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How Online Retailers Respond to Trademark and Copyright Infringement

Today, with the shift in commerce to an electronic environment, it is easier than ever to infringe upon someone else's intellectual property. Many times, you can't even tell who is doing the infringement - all you can see is a product in an Amazon or Ebay listing with no real contact information or the person doing the infringing is in China and won't be so easy to haul into court. Even if they are, it's not worth the expense in many cases and infringers know it. For this reason, online marketplaces can also be your friend and assist in stopping the infringement. Sometimes, fear of an Android app being removed from the Google app store is a big incentive for an infringer to stop doing so.

Below is a summary of my (Michael Feigin, Esq.) interactions with some of the larger players in the online world. They are ordered, roughly speaking, from "most responsible" to "least responsible". For more information on dealing with infringement on the internet, please contact us.

Google and Trademark / Copyright Infringement

Responsiveness: [5/5] |Did the Right thing: [5/5]

Google gets placed first on the list because it's a company that does what it should do - have you deal with knowledgable people who know what they're talking about and who obey the law. If you write to Google about keywords in their search trading off of your trademark, they'll put a stop to it. Write to them about an app which clearly infringes on a trademark, they'll take it down in a matter of a day or two. I am a huge Google fan - they have open products which are transparent to the world, besides.

Ebay and Trademark / Copyright Infringement

Responsiveness: [4/5] | Did the Right Thing: [4/5]

Ebay deals with massive amounts of fraud. In the past, they weren't always so good at tracking it and fixing the problem but my dealings with them over the course of many years shows they certainly make concerted efforts to fix this in a way that is fair to both parties. It's sometimes hard to reach a human who really knows what they're doing as they put their customers through all sorts of questionairres and automated systems, but at the same time, many of their automated systems are very good and very informative.


Apple and Trademark / Copyright Infringement

Responsiveness:[3/5] |Did the Right Thing: [5/5]

There is human being to talk to at the other end at Apple who is generally fairly attentive. The problem is that Apple takes a "wait and see" approach. It could be the most clear case of trademark infringement and they'll say, "okay, the two of you work it out." One month later: "Have you worked it out?" Three months later: "Have you worked it out?" My response each time: they'll still infringing ... come on, Apple, delete their app! Finally, after about six months they did. Apple does take intellectual property seriously (they greatly rely on it their own intellectual property) but doesn't like to remove content. This probably has something to do with their model of making it hard to get your content on Apple's services to begin with.

Etsy and Trademark / Copyright Infringement

Responsiveness: [5/5] |Did the Right Thing: [1/5]

Back in 2015, you would be able to reach a lawyer on the other side. Many companies have you deal with some sort of secretary with no real training, and this seems to be the way Etsy has gone.  They now simply respond with boiler plate information which is largely irrelevant.  It took 13 emails back and forth just to get the address of the party who filed a complaint against my client.  They still refused to actually look at the substance of the case, in this case, a claim that my client was infringing a patent by selling the same product that was sold on Etsy two years prior to the filing date of the alleged patent.  A sixth grader could figure out that this couldn't be a valid claim, but Etsy didnt' care.  They do keep responding, however - usually within about one business day.


Facebook and Trademark / Copyright Infringement

Twitter and Trademark / Copyright Infringement

Responsiveness:[4/5] |Did the Right Thing: [1/5]

Though obviously these are two different companies, I lump them together because, in my experience, they're identical with intellectual property concerns. They are less providing actual goods for sale and more about people posting their own words. With Twitter, unless the account name itself is infringing they really don't care - someone tweets "buy a infringing product over here!" with a link and they'll turn the other way. Facebook, in my experience, doesn't seem to care even if it's the name of a page with links to goods which are clearly infringing.

Amazon and Trademark / Copyright Infringement

Responsiveness: [0/5] | Did the Right Thing: [0/5]

A zero in each category might be too high. Amazon is the worst when it comes to dealing with intellectual property infringement. Once used to be able to reach a human who wouldn't respond to or understand your concerns; now they send you to automated response systems which are useless. Amazon will put up listings with your trademark then selll other products on that same listing by your competitors. Write them and they don't care. On the other side, suppose Amazon gets sued for that and one of the products being sold on that listing is yours. Or, in an actual case for one of my clients: Amazon will sell your product and recommend purchasing another product with it, the combination of which infringes someone's rights. Amazon gets sued and - read your seller's agreement very carefully. YOU are responsible even though the infringement was totally out of control and was entirely the fault of Amazon. YOU will pay the damges for Amazon's actions.

In other cases, they will simply take down your listing and not tell you why or write you a letter that says something like, "Dear Rabbit, the Fox says your product is copyright infringement so we're taking down your listing and deleting your seller's account. Go negotiate with the Fox if you want to sell on Amazon again." Really.

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