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As a firm, we have recently seen an increase in the number of entrepreneurs whose product listings on e-commerce platforms like Amazon or eBay have been removed due to takedown requests alleging intellectual property infringements.
As specialists in intellectual property law, we are used to dealing with situations where the question of infringement is not straightforward and might be arguable either way. The increase in takedowns we have been seeing does not fall into this category, but is rather more easily characterised as being vexatious or fraudulent.
The intellectual property rights might (or might not) exist, but they are clearly (to an intellectual property specialist) not infringed and, in one case, the company alleging infringement had itself ceased to exist some years ago.
These can be difficult issues to raise with the relevant platforms who may not have the personnel or expertise to assess even the more straightforward points. As a matter of commerciality, the platforms appear to be less interested in making such assessments where the risk of getting it wrong potentially exposes them to liability and one product line out of many is insufficient incentive.
You have the option of making a claim for unjustified threats of infringement (and maybe other claims) against the person who made the takedown request and there is case law to support the premise that takedown requests are threats of infringement to the third-party platforms which allow an affected client to take action. However, making such a claim before the courts can be costly and time-consuming and clients have to consider carefully whether or not the product in question is valuable enough to merit such action. Of course, it is to be hoped that such clear-cut matters would never get to a trial without the defendant seeing sense, but resource would need to be expended in starting a case.
In our experience, the parties making spurious takedown requests are resistant to reconsidering their position and withdrawing their takedown request simply in the face of a letter from solicitors. They can easily do nothing, in which case you may wish to engage some sort of legal process to achieve a result.
To be entirely fair, our experience has shown that a well-presented and well-reasoned presentation of the facts to a platform can result in a product being relisted, and this option (as well as a legal letter to the party who made the takedown request) should be the first steps to increase the likelihood of maximising the outcome for the minimum cost. For serial offenders however it may be that only a court order is sufficient to get them to cease making spurious takedowns and it might also be that, if this problem continues to increase, platforms need to take steps to mitigate against this.
If you would like advice on the best course of action for getting your products re-listed on e-commerce platforms, please don’t hesitate to contact us. Our expertise, as highlighted in attorney Dan Byrne’s article, is specifically geared towards addressing and resolving complex intellectual property disputes, including those involving unjust takedown requests.
Category: Latest Insights | Author: Daniel Byrne | Published: | Read more
