Amazon is a hot bed of both competition law and trademark infringement. Both are ultimately due to the structure of the platform: For the sake of clarity and customer friendliness, according to Amazon’s guidelines, there should be only one offer (ASIN) for each item, to which all retailers offering this item must “attach” themselves.
Advantages for the customer
Unlike on the eBay trading platform, you can only create your own offer on Amazon and claim it for yourself if you sell an item exclusively.
The structure of the attachment has the advantage for the customer that he can directly call up an overview of all dealers when calling up the offer he is looking for. Thus, he can compare and choose the cheapest price or the most reputable seller.
For dealers, however, this creates a tough price war and, on top of that, the risk that – without realizing it – you as a seller will be associated with an offer that contains false information. Offers can be changed at any time by the trader who has the writing rights. Thus, theoretically, every offer to which one is attached would have to be checked every second in order to be able to ensure that one is acting in compliance with the law.
The own brand
Many retailers try to get around this issue by selling products under their own brand. This is also possible in principle and is even promoted by Amazon. For example, the platform has launched the Brand Registry Program. Retailers who have registered their own brand and sell under it are allowed to mark their goods with a special barcode. Amazon wants to get a grip on the sale of counterfeit products in particular.
Of course, there are black sheep everywhere. Currently, it often happens that retailers sell goods under their own brand, which was registered specifically for this approach. However, the goal of the trademark application was ultimately only to be able to claim an Amazon offer for itself alone, far away from annoying competition, although the identical no-name products are shipped as by the competition. If they take the trouble to brand the products accordingly, this approach may even be lawful in the light of the currently prevailing case law. In the opposite case, the Cologne Higher Regional Court (OLG) ruled that a warning notice was an abuse of rights because the trader issuing the warning notice had not marked its products with its trademark; Cf. decision of March 26, 2021, Ref. 6 U 11/21.
We help you
If you have also received such a warning, please contact us! We know our way around the jungle of current case law, Amazon guidelines, requirements for a successful trademark application.
