What are Amazon Counterfeit Products?
"Amazon Counterfeit Products" involves selling a product that attempts to mimic an authentic product by replicating size, shape, color, packaging and/or photographs and product descriptions posted in the original’s Amazon listing. Counterfeiters may try to sell it on the listing of the original product. One sign of an Amazon counterfeit product is when products are being sold at a price that probably would likely not generate a profit if it was an original item. While it is legal and appropriate for other sellers to sell off of an originator’s listing, it is unlawful to counterfeit.
Amazon Counterfeit Products are Unlawful, But It Happens
Rogue Selling is Not Always Illegal
“Rogue” selling on Amazon involves sales of Amazon counterfeit products, knock-offs, bundled items and what Amazon refers to as “inauthentic” products. These sellers are primarily overseas (mostly from China) but some have established bases on the U.S. west coast.
Selling Counterfeit Products on Amazon
Rogue sellers often sell their Amazon counterfeit products on the same product listing as the seller of the original items. Fortunately, Amazon has gotten better recently in dealing with true counterfeiting situations. If you suspect someone is counterfeiting your products on Amazon, involve counsel who can report the counterfeiters directly to Amazon.
Another form of rogue selling involves acquiring the original product from other channels or the originator but then selling it against the originator on the originator’s listing. This often involves the practices of “Bundling"and/or multipacking the product with some other product. These practices make it just different enough to secure a separate ASIN (product identification number) on Amazon’s system.
- While not all rogue sellers are true sellers of Amazon counterfeit product (products might be a little different in size, shape, color, etc. but are similar), these sellers will usually try to sell them on your product listing. While they are violations of Amazon policy, these instances are not necessarily unlawful and can be difficult to successfully pursue through courts. Instead, contact rogue sellers directly through Amazon messaging and advise them of the violation. Refer specifically to which policies are being violated. At that point the seller will either seek to correct their mistake, or they won’t. If they won’t, it may be a purposeful deception and you may need to act further.
- New sellers frequently make mistakes. Not all inauthentic products camped on to your listing were intentional deceptions. Some will be cleared up easily if you address them directly.
Sophisticated International Rings are Selling Amazon Counterfeit Products
An entire cottage industry of counterfeit products on Amazon exists, largely from overseas. In China, for example, some bad actors are selling “disposable” seller accounts with credit cards and inauthentic bank accounts.
Ways to Fight Back Against Amazon Counterfeit Products
Sticker Your Products (not an option for sellers within the Vendor Central platform)
- Stickering your products prevents your product being co-mingled (mixed in) with other sellers products on your listing that are described similarly to your authentic product.
- Amazon has a dedicated portal where you can report Amazon counterfeit products, copyright or trademark infringements but the site uses drop downs that pigeonhole you into certain types of complaints and you may find it difficult to state your case effectively. You’ll need to show evidence of the violation, (photos, etc.) with your claim. If they find your claim has merit they will take action.
Check to See if You Qualify for Pre-authorization Protection or “Gating’
- Extreme, sophisticated sales of Amazon counterfeit products comprise approximately 5% of Ted's clientele.
- Just last month, Amazon began offering pre-authorization protection or “gating’ to certain branded listings on a product-by-product basis.
- While this has primarily been done for larger brands, they are extending this to other brands that are encountering problems related to Amazon counterfeit products.
Register Your Brand
- Getting “brand registered” on Amazon is an easy, no cost extra measure of brand protection in Amazon’s Seller Central platform.
- Ultimately, Amazon may decide to withdraw the program or, if successful, they may charge for it.
Amazon counterfeit products occur within the U.S. too.
- Many counterfeiters based in China set up operations (warehouses and distribution centers) in southern California because the ports in that region are the largest in the nation for imports from China. Ted says we can more easily shut down their U.S. operations, or at least make operations difficult for them.
Manufacturer’s Advertised Policy, or Minimum Advertised Pricing (MAP) and How it Applies to Amazon Counterfeit Products and Bundled Items
- The idea behind a MAP is to make the product the same price across the board.
- You can create an exclusion within that MAP policy regarding which channels your product can be sold on throughout the distribution network, and at what minimum price point but it is essentially only a recommendation.
- When considering drawing up a MAP policy, you need to be careful to avoid serious legal issues so you should seek the advice of qualified counsel to draft and enforce a MAP. Otherwise you can suddenly find yourself violating antitrust and price-fixing laws to which civil and criminal penalties may apply.
- Before entering the MAP arena, get the advice of qualified counsel on how/whether it will safeguard you against Amazon counterfeit products and how to implement it. Having a MAP policy, however, can be very beneficial to the manufacturer.
Best Way to Control and Protect Sales of Your Product on Amazon against Amazon Counterfeit Products
To weed out the bad actors, it takes some time to develop a cohesive, unified strategy and acquire knowledge of both law and Amazon policy so you can know how to approach the issues. If you experience what may be an infringement, call people, write emails, monitor Amazon, and deal sensitively with such issues as they rise. It usually requires a dedicated staff position to oversee MAP enforcement, and involve legal counsel to add a little more persuasion when the situation gets tricky.
"Epidemic of Amazon Counterfeit Products and Rogue Listings" features guest Ted Luymes of the Ted Luymes Law Firm. Ted is a civil litigation attorney specializing in Amazon for the past eight years. Licensed in State of California for past 26 years, Ted enforces intellectual property rights on Amazon and other e-commerce sites and the Internet generally. Visit his website at www.tedlawfirm.com or Email him [email protected] or call (626)-993-7000. Disclaimer: commentary presented in this webinar should not be regarded as legal advice and does not create an attorney-client relationship. If you have an issue in regard to the subject matter of this webinar, contact an attorney.
If you'd like more information on how to protect your sales and brand against rogue sellers and Amazon counterfeit products, contact Awesome Dynamic at [email protected] or call 800-238-1811.