So a seller is selling my brand items however he is not using my trademark( the items do not have my logo or trademark), he is selling in the same packaging and the goods inside are not from my brand
Would this be considered counterfeit to Amazon? I am confused about what they classify as counterfeit and how I should go about reporting this
If they are selling on a different ASIN, Amazon will not understand this. If you try to get Amazon to understand, it may backfire on you unfortunately.
A lawyer with a C&D letter sent to the other seller will be the quickest path.
If this does not work, would product not as described be the best route? If there any other way?
Selling in the same ASIN
And is it branded generic?
If it’s your brand, test buy and follow the proper test buy procedure!
ASIN is branded
Right but then would amazon consider this a counterfeit item? Or a product not as described item?
Because he is selling on YOUR BRANDED ASIN, YES, this is considered a counterfeit item!
Even if it does not have my trademark on it? 
Yes. Do a test buy
If you file a counterfeit complaint through brand registry they’ll be gone.
You can send them a message first demanding they get off the ASIN and if they don’t comply then do the test buy and file the complaint.
Technically, legally they’re not selling counterfeits if your trademark isn’t on it, the items are just “not as described,” but what are they going to do about it? They got no case if they want to sue you because they’re doing something wrong themselves.
Pepper is 100% correct. If the ASIN listing is for brand name “Joe’s Joe” and another seller is listing something on that listing that is not “Joe’s Joe” than it is a counterfeit item. Why? Because the buyer is trying to buy a “Joe’s Joe” brand item and the seller is trying to sell them a generic product.
It’s really no different than someone listing a “Bill’s Joe” item on a “Joe’s Joe” listing. It is not that same and would be considered a counterfeit.
Good Luck,
TJB
The error here was not copyrighting the “Trade Dress” of the product, the packaging, the instruction sheet or panel, and the artwork on the package.
With a copyright registered, his product would be infringing your copyright, and there would be clear grounds for eliminating the seller’s offer. The trademark approach is more difficult on Amazon, as they simply ignore wide swaths of Trademark law (such as trademarking one’s trade dress), or the concept of “passing off” with far-too similar trade dress.
If the ASIN is branded, and Amazon let them make an offer without permission from the brand owner, then something is screwy, as the entire concept for amazon brand registry is to allow the brand owner to control the sellers making offers. But Amazon’s actual enforcement of this varies all over the map, as the people they have working at brand registry seem to do nothing but presume to “Amazon-Splain” via boilerplate describing what SHOULD be happening.
Counterfeit is specifically a duplicate copy of your item. This would be trademark infringement for misusing your trademark to market another brand’s product.
But in this case filing a counterfeit complaint is fine since the other seller has no recourse to dispute it, and 99% of the people who do this kind of thing are scum foreigners anyway.
Yea so legally it seems its not because my lawyer told me it wasn’t
If this persons account gets deactivated though
Would they have a case? Not really right?
I also wonder if Amazon would ever take action against you for reporting counterfeit when in fact it isn’t (product not as described)
I doubt it but what do you guys think?
My issue as well is when i do test buys he provides false tracking number and doesnt ship so product not as described not an option
What are they going to do, sue you and say in court that yes, they were intentionally misrepresenting their products and you filed the wrong type of complaint? Hah, good luck with that. At that point you would just countersue them for trademark infringement.
And like I said, 99% of the people who do this are foreign scum who can’t use the US court system anyway.
If they provide a fake tracking number, you should be able to file the brand registry complaint with that order ID anyway for the test buy.
The only way I see this blowing back on you is if the person gets shut down, and goes to arbitration with Amazon over it and prevail, which is basically a 0 chance of happening as they’re already committing serious policy violations
How about Amazon not accepting it? do you think amazon might not accept it and remove my ability to report because of that? meaning I go ahead and describe the item and tell amazon it lacks our trademark on it but the seller is unauthorized
I would just say something to the like of “This is a trademark violation as the product is a reproduction that is not the same as the original”
Wasn’t that someone through vendor central though? They’re likely exempt from IP violations.
Sounds like OP’s problem is the typical foreigner FBM seller
