Hi all, I hope this is an appropriate forum to request advice on this issue. Sorry to ask a question so soon after registering but this is bothering us greatly. We are an established and professional online retailer selling on Amazon UK. We sell a wide range of products and are building a business we are proud of. We have excellent feedback from customers and had a great relationship with Amazon. Sometimes when we are considering a new product to sell, we like to test the market to gauge demand. This avoids the risk of purchasing large amounts of stock only to find we cannot sell it or sell at the price we thought we could. Two days ago we spotted that an online retailer was selling a product namely "Monster Beats by Dr. Dre Studio High Definition Headphones". These are made by a company called "Monster Cables" based in the USA. We spotted an opportunity to flip this product by advertising it for sale on Amazon and buying it from the other retailer in order to fulfil any orders that came in. We would make a small profit in the process. This would be a great way of testing the market and we have done this many times before successfully. However today we had a shock. Amazon UK sent us an email saying that they had received a "notice of infringement" alleging that we selling fakes and had infringed Monster Cable's trademark and our listing on Amazon had been removed/cancelled. As you can imagine this left us stunned to say the least. We understand of course that Amazon is obliged to act on such notices. They have stated however that if we have any repeat occurrences our account would be suspended for 30 days. We are extremely angry about this. The company "Monster Cables" have assumed we are selling fakes. We hadn't even actually sold any before the listing was cancelled. We have no reason to believe the web site where we were going to purchase them for is selling fakes. In fact, the site sells quite a lot of Monster Cable products. We feel that we have been made to feel like criminals. We have made contact with Monster Cables already on Amazon's advice. They did send a brief reply simply stating they have a big problem with counterfeit products being made available through unofficial channels. They asked where we purchased ours from. I have advised them as above and am awaiting a response. How can a company like this simply assume we are selling fakes? They obviously haven't made any test purchases from us as we haven't actually sold any? We never have and never will knowingly sell counterfeit products. Our reputation is important to us and we feel that it has now been damaged perhaps irreparably with Amazon UK. What if another company came along and did this and our account was suspended. It could cost us our business and livelihoods. Although it is very early days, already we feel this is potentially libellous and a defamation of our character. We would most welcome any views and advice on this situation as we feel we have done nothing wrong but are being made to feel like we have. Warmest Regards, Steve
Just wait until you hear back from Monster before doing anything. As far as having a case for libel or defamation, what would your damages be? About zero. No one knows about the cancellation except for anyone you choose to tell. Actual damages would amount to "potential few dollars" per sale - of which you haven't yet made any. The legal fees to take this to court would be huge (tens of thousands of dollars) and you're dealing with a company that has a lot more money than you. Only cables purchased from "authorized dealers" have a warranty "If you're not buying from an authorized dealer you are not covered by our warranty!" so they had cause to object to your listing.
Hi, I appreciate you taking the time to both read and reply. Well the damage is to our reputation with Amazon and the possibility of losing our account based on what we see as an unfounded allegation. The financial cost of losing our account would be tens of thousands of dollars at least. You state that Monster had cause to object to our listing because the item would not be covered by Monster warranty. Surely we could provide the customer with the warranty instead this being the case. And is this really grounds for alleging trademark infringement? Also, for all Monster knew we could have been purchasing from an approved distributor or retailer? It still seems to me that Monster make a lot of assumptions and act first and ask questions later. I just want to clarify that Monster have alleged we are selling counterfeit products. We never have and never will. Surely this isn't simply a warranty issue? We will of course await Monster's response. Many thanks, Steve
Were you using their trademark or logo in their ad? Had you even purchased any product from this "authorized dealer"?
Hi, Yes of course we were advertising their product for sale on Amazon so if that means using their logo & trademark then yes. We haven't even purchased the product as yet I we do not know it the retailer we were going to purchase the headphones from is an authorised dealer or not. Monster hasn't come back to us yet on this. So am I to take it that because we are not an authorised dealer of Monster Cables it is okay for them to assume we are selling fakes and go straight to Amazon to tell them so? I would add that we have sold many, many other brands of goods, Logitech, Sennheiser, Sony, Canon, Panasonic etc. without any problems whatsoever. We are not an authorised dealer of any of these brands. I would also like to add that we have never had a single complaint from customers about being sold counterfeit products. On the contrary we have had feedback stating our goods are genuine. All was rosy and dandy in the garden until Monster came along with their heavy handedness. Many thanks, Steve
You need express permission to use their logo or images - which you didn't have. You were offering a product of theirs that you didn't have. Not having the actual product, means you were using someone else's images, which is copyright infringement if you didn't have their permission. You weren't an authorized dealer, and any sales would have been void of their warranty. Forget about what other companies have allowed you to do in the past, it doesn't matter in this situation. There are many companies that only allow their product to be sold their dealers. As you didn't even have any product, you cannot argue that you were only selling genuine product (only that it was your "intent"). Selling "new" product without permission from companies that only allow sales through authorized dealers opens the door to these types of take down notices. I would suggest that you reviews the policy of every company you offer products for if you want to prevent another filing and loss/suspension of you Amazon account.
Hi mjewel, Thank you for your continued interest in this topic. The Monster Cable images & logo are already published on the Amazon site. As a third party seller we consider that we are allowed to sell that item. Can you point us to where it says we need express permission? Also does this apply across international borders or just the USA? We also actually have our own brand but we exclusively sell the products ourselves and have not licensed anybody else to sell them. If a third party came along and attempted to sell our goods we would not be happy. We would ask them to cease selling our brand as we have not licensed anybody else to sell it. We certainly however would not accuse them of counterfeiting our product or brand - certainly not in the first instance. Monster Cables specifically alleged we were selling fakes - not merely selling their brand without authorisation. I think there appears to be two different issues here. Your argument seems to centre around whether it is acceptable for a non-authorised seller to sell a product. I understand this argument but is it okay and acceptable for the company to assume that we are selling fakes? I certainly do not agree with this approach and think it unethical and probably unlawful. A company should not be allowed to accuse another company of selling counterfeit products without evidence - not merely a hunch. To do so amounts to defamation of character/libel. We of course do not have the resources to even consider suing them (assuming we had a case of course). Then again, Monster probably already know this which is why they are so keen to adopt this policy knowing full well that small business simply do not stand a chance. We will take on board your recommendation on checking with companies first whether exclusive distribution/authorised channels are in place. We do of course wish to avoid a reoccurrence of this unfortunate episode. There must be many eBay & Amazon sellers in particular who are being targeted in this way although this is the first company we have encountered using this practice. Steve
A third party seller on Amazon has absolutely no rights to use anyone's trademark or logo with express permisson. Amazon cannot grant permission to use intellectual property they do not own. Additionally, when a photograph it taken, it has an automatic copyright and you need permission from the copyright holder to use their image. Trademark law is pretty much international (Madrid Protocol) and Amazon is a US company, so US law applies anyway.
Monster is notorious for the vigorous defense of their trademark, and they have filed many lawsuits. http://en.wikipedia.org/wiki/Monster_Cable_Products#Trademark_and_Patent You may want to consult with an attorney with expertise in intellectual property law before you do anything else. (I assume mjewel knows their stuff, but the discussion on the forum here is not the same as face-to-face discussion with someone who can represent your interests)