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Court Sides with Amazon in Counterfeits Case

Judge denies manufacturer's request to ban the sale of its products on the site.

An appellate court ruled in Amazon’s favor last week in a counterfeits case, dismissing a manufacturer’s request to ban the sale of its products on the marketplace.

Tre Milano, the maker of the InStyler Rotating Hot Iron Hair Straightener, filed a suit against Amazon and several of its third-party sellers, seeking damages and an injunction that would prohibit its products from being sold on the marketplace, directly from Amazon or through its third parties.

The manufacturer says one-star reviews for fakes are hurting the reputation of legitimate InStylers and are infringing on the maker’s rights. It notes in the complaint that from May 1, 2010, to April 28, 2011, Tre Milano sent Amazon 311 Notices of Claimed Infringement. “Of these, 266 were for first-time listings on Amazon, while 85 were follow-up notices,” the report states.

However, the court upheld an earlier ruling that the harm done was not enough to allow a ban of the products on Amazon and that the law did not require Amazon to police listings on its site.

“At least, in respect to the InStyler, Amazon is a service provider, not the seller,” the court stated.

When Tre Milano sends cease and desist orders to eBay, that marketplace takes down listings fast, but Amazon took weeks to act

Manufacturer finds fakes

Tre Milano notes in the complaint that it regularly investigates the counterfeiting of its product because it is a popular item, and that it regularly buys InStylers from eBay, Amazon and other retailers to test if they’re fakes. Tre reports buying several InStylers from Amazon—some directly from the retailer, some that were fulfilled by Amazon and some that were sold through third parties. Several of these were determined to be fakes. The company’s attorney then sent Amazon cease and desist orders.

The complaint adds that when Tre sends these to eBay, that marketplace takes down listings fast, but Amazon took weeks to act.

Not enough evidence to warrant action

Adam Garver, Amazon’s copyright compliance officer, says he reviewed the notices and that “a handful of these” contained evidence or an explanation of why Tre thought listings were fakes but that most did not.

“As I have explained to Tre Milano, Amazon.com needs more evidence regarding the alleged infringement before it can assist Tre Milano in carrying out our common goal of preventing the sale of counterfeits,” he notes in the complaint.

Amazon says it tries to prevent the sale of counterfeits. It prohibits the sale “replicas of trademarked items” and counterfeits, and has a team of more than 100 employees who investigate and ID counterfeits.

It adds that over the last two and a half years, Amazon has blocked about 5,900 merchants a year who have been suspected “of infringing conduct. About 75 percent were identified by Amazon.” The rest were identified after the marketplace received a Notice of Claimed Infringement, a Digital Millennium Copyright Act notice or a complaint from a customer.

About the author

Olga Munoz
Olga Munoz is editor of TheOnlineSeller.com. In addition to writing news and feature articles about e-commerce, selling trends, online marketing and other topics of interest to online sellers, Olga manages the site's social media efforts. A journalism graduate of Chico State, Olga says her favorite part of being a journalist is learning interesting facts that help put stories into perspective, attending industry events and meeting interesting people "that leave you smiling, even in tough situations." Opinions expressed here may not be shared by The Online Seller and/or its principals.



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