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Thu July 21 2022 14:22:36

Who Is Infringing on Whose Rights in Amazon Takedowns?

By: Reader

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Dear Ina,
I do not understand why a manufacturer can have a right to get a listing de-listed of a legally owned - USED - item that I personally legally purchased for "trademark infringement." 

The premise behind this crazy rule means that once you buy something you can no longer list it for sale after you upgrade, replace or not longer need it?! This is personal property previously purchased from a manufacturer's OWN seller originally!  

OF COUSE the description of the item will include the brand name, as that is what it is! By not allowing the resale, on a prominent resellers platform, is akin to rendering the property useless and may be construed as the ILLEGAL TAKING OF PROPERTY. 

Someone in our legal community, or Congress, really should step in and address this issue as it is becoming more prevalent. I know that Amazon can make its own policies, and that there are other platforms and means to resell it, however, as this company grows in size and dominance it approaches that of a Monopoly status. 

I have tried to contact Amazon but there is no voice as their bot simply refers me to the policy and ignores the issue allowing the manufacturer to continue infringe upon the rights of property owners.  

Just wondering what others think about this issue and if anyone is aware of any current or pending legal challenges to this issue.
T.

Comments (8) | Leave Comment | Permalink
Readers Comments

Perminate Link for Who Is Infringing on Whose Rights in Amazon Takedo   Who Is Infringing on Whose Rights in Amazon Takedo

by: pace306 This user has validated their user name.

Thu Jul 21 18:05:05 2022

Under Lanham and the First Sale Doctrine, you are allowed to resell any legally obtained item without permission from the rights holder(s).

That being said, theres a difference between eBay and Amazon with certain types of issues such as this.

On Amazon you dont SELL, you fullfill. Its Amazon that makes the sale, you as "the seller" (mislabeled) bring inventory to the sale and complete it for them.

On eBay, its YOU who are the seller (even though eBay likes to think they are or should be) and you make the sale AND supply the merchandise.

Despite the differences, both companies are true SOBs. For both of them, money talks and BS walks - in other words - they like to flex their muscles and do things they should not do - because theres money behind the scenes thats involved.

eBays VERO is notorious for taking money from brands. They set up (now defunct) verowatch.com, where for X dollars you would get full site access and they would turn a blind eye to almost any action the brand wished to take. It was back in their "we dont need small sellers if we have the makers of the goods they want to sell!" phase.

Amazon - does it too - does it now as you can see. Its more of though - an implied/veiled threat. We wont sell you our brand(s) if you dont curtail X business on your site.

Amazon - being fullfillment driven - needs the brands not the sellers. They are "really nothing" to Amazon - and if its a popular brand, then there will be other who wish to offer them inventory.

Both suck - just for different reasons

They also know - you cant/wont sue (cost/time/effort/out come) and bank on that to push you around.

Perminate Link for Who Is Infringing on Whose Rights in Amazon Takedo   Who Is Infringing on Whose Rights in Amazon Takedo

This user has validated their user name. by: Rexford

Thu Jul 21 20:24:46 2022

"Under Lanham and the First Sale Doctrine, you are allowed to resell any legally obtained item without permission from the rights holder(s)."

Both Amazon and eBay thumb their noses at this law.  Therefore they ignore the law.  Of course if this was done directly to them they'd be in court fighting it.

Perminate Link for Who Is Infringing on Whose Rights in Amazon Takedo   Who Is Infringing on Whose Rights in Amazon Takedo

by: pace306 This user has validated their user name.

Thu Jul 21 22:34:54 2022

Rex :)

if you recall - eBay stole tax money from other CA counties by convincing the state that ALL eBay CA sales come from San Jose !

so ... if anyone thinks that a little ignoring of laws is something eBay (never mind Amazon) is worried about - I assure you they arent

Amazon gates brands, forces you to sell "only" used and not NEW (unfair competition) and many other things

Problem is - both these companies spend LOTS of $$$ on political entities that look the other way (unless they have no choice).

Thats why everything is binding arbitration and not court - that way they can force you into a "bad hand" and take even more advantage then they already do.

Its no wonder eBays stock is almost 1/2 what it was, with analysts saying "eBay Inc. stock underperforms" no kidding - its employees do as well.

Perminate Link for Who Is Infringing on Whose Rights in Amazon Takedo   Who Is Infringing on Whose Rights in Amazon Takedo

This user has validated their user name. by: Marie

Fri Jul 22 02:32:31 2022

Not all sellers on Amazon use Amazon fulfillment.  There are lots of 3rd party sellers on Amazon.

Perminate Link for Who Is Infringing on Whose Rights in Amazon Takedo   Who Is Infringing on Whose Rights in Amazon Takedo

by: catskill This user has validated their user name.

Fri Jul 22 14:46:48 2022

The is from the American Bar Association:

Trademark Infringement

Trademark infringement is the principal weapon brand owners have in combating unauthorized dealers. Without more, however, there is nothing improper about selling genuine product by an unauthorized dealer, insofar as trademark or other law is concerned. The first sale doctrine in both trademark and copyright law bars the brand owner from controlling the downstream sales. But trademark infringement can still arise regardless of the first sale doctrine.

The first sale doctrine provides that one who purchases a branded item generally has a right to resell that item in an unchanged state. The trademark rights of a brand owner are “exhausted” once the particular item has been sold in the market. But there is an exception to that which often applies in the context of unauthorized online dealers: the “material difference” exception.

The first sale doctrine does not protect alleged infringers who sell trademarked goods that are “materially different” from those sold by the trademark owner or its authorized dealers. A material difference from authorized goods creates confusion over the source of the product and results in loss of the trademark owner’s good will. In other words, materially different goods sold by an unauthorized seller are not considered “genuine,” because they are confusingly different.

Courts define “material difference” broadly: it is virtually any difference that exists between the authorized goods and unauthorized goods that a consumer would likely consider relevant when purchasing the product. Even subtle differences apply. As one court put it, “it is by subtle differences that consumers are most easily confused.”

Material differences may include differences in battery life between authorized and unauthorized batteries; differences in the variety, presentation, and composition of product; differences in the formulation, content, and blends of product; alterations to packages such as removal, grinding off, or cutting away reference numbers, SKUs, bar codes, and batch codes; differences in package shape and labels and lack of required warning labels.

Of a non-physical nature, material differences include changes in operator manuals and service plans, and differences in available services for authorized versus unauthorized goods. Perhaps most commonly, differences in warranty protection coverage between authorized and unauthorized sales often lead to trademark infringement.

In some jurisdictions, notably in Second Circuit law, a difference in quality control measures also constitutes trademark infringement of otherwise “genuine” goods under the owner’s mark.

Perminate Link for Who Is Infringing on Whose Rights in Amazon Takedo   Who Is Infringing on Whose Rights in Amazon Takedo

by: railady This user has validated their user name.

Sat Jul 23 16:39:33 2022

With all due respect, I sell on eBay and am NOT the ''Seller of Record'' of items I list. That title now belongs to eBay, in the case of anyone stuck in their Managed Payments.  Last summer I finally allowed myself to get dragged into MP, after ignoring a bunch of emails that finally began issuing increasingly unpleasant threats on my account.

Following the enactment of internet sales tax laws, eBay as a ''Marketplace PROVIDER'' has become the ''Seller of Record'' for those who are stuck in Mangled Payments.  Misleadingly (there is no way to tell if a ''seller'' is in Managed Payments or not) , eBay shows our Userids as ''Seller'' but that is wrong - we do not get paid by the Buyer! The term should be ''Supplier'', not ''Seller''.  We have been reduced to what amounts to third-party item providers, only providing the products and shipping.

Since I am now in MP, I no longer receive any kind of payment from any eBay buyer.  All those payments go directly to eBay to hold for me until the transaction is complete (and include sales tax or not, depending on the buyer's tax status).  Only after siphoning off their fees and the tax payments, does eBay send any ''PAYOUT'' money to my account.

I also sell on Ruby Lane, where I remain a ''Seller'' there, because RL is defined as a ''Marketplace FACILITATOR''...  MFs do not receive buyer payments; but because they hook buyers up with us sellers/shops/stores who use PayPal and other money processors, the MFs are required to collect/remit sales tax. A buyer will pay me, but through PayPal's agreement with Ruby Lane, sales tax paid by the buyer gets diverted into RL's account.  

Perminate Link for Who Is Infringing on Whose Rights in Amazon Takedo   Who Is Infringing on Whose Rights in Amazon Takedo

by: railady This user has validated their user name.

Sat Jul 23 16:41:55 2022

Back on topic - I recall quite a few years ago, a woman opened a shop on Ruby Lane to sell Nantucket baskets ...  all legally purchased at an estate sale. Somehow the company found out and climbed all over her.  She got absolutely nowhere, from the comments I was able to see.  I don't know whether anyone informed her about the first sale doctrine or not.  She was perfectly right she should have been able to sell them, they were legally purchased and "Nantucket" was indeed what they actually were.  She finally just gave up and closed her store.  SAD.  

Perminate Link for Who Is Infringing on Whose Rights in Amazon Takedo   Who Is Infringing on Whose Rights in Amazon Takedo

by: Snapped This user has validated their user name.

Sun Jul 24 13:27:52 2022

Simply this:

In order to attract certain ‘brand’ sellers who don’t NEED eBay to succeed ‘online’, eBay promised them free reign to ‘control’ the venue’s offerings, backed by venue ‘enforcement’ via sanction of sellers who dare to ‘diminish’ the brand’s optics by selling ‘used’ items lacking the same ‘quality’ the ‘brands’ claim as their ‘hallmark’.  

Regardless of the venue’s compulsion by law to take down ANY listing for which copyright or trademark infringement is alleged via DMCA filing by the ‘rights holder’, (that’s just the ‘availability’ aspect), the venues then take it upon themselves to make it either fiscally unprofitable to try - not counting the cost of the ‘fight’ itself - or they make it ‘painful’ to ever attempt again by virtue of the sanctions imposed by daring to try it the first time.

Though the law may be with you, you will not prevail, unless willing to spend way more than whatever ‘minor individual sale’ could possibly profit you.



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