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A Prime Concern: Counterfeiting on Amazon

Posted in Advertising, Branding, Counterfeits, Infringement, International, Trademarks

-Wes Anderson, Attorney

Readers: find any good deals on Prime Day? For my part, I abstained. I’ve had a “Gold Box” deal sitting in the box for about 6 months now — turns out, I really didn’t need a pressure cooker.

If you did seize upon Prime Day, here’s hoping you got exactly what you ordered, and not a knockoff or counterfeit product. Amazon is generally very reliable, yet as it grows to unspeakably immense proportions, sales listings have become increasingly difficult for brand owners to police, and Amazon may not be much help either.

According to a CNBC report, counterfeiting on Amazon.com “has exploded this year, sellers say, following Amazon’s effort to openly court Chinese manufacturers, weaving them intimately into the company’s expansive logistics operation.”

This is a big issue for Amazon, a $348 billion dollar company, sixth most valuable in the United States.

One common problem arises from the “commingled” listing system on Amazon which bundles together multiple third-party sellers, including Amazon’s own fulfillment system, onto one product listing. Suppose you see a product for sale on Amazon for $20, while a third-party seller claims to offer the exact same product for $8. Which one to buy? The answer seems obvious – until a knockoff product (or blatant counterfeit) arrives at your doorstep instead.

Amazon does use bold language in its Anti-Counterfeiting Policy to assure consumers:

Products offered for sale on Amazon.com must be authentic. The sale of counterfeit products, including any products that have been illegally replicated, reproduced, or manufactured, is strictly prohibited.

But in practice, brand owners can face an onerous burden when it comes to addressing counterfeit sales of products. To cite a recent experience, upon discovering that knockoff goods were sold through a brand owner’s listing, Amazon was exceedingly unhelpful in removing the listing and taking any action whatsoever against the seller. We repeatedly received emails asking for the following information:

If you believe sellers are offering items different than advertised, please file a report with Seller Performance and provide an Order ID Number of a test buy that confirms your claim that these sellers are not offering the item(s) advertised.  You may contact the Seller Performance team through the following form:

http://www.amazon.com/gp/help/reports/contact-us

To facilitate an investigation, be sure you include the following information in your complaint, as applicable:

  • The ASIN/ISBN of the item’s detail page and the product title
  • The store or business name of the seller you are reporting
  • Your order ID (required)
  • A brief explanation of the violation (required)

Once all this information was provided, Amazon will assist with removing that specific listing, but likely will not take any broader action against the seller’s account or other marketplace listings. This is because sellers will frequently claim their knockoff product was simply “mis-listed” by Amazon and should not have been listed as the brand owner’s product. Too often, it seems Amazon is willing to give the benefit of the doubt.

You may also notice the reference to a “test buy” in the emails — indeed, Amazon has confirmed to us that brand owners (or their counsel) are required to purchase items from third-party sellers to prove they are counterfeit or knockoff products — even if they are sold at a fraction of the authorized resale price. This means that serial counterfeiters are likely to get away with their activities, as purchasing their entire catalog is a unsavory option for brand owners. And even if a single listing were enough to deactivate the seller’s account, they may spring up again under another account days later.

eBay has long dealt with counterfeiting issues, and now the same rule applies to Amazon – if it seems too good to be true, it probably is.