Intellectual Property Policy can sound daunting to new sellers on the site, but there is fundamental information that can help navigate what might seem like a minefield. It is often Amazon sellers who use dropshipping and retail arbitrage who fall foul of Amazons Intellectual Property policy which leads to a product or account suspension.
In 2020 Intellectual Property complaints were the second most popular reason for an account suspension, 1 in 5 suspensions! The other 9 reasons can be found here.
Craig Gedey was an Amazon Seller before becoming Thompson and Holt managing partner, and helping suspended accounts be reinstated as quickly as possible. Here he outlines the key facts about intellectual property (IP), first using Amazon’s own definitions of each category before offering further information on each section. It is important to note that this is not legal advice however, and that you should consult a lawyer if you have a specific question about your IP rights or the IP rights of others.
Copyright
Amazon says: A copyright protects original works of authorship, such as videos, movies, songs, books, musicals, video games, paintings, technology-based works (such as computer programmes), etc. Generally, copyright law is meant to incentivise the creation of original works of authorship for the benefit of the public. To receive copyright protection, a work of authorship must be created by an author, and must have some amount of creativity. If you are the author of an original work, then you typically own the copyright in that work.
Protection usually arises at the moment of creation of a work, without a need for a registration, certification or other formal act.
In some European countries, there are optional registration systems available to creators (For example, Registro General de la Propiedad Intellectual in Spain; SIAE in Italy), but they only have an evidential or administrative function.
In Europe, each country has its own copyright laws, but all copyright laws prohibit the unauthorized copying and use of original works. There are also laws which prohibit the unauthorized import of products into the EEA or UK (and their sale therein). Refer the Parallel Imports section below.
Thompson and Holt’s Craig Gedey: “You might be able to sell someone else’s copyrighted work on Amazon if you have received permission from the copyright owner. But make sure the goods you are selling do not violate a copyright, or you are risking suspension and even possible legal consequences. Another key issue here can be photographs. Don’t just grab a picture online of a product you are selling without their permission. As long as you have the right to sell the product, take and upload your own images.”
In 2019 Thompson and Holt created a High Risk Brand List - What Not To Sell on Amazon, the list grew quickly and naturally as Amazon Sellers kept adding brands to the list that they had experienced issues with. In 2020 the demand for this list grew rapidly as many new Sellers wanted to avoid IP complaints, especially dopshippers and those sellers using retail arbitrage. They created IP-Alerts.com which is a unique piece of software that monitors Amazon Sellers account for any products or brands that are known to be problematic and issue IP complaints. There is a free 14 day trial available at ip-alerts.com which we would recommend every seller utilises.
Trade Marks
Amazon says: A trademark is a word, symbol or design, or a combination of same (such as a brand name or logo) that a company uses to identify its goods or services and to distinguish them from other companies’ goods and services. Put another way, a trademark indicates the source of goods or services. Generally, trademark laws exist to prevent customer confusion about the source of goods or services.
Example: “Amazon” is a trademark that we use for many of our goods and services. Other Amazon trademarks contain both pictures and words, such as the “Available at Amazon” trademark.
A trademark owner usually protects a trademark by registering it with a country-specific trademark office (e.g. DPMA in Germany; UIBM in Italy; INPI in France; OEPM in Spain; UK IPO in the United Kingdom (UK)), or with a cross-border office, such as the European Union Intellectual Property Office and the BOIP (for the Benelux region). Trade mark protection is territorial by nature, i.e. the geographic scope of protection for trade marks is limited and depends on the place of registration. For example, national trademarks do not protect the trademark owner at EU level, while EU trade marks give protection in all Member States of the Union.
In some cases and countries (not e.g. in the UK), a person or company might have trademark rights based on only the use of a mark in commerce, even though the mark was never registered. Those rights are known as unregistered trademarks and come into existence only under very limited conditions.
Thompson and Holt’s Craig Gedey: “Laws surrounding trademarks protect sellers of goods and services from the misappropriation of their trademarks by unauthorised third parties. But 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 an unlawful parallel import, you can use the trademark to market that specific product. However, the trademark owner can prohibit sales if the condition of the goods is changed or impaired after they have been put on the market. If you are ever unsure whether your use violates someone else’s trademark, you should consult a lawyer before listing on Amazon. And be wary of listing items as ‘similar to’ or ‘equivalent of’ trademarked products as that may also infringe trademark law. Amazon has extensive information on its website about trademark issues and it’s well worth familiarising yourself with all of them if you are selling products that could be affected.”
Patent
Amazon says: A patent is a form of legal protection for inventions. An issued patent grants its owner the right to exclude others from making, using, offering to sell, selling, or importing the invention into the country which granted patent protection for a fixed number of years.
Thompson and Holt’s Craig Gedey: “A patent is different from a copyright in that it does not protect the content of a creative work like a book or a picture, but protects a specific invention, such as a new way of making clothes or a new type of microwave. Again, if you are unsure about your content or product violation another’s patent, it’s always advisable to consult a lawyer before listing on Amazon. Recommended further reading can be found at https://www.epo.org/service-support/faq/basics.html.”
Industrial Designs
Amazon says: An industrial design is a form of legal protection for an original ornamental plastic form of an object or set of lines and colours that may be applied to a product. An industrial design protects the appearance of a product and is intrinsically linked to a product.
Thompson and Holt’s Craig Gedey: “If you have any doubts that you might be violating somebody’s design, try consulting with the manufacturer or distributor directly. Beyond that, again consulting a lawyer is advised before listing on Amazon.”
Utility Models
Amazon says: A utility model is another form of legal protection for inventions, but for so-called “minor inventions.” The registration system is similar to the patent system. Not all European countries have utility models, but Spain, Italy, France, and Germany have this type of IP right.
Thompson and Holt’s Craig Gedey: “In many ways this is similar to a patent, except that the requirements for acquiring a utility model are less stringent. Again it’s worth reading up on them if you have any concerns, at https://www.iprhelpdesk.eu/taxonomy/term/156.”
Designs
Amazon says: 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, colors, form, surface structure and/or materials of the product and/or its decoration. Any industrial or handicraft item including packaging, graphic symbols and typefaces qualify as a product. Parts of products that can be taken apart and reassembled can also be protected.
Design is territorial: a design owner usually protects a design by registering it with a country-specific office (e.g. DPMA in Germany; UIBM in Italy; OEPM in Spain); UK IPO in the United Kingdom) or with a cross-border office, such as the European Union Intellectual Property Office (obtaining a registered Community design).
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.
Thompson and Holt’s Craig Gedey: “The advice here is fundamentally the same as for patents, industrial designs and utility models. Your first point of reference if you are worried about issues should be directly with the manufacturer or authorised distributor - if that doesn’t ease your concerns then speak to a legal professional. For further details on designs see https://euipo.europa.eu/ohimportal/en/help.”
Parallel Imports
Amazon says: EEA - Intellectual property rights owners (in particular trademark owners, copyright holders and their licensees) may prohibit you from importing or selling their goods in the European Economic Area (EEA), if you sourced them from outside the EEA.
Where the rights owner has the right to prohibit you from selling their goods in the EEA, this prohibition applies even if the rights owner distributes the same product type in the EEA or does not distribute in the EEA, as long as the rights owner holds an intellectual property right in the EEA. Therefore, if you intend to list for example, branded products or media items on Amazon’s EU marketplaces which you source outside the EEA (for instance, in the UK or the US) or from unofficial channels within the EEA, seek expert legal advice and make sure the rights owner does not object to such parallel import. Otherwise, Amazon may be asked by the rights owner to take down your listings on Amazon’s EU marketplaces for IP infringement. Whether or not exhaustion applies may differ on an item-by-item basis so you should check the position in relation to each item you intend to list.
Parallel import of goods sourced outside the EEA for sale in the EEA with the rights owner’s consent could still affect customer experience if the non-EEA product differs from the EEA version in any way (e.g., packaging, warranty coverage, product variations). Describe your product appropriately to avoid negative customer feedback.
UK - The laws in the UK are very similar to those in the EEA. IP rights owners may prohibit you from importing or selling their goods in the UK unless you, your supplier or an upstream supplier have the rights owner's consent to sell the items in the EEA or UK (i.e. the products are "exhausted" in the EEA or the UK). It is important to note that a rights owner can prohibit the sale of an item that you sourced in the UK in Amazon’s European marketplaces outside UK if they have not consented to the sale of that item in the EEA.
Thompson and Holt’s Craig Gedey: “To make sure that you do not sell (illegal) parallel import goods, be careful only to sell products on Amazon’s EU marketplaces which you have either imported yourself with the rights owner’s consent, or which you have sourced from a supplier who has been authorised by the rights owner to import the products into the EEA or the UK marketplace, depending on where you are selling it. If the rights owner challenges your sales of products on the ground that they are illegal parallel imports, you will have to prove that these were imported or sold in the UK or the EEA with the rights owner’s consent - so to is always advisable to keep the invoices and any other documents for these products.”
Worried about an Amazon IP suspension?
Thompson and Holt would recommend that Amazon sellers use ip-alerts.com this software checks your ASINs and lets you know if any of your products are a high risk from an IP complaint.