I know that when selling a product with a unique design on Amazon, you may be concerned about your design patent being protected. If you’re just starting out, this is a valid concern.
Through several years of putting out products with unique designs on Amazon, I’ve discovered that there’s a chance of having your design duplicated and used without consent. I decided to deeply investigate whether Amazon does anything to enforce design patents.
My goal in this article is to answer the questions ‘Does Amazon enforce design patents?’ and ‘What are the methods they use to enforce these patents?’
Does Amazon Enforce Design Patents?
Yes, to some extent, Amazon enforces design patents. However, the efficiency of their approaches varies depending on the situation. Amazon has implemented some regulations and processes to handle intellectual property concerns, such as design patents.
To enforce patents, Amazon may remove listings, suspend seller accounts, or assist parties in resolving disputes. The company has launched a Neutral Patent Evaluation program. This program allows patent owners and suspected dealers to resolve issues through an impartial third-party evaluator.
Methods of Design Patent Enforcement on Amazon
Enforcing design patents on Amazon involves a strategic approach to protect your intellectual property and increase company valuation. Here are practical methods for patent enforcement on Amazon:
Amazon’s Report Infringement Tool
The Amazon Report Infringement Tool enables patent owners or their agents to assert their design and utility patent portfolios against infringing products. To do this, all you need is a regular Amazon account and by using the Report Infringement Form. This includes:
- Goods that include all claimed elements
Successful patent infringement reports result in the removal of the product.
This form, despite its simplicity, has some limitations.
- Using this form, you cannot attach or link to supporting materials such as claim charts or annotated pictures.
- You cannot fill more than 1,000 characters in the space for the brief infringement description.
As a result of the basic structure of the infringement statement, this method may be more appropriate for design patents.
Another disadvantage of this method is that you cannot track the progress of the form. Once you submit the form, you cannot raise the infringement accusation. The only exception is if Amazon specifically demands additional information. Amazon states that its employees decide infringements in one to two days. However, these decisions often take longer.
Amazon Brand Registry
You can use the site’s dedicated “Report a Violation” link as a patent owner with a Brand Registry account. This provides more functionality than the normal Report Infringement Form. Unlike the Report Infringement Tool, the Brand Registry method allows for:
- 3,000-character infringement descriptions: This allows you to make detailed arguments, which is particularly beneficial for utility patents.
- Submission tracking and escalation: This provides transparency and allows you to follow up on your submissions if the initial report is unsuccessful.
- Unlimited text and attachments for escalated reports: You can further explain the infringement with supporting documents.
Neutral Patent Evaluation
Here’s what you need to know about Amazon’s Neutral Patent Evaluation (NPE) is patent court-like process for requesting a review of infringement claims against individual listings. It is only available on a case-by-case basis for design patent infringement. While a patent owner can request an NPE, acceptance is not guaranteed.
If the neutral evaluator is granted, both parties contribute $4,000. However, if you win, you get your deposit back. The evaluator decides on potential infringement within 14 days after receiving the patent owner’s final response. If there is any doubt, the evaluator will offer a brief explanation. Otherwise, no further information is provided.
Amazon removes listings for potentially infringing products within 10 days. The winner’s money is repaid regardless of the outcome, while the loser’s funds cover the evaluator’s charge. Amazon does not receive a cut of the money. This strategy does not prevent you from pursuing legal action through other channels.
When Should Amazon Sellers Consider Filing Design Patents?
When Amazon sellers’ products have unique and distinctive visual features contributing to their commercial attractiveness, they may consider pursuing design patents. For this, you would need a patent attorney. Here are some scenarios in which Amazon sellers should seriously consider filing patents:
Distinctive Visual Features
Consider filing a design patent if your product has unique and distinctive visual features. These distinctive features could be a specific shape, pattern, ornamentation, or overall appearance that sets it apart from competitors. The patent can help protect these visual elements.
Design patents can be valuable for products that build and maintain a brand’s identity. Secure a patent if the appearance of your product is a key element of your brand. This will prevent others from copying your unique design.
In highly competitive markets, products can easily be imitated. However, with a design patent, you have a legal tool to prevent competitors from copying your product. This prevents them from producing identical or substantially similar products. This will ensure the exclusivity of your design and give you a competitive edge.
Can I Take Legal Action Against Infringing Parties on Amazon Even After Using Amazon’s Enforcement Procedures?
Yes, you can pursue legal action against infringers if you use Amazon’s enforcement processes. If informal methods and Amazon’s internal procedures fail to settle the matter satisfactorily, talking with an attorney and exploring legal avenues remains an option.
However, before this, sending a cease and desist letter is often the initial step. If informal methods do not resolve the issue, pursuing legal action through the federal court system is an option. This may involve filing a lawsuit against the infringing party for design patent infringement.
Legal action handled by a patent attorney, like Goldstein Patent Law can give a more comprehensive remedy and address the issue through the court system.
What Are Some Alternative Strategies for Protecting Design Patents?
In addition to using Amazon’s built-in capabilities, you can use the following strategies to protect your patents:
- Using tools or services to monitor suspected infringement on Amazon
- Increasing understanding of the value of authenticity and genuine products
- Creating a strong brand identity can help discourage counterfeiting while attracting loyal customers
Can I Use Amazon’s Enforcement Procedures for Patents Registered in Countries Other Than the United States?
Amazon’s enforcement processes, including NPE and Brand Registry, primarily apply to patents registered in the United States. Patent enforcement in other countries may involve various procedures. Therefore, it is best to seek advice from legal practitioners who are experienced with international intellectual property law.
If you want to learn the type of intellectual property protection, you must understand how Amazon enforces design patents. While these enforcement approaches provide a foundation for protection, you should be mindful of each approach’s limitations and complexities. A combination of the right patent and enforcement methods can help you protect your unique product designs.