Brand Enforcement / 07.30.2020

Combating Rogue Sellers: Amazon to Provide Seller’s Identifying Information

By Jon W. Groza & Kyle D. Stroup

Rogue SellersThe Amazon Marketplace is constantly changing and adapting to consumers’ demands. Recently, Amazon announced that it will begin providing identifying information, including name and address, beginning on September 1, 2020, on a seller’s profile page for the United States Amazon Marketplace. Currently, Amazon makes this information available for the Amazon Marketplaces in Europe, Japan, and Mexico. Amazon’s United States marketplace change allows consumers to make a better informed purchasing decision. However, the change will have major implications for businesses attempting to enforce their intellectual property rights and control who is selling their products.

As the Amazon Marketplace has grown and expanded, rogue sellers began appearing. These sellers acquire a business’s products and begin selling the products on the Amazon Marketplace without authorization. This practice infringes upon the business’s intellectual property rights and steals sales from the business. Without enforcement, rogue sellers can run rampant on the Amazon Marketplace and other e-commerce platforms, providing poor customer service and offering inferior and outdated products. They tarnish a business’s goodwill, reputation, and intellectual property.

Currently, Amazon does not list a seller’s identifying information. Instead, the seller can elect to display that information on its seller profile. Or, businesses can request subpoenas under the Digital Millennium Copyright Act (“DMCA”). DMCA subpoenas have become a useful tool for businesses to enforce their intellectual property rights. The DMCA subpoena process, however, can be rather burdensome and time consuming. Typically, time is of the essence when targeting rogue sellers as they may have a limited supply of products and can vanish after selling out of the supply. Once a seller runs out of a business’s products, it has already stolen sales from the business.

With Amazon’s proposed change, businesses may no longer need to utilize DMCA subpoenas for unauthorized sellers on the Amazon Marketplace. It is important to note, however, that businesses seeking to enforce intellectual property rights must not limit enforcement to solely the Amazon Marketplace but other e-commerce platforms, such as Walmart.com and Newegg.com, as well. On other e-commerce platforms, a rogue seller’s identifying information may not be displayed.

From a business perspective, a brand’s options were previously limited. Unauthorized sellers could resell products without the business’s authorization and could do so without providing any identifying information. Once a DMCA subpoena is issued and a name and address obtained, businesses would then have the information necessary to demand that these sellers cease and desist from selling products without authorization. If they declined, the business may then elect to bring a lawsuit.

Now, with the identifying information already available, enforcement of intellectual property rights on the Amazon Marketplace will become more efficient. DMCA subpoenas to obtain a name and address may no longer be necessary. Instead, a business can begin sending cease and desist letters as soon as it recognizes a rogue seller. With DMCA subpoenas, a business needed to wait for a court to issue the subpoena. This waiting period is crucial as often times, a rogue seller can disappear, only to reappear months later with a new supply of products. Businesses can also better track who these sellers are in a given industry or market.

Currently, the level of accuracy required for the names and addresses is not known. Rogue sellers may hide behind fake identities and unmonitored post office boxes to escape receiving notice of infringement. However, Amazon’s announcement that it will provide identifying information on a seller page is a step in the right direction as businesses attempt to get a handle on unauthorized sellers.

To better understand how rogue sellers may be tarnishing your brand’s reputation, goodwill, and intellectual property rights, please contact Jon W. Groza at 216.736.7255 or by email at jwg@kjk.com or Kyle D. Stroup at 216.736.7231 or kds@kjk.com.

 

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