Saw this and this is just unbelievable.
First of all, the rights owner pays NONE of this cost unless their claim is found to be false. Second, 4K to protect your IP in a patent dispute? That’s a huge bargain. If you hire an attorney to deal with it 4K will get you a few C&Ds sent out, actually suing someone can cost 6 - 7 figures. And lastly, you only need to go through the process if the knock off maker puts up 4K, which they won’t, and you automatically win and they get their listing removed.
I got a feeling their garbage patent probably isn’t enforceable so they’re complaining about having to “gamble” 4K to enforce it. If it was as clear as they claim it is, then it’s not a gamble at all.
When I first read that NSFE discussion (shortly after it was created), the evident disdain for the relative affordability of the APEX (‘Amazonese’/‘Amazonish’ for “Amazon Patent Evaluation Express” [link, SHC]) process was the first objection I had.
I thought that this comment from Its_all_Nuts_again on the NSFE summed up the benefits well:
This wont get me any upvotes [though it did], but I actually like this. It should help controlling random attacks on honest sellers with bad actors claiming their listings are counterfeit. Constantly there are sellers here saying their listings were taken down even though their product is clearly not a counterfeit. It will get brand owners to think about screaming “counterfeit” if they are not able to back up that claim.
If the brand owner knows it’s counterfeit, there is no issue as the other seller has to flip the bill.
Well, one issue that might exist is the fact that patents are complex and if your patent isn’t written correctly it doesn’t have any real legal protection. If some amateur filed their own patent because they didn’t hire/consult an experienced patent attorney, there’s probably enough holes in it where it’s not worth anything.
That of course, is the patent holder’s fault/problem. And it’s part of the reason why the holder has to escrow money to get it evaluated.
While true, in this particular case, this policy does actually protect sellers. It protects sellers from having to answer frivolous claims since the complainant has to pay for the cost of the action if it’s frivolous.
Amazon has set itself up as lawmaker, judge, jury, and executioner. Unlike any other company, Amazon feels no obligation to comply with any countries IP laws, and “gets away with it” by pretending that they are “not a seller, but a mere platform”.
Patent law sucks, that’s true. A patent is a license to go bankrupt chasing a counterfeiter who then disappears into a cloud of greasy black smoke after a judgment is awarded. But it is the law here in the USA.
A better strategy is to use copyrights and trademarks to protect one’s IP. Copyright has gotten absolutely draconian, and the DMCA is a civilian-friendly process, no attorney required for most takedowns. A copyright registration is also cheap, so copyirght everything.
So, get a trademark, and tolerate Amazon’s own little extra-legal world of “Brand Registry” and open contempt for Trademark law, but also use copyright to to furthest extent possible - the product appearance? Copyrighted. Labels? Ditto. Logo? Fer sure. Instruction sheets? Yep, them too. The box? Sure, why not? I said EVERYTHING.
This is EXACTLY what we ourselves have done for longer than Amazon - the rise to prominence of which, as you’ve astutely noted, has warped the playing field - has even been in existence.
