Season 1, Episode 7
What is “Suspected” IP Infringement?
ASINs are getting suspended left and right for “potential” (read: often imaginary) Intellectual property infringement violations, and sellers are searching for answers. You need strategies to defend yourself against this automation and human error combo! Opening cases with Support or sending emails to Seller Performance won’t get you anywhere, unless you enjoy copy and paste generic “responses.” Every kind of seller, both private label and resellers, need to learn up on these to resolve appeals properly. Mistakes cost time, energy, effort, and make you frustrated! We discuss all manner of cases and reinforce the methods for identifying true fixes for this.
[00:00:01] Chris: Hey, everybody, welcome back to the Seller Performance Solutions podcast. I’m here with Leah McHugh. My name’s Chris McCabe. We’re here yet again to talk about another zany, crazy suspension problem with Amazon selling: suspected IP infringement complaints, I guess. But there aren’t complaints. That’s the funny thing. These are proactive bots that are taking listings down because Amazon thinks there might be an IP Infringement coming. Is that how we’d define that?
[00:00:34] Leah: Yeah, I mean, not just listings. They’re taking accounts down for this based on some algorithm suspecting it, I guess.
[00:00:42] Chris: Machine learning slash artificial intelligence. I mean, this is one of the crazier things we’ve seen. Maybe we should preface this with; there’s lots of bots, there’s lots of automation. There’s lots of crazy messaging going on. But the biggest reason to talk about this today is because they have gone from just suspending individual ASINs, which they’ve been doing for a while, to suspending the entire account. Just for this, just for suspected IP.
[00:01:06] Leah: Without warning. I was speaking to a seller the other day whose account was deactivated for suspected IP infringement, and they had received no warnings prior to the account suspension. They just took the account down, which is scary.
[00:01:18] Chris: And we’re going to have podcasts about crazy stuff that goes into this bucket. This to me is similar to the permanent funds hold, without justification.
[00:01:27] Leah: We’ve decided we’re keeping your money…
[00:01:29] Chris: where it’s just like, we decided we like your money and we’d like to keep it and it’s keeping us company and we want them to stay. Suspected IP infringement, we had some people lose some listings last year, but they weren’t interested in selling those items. Or they said, well, the overall account health is what I’m worried about, not the individual suspected IP. Then we started getting people losing key ASINs. There was no reason they should have those listings taken down because they were sellers that had agreements, sometimes licensing agreements with the brand, with the manufacturers. So Amazon is being preemptive because they’re trying to prevent received IP complaints. But there weren’t any coming, because these were sellers listing correct items. And some of it’s just the words, right? The trademark misuse is just the bots going out of control, misreading a word, right?
[00:02:15] Leah: Yeah, and like you said, with licensing agreements, they’re allowed to use that brand or trademark in their listing. It just may not be the brand in the brand field on the listing because they’re licensed to use that trademark, which I guess whoever made the code for this didn’t think of as a possible scenario when they were putting this together
[00:02:37] Chris: Well, they’re trying to target resellers that have no relationship with brands or rights owners, that have no permission to use the trademark, to use a logo. And how do you know that? Amazon doesn’t know what written agreements you have with that rights owner. So they’re doing this preemptively. The usual shoot first, ask questions later, where they suspend the listing and then, in some cases, the whole account. I was dubious at first when I heard some of these stories. I thought they may have received I P complaints they hadn’t resolved. Maybe they had authenticity. I’ve looked at specific seller accounts. They only have suspected infringements, and we had them call account health to find out what’s the story. And that’s what account health reps said too. Just that it was suspected.
[00:03:23] Leah: Yeah, and a lot of them have relationships with the brand. So then they asked the brand, and the brand had no idea what they were talking about. They hadn’t made a complaint.
[00:03:31] Chris: The insane thing is you can’t, I mean, at that point, you are going to the brand to try to get something in writing, saying, “Hey, this isn’t violating our rights. And also, by the way, we never submitted an actual IP claim or complaint against this party.” You can get that on letterhead. I mean, if you’ve got a relationship, you have a licensing agreement with the brand. You should be able to produce that letter. But why should you have to do that? Why is Amazon forcing you to do this busy work just so they can protect themselves from having an administrative task of IP claims?
[00:04:02] Leah: Well, it’s not just busywork, because in the meantime they’ve taken your listing down. So you then have to quickly get the documentation and then hope that Amazon decides to review it in a timely fashion while your ASIN is down.
[00:04:14] Chris: What are you supposed to put in the plan of action, though? If your whole account is suspended for this, what are you supposed to put in the root causes?
[00:04:20] Leah: That’s what I wanted to ask you. Because the listing suspensions that I’ve seen, they don’t give you a space to put a POA, it’s just documentation submission. So there isn’t even a place for you to explain why you’re using that brand and why you’re allowed to. It’s purely just, they want documentation.
[00:04:38] Chris: But some of the sellers we’ve talked to have called Account Health and the first words out of their mouth are, “You need a plan of action to show how you’ll avoid IP infringements in the future.” But these aren’t received IP.
[00:04:49] Leah: But there’s nowhere to submit it because you can’t submit via email anymore. You get the, “This is the incorrect place” email
[00:04:55] Chris: The format stuff is all chaotic. Some people are putting it in a word doc and attaching it like they would like an invoice. I’ve seen that going on.
[00:05:04] Leah: My concern with that is that this is already automated, and I am fairly certain that they’re automating the documentation review for compliance docs. So if they’re automating the documentation review here, if you submit a word doc, that isn’t a document, that could then just, like, automatically reject your appeal.
[00:05:22] Chris: Yeah, interchangeable use of P O A. “Well, add a POA to this”, and then you look at the message, and sometimes it’s just asking for invoices.
[00:05:31] Leah: There’s just nowhere to put any text.
[00:05:33] Chris: Yeah, The interesting thing is, if there hasn’t been a violation, what are you supposed to put in any kind of an appeal? Like an admission? A lot of sellers are trained to think in terms of, “I need to admit wrongdoing. Whether or not I did anything wrong.” They do give you that little line at the bottom that says, if this is an error, if this is a mistake, so of course you’re going to try that first. But what happens when you appeal it as an error? Most of the time, you just get a canned copy and paste answer that says the same thing as the original message.
[00:06:03] Leah: A lot of times, the link that they give you to appeal if it’s an error, is the wrong place to appeal anyway. Like a lot of times, it’s a seller performance issue, and the link takes you to seller support, who can’t do anything about it anyway.
[00:06:14] Chris: That’s what people are doing. They’re opening cases with seller support
[00:06:18] Leah: and Seller Support are like, “I don’t know.”
[00:06:21] Chris: I mean to answer the question of, what do you do when you get stuck in this situation? I mean, what we’ve been doing on the good handful of these that we’ve had is we’ve been escalating them early and often. Because getting it into a higher-level employee or a managers hands, or if the managers teams are ignoring it, a VPs hands, you at least have a chance that somebody has a clue what’s going on. As opposed to my former teams, who are just kind of like pre-programmed robots at this point, who are probably taking a quick look at something. Maybe they don’t even know why you’re suspended for suspected IP infringement. Either way, they’re likely to pump a message back to you that’s just generic copy and paste, that asks you for the same invoices, the same proof that you haven’t violated the rights ownership that was in the earlier message. So I guess you can go to the rights owner and get that documentation. That’s a good play. But like Leah said, what goes in the appeal?
[00:07:15] Leah: Well, another interesting thing I saw the other day, which isn’t really surprising, was that somebody got an email saying that their listing was taken down for suspected IP violation, and then it didn’t say what IP they were potentially violating. So then you just have to try to figure out what brand they think that you’re infringing on.
[00:07:34] Chris: Some sellers, so I talked to some people who were calling account health and trying to get it out of them, saying, like, “Do you have some brand names annotated on my account? Do you have some ASINs? Do you have anything there that says?” The funny thing is, not so funny. But the interesting thing is, sometimes there’s a complaint ID but there’s no infringement type.
[00:07:52] Leah: Well, we’ve been seeing the complaint ID on things that didn’t have a complaint for a while. Like I’ve been seeing that on a lot of the listing compliance ones, where there’s a complaint ID, but it doesn’t necessarily mean somebody made a complaint. It’s more that that’s the original flag that happened,
[00:08:09] Chris: So you have to run a lot of interference. You have to do a lot of the work that these teams are supposed to do before they send you these things. You have to kind of do it yourself, unfortunately. Do some research, call account health. Obviously, if they want supply chain documentation, hopefully you have it to present. But if you have proof not only that the items are authentic, but that you’re sourcing it from the rights owner- the rights owner knows that you’re selling these items on Amazon. You want to show a copy of that licensing agreement even if that party never submitted an IP claim against you. I know that sounds kind of crazy, but Amazon has never been good at the notice team process, the rights ownership, back to my days when I was there. I mean, we were a little bit better at it than but they’ve tried to automate it, and they’ve gone downhill ever since.
[00:08:53] Leah: I can’t remember if it was you or Michael that was telling me about the first notice case that you received when you were working there. No one had told you guys that those were going to start going to your team. And you didn’t know until you received one and were like, “What is this?”
[00:09:06] Chris: Well, people were taking generic items and putting their own, branding those items, and then accusing each other of violating each other’s rights ownership. That’s kind of where it started. Things like that where Sellers didn’t even know that was a thing. So my suggestion, by the way, which I’m sure I have witnesses for this from 8-9 years ago, was to get legal related cases on like an Amazon legal team.
[00:09:31] Leah: That would make sense, yes.
[00:09:33] Chris: You could have, I mean, we were fraud investigators. We were seller performance investigators. We weren’t paralegals, and we weren’t necessarily legally trained on all facets of rights ownership. So again, back 8-9 years ago, I was sort of amazed that my boss and our team’s management were telling us, “Yeah, just handle these like you would other investigations.” When I didn’t know, back then, the ins and outs of trademark or rights ownership. Obviously, I knew what counterfeit was. But the ins and outs of copyright? I’m sure 9, 10 years ago I didn’t know what a DMCA counter notice was.
[00:10:04] Leah: Sure, and then you get into things like patents, which are, fairly complex legal issues.
[00:10:10] Chris: Yeah, I mean patents, I definitely couldn’t have even told you more than the basics that an Amazon seller nowadays would be walking around knowing. So my suggestion was, whenever we were in these meetings, like, isn’t there like a squad of like paralegals we can have work with Amazon legal in these? Nope. This isn’t in Amazon legals purview.
[00:10:31] Leah: Surely they have plenty of lawyers on the payroll that could have taken a look at these.
[00:10:36] Chris: They do now. They do now, and those teams end up getting, if it’s a legal issue that ends up involving Amazon itself, they get involved anyway. So, of course, they’re trying to keep it from happening and keep their distance. But the suspected IP infringement bots we don’t know a lot about which engineers were sitting with which Amazon manager, trying to sort out the best way to approach this. This is Amazon’s pre-emptive strike against so many IP claims, which they’re drowning in, obviously, these infringement claims. So it’s good for them. In a sense, it helps them reduce some workload. But it just piles it on your shoulders and makes it ugly for you.
[00:11:14] Leah: And it potentially adds to their workload if they’re sending out a whole bunch of these that aren’t correct. And then they have to review the documentation that is then submitted for something that wasn’t a problem in the first place.
[00:11:25] Chris: And we know these are confusing. We know they’re scary, and we know they don’t make sense. And I’m sure I can talk to people Amazon that would agree privately, if not publicly, that it doesn’t make sense either. The question becomes, what do you do about them? How do you strategize? And if this is the only thing in your account health- you’ve got suspected IP infringement, you’ve got listinga down or your whole account is suspended just for this. You don’t have any received IP claims, show us some examples. Let us know. Because believe me, we’re tracking these. We’re trying to help people solve this sort of thing. So anyway, questions are welcome. Thanks for listening in. And Leah. Thanks for talking.
[00:12:01] Leah: Yeah. Thanks. Talk to you next week.
Hosts & GuestsChris McCabe Leah McHugh
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