Reporting Infringement Through Amazon Brand Registry

By Paul S. Rafelson, Founder, Rafelson Law PLLC

How does reporting through Brand Registry work?

Amazon describes Brand Registry as a program for brand owners that includes a Report a Violation tool. An enrolled brand reports through Amazon’s Report a Violation tool, and Amazon reviews each report on the right claimed and the evidence attached. For a utility patent, Amazon requires an APEX ID, a court order or an ITC order before it accepts the report. Most brands get there through APEX (see Patent and Amazon APEX). For the other rights, the report goes to Amazon for review. Which tools a brand can use depends on its enrollment and on Amazon’s current program terms; see what a pending trademark gets you for how a pending application can change that.

What does each type of report need?

Each right needs different proof, and the wrong proof is the usual reason a report fails. We assemble it for the right being claimed. A report that names a right the brand does not hold, or that sweeps in genuine resale or fair use, can be rejected and can create exposure for the sender.

What should a design patent report include?

Design patent infringement is measured by the overall visual impression of the patented design and the accused product, as seen by an ordinary observer (Egyptian Goddess, Inc. v. Swisa, Inc., 543 F.3d 665 (Fed. Cir. 2008) (en banc)). Design patent reports fail for one reason more than any other: the reporter argues about what the product does instead of how it looks. The test is the overall visual impression to an ordinary observer, and a report built on anything else is rejected. We build the comparison the way Amazon’s reviewers and a court expect to see it. Remedies in court include the infringer’s total profit on the article of manufacture (35 U.S.C. § 289; Samsung Electronics Co. v. Apple Inc., 580 U.S. 53 (2016)).

What should a copyright report include?

Copyright protects original expression from the moment it is fixed (17 U.S.C. § 102(a)), and a takedown request to a platform can proceed without a registration. A court case generally cannot: registration, or a refusal, is required first for a U.S. work (17 U.S.C. § 411(a); Fourth Estate Public Benefit Corp. v. Wall-Street.com, LLC, 586 U.S. 296 (2019)). The copyright report turns on ownership. Brands discover at the worst moment the photographer still owns the photos. We confirm ownership before the report goes in, because a report on a right the brand does not hold is worse than no report. See trademark vs. copyright in court.

What if Amazon rejects the report?

A rejection usually reflects a gap in the evidence or in the claimed right. The options include supplementing the report with better evidence, correcting the right asserted, sending a notice directly to the seller or going to court. Direct notices and court action are covered on our pages on demand letters and litigation.

What if I am a seller and my listing was reported?

If your listing was reported, the response depends on which right is claimed and whether it reaches your product. A report that names the wrong right, or sweeps in genuine resale, is open to challenge, and a seller who knows this responds from strength. For a copyright report, a counter-notice carries legal consequences, so speak with a lawyer before sending one. A person who knowingly materially misrepresents infringement in a copyright notice is liable for it (17 U.S.C. § 512(f)). Trademark and design patent reports have no counter-notice. You dispute them through Amazon or ask the reporter to retract. See Amazon IP claims.

What should I gather first?

• Registration, application or patent numbers and proof of ownership or assignment.
• The ASINs, the listing pages and screenshots with dates.
• Your own sales history and first-use dates for the brand or work.
• Agreements with designers, photographers, agencies and manufacturers.

How do I get started?

Contact us. Tell us the brand, the right you are asserting and the listings involved, and we will tell you whether we can help.

Frequently asked questions

Related pages

Sources and notes

• Amazon Services, What is Amazon Brand Registry?
• Amazon, “Amazon Patent Evaluation Express (APEX) program”, Amazon staff announcement, Seller Forums.
• Amazon, Utility Patent Neutral Evaluation Procedure.
• Amazon Seller Central Help, Amazon Patent Evaluation Express (APEX) (sign-in required). Read the current Amazon agreement for the terms of a particular dispute.
• 17 U.S.C. §§ 102(a), 411(a), 512(f); 35 U.S.C. § 289; Fourth Estate Public Benefit Corp. v. Wall-Street.com, LLC, 586 U.S. 296 (2019); Lenz v. Universal Music Corp., 815 F.3d 1145 (9th Cir. 2016); Egyptian Goddess, Inc. v. Swisa, Inc., 543 F.3d 665 (Fed. Cir. 2008) (en banc); Samsung Electronics Co. v. Apple Inc., 580 U.S. 53 (2016).