Got a cease and desist letter from an Amazon supplier I affiliate for

12 years ago

Well, I had to leave a voice mail, so thought I would explain this in a little more detail.

Subject: non compliance with the federal copyrite law

It has come to xxxxxx attention that you are using its trademark name, logos and graphics without authorization on the website zzzzzzz You are not an authorized retailer and do not have permission to use our trademark or proprietary information. This includes but is not limited to logos, images, text and the like. Please see that these are removed immediately.

The purpose of the letter is to notify you that you are in non-compliance of the federal cpyright law. xxxxx demands that you immediately cease the use of its copyrighted material and desist from use of it in the future. Should you continue to represent yourself as a xxxxx distributor, after seven(7) days of this letter, we will take further stringent steps to protect our rights.

So I put those posts in the trash of my wordpress blog and contacted Amazon. Now that I have heard from Amazon, I will speaking with someone at the company and hopefully they are going to be understanding about this. I would never use copyrighted material otherwise.

I can always just delete it permanantly if they continue with their issues. I have not made any affiliate sales so far on the two sites I have their products on and I have listed other similar products.

However it is the principle of the thing. If you list your product on Amazon, you agree to their program of associates selling your products, as I understand it. So this will be interesting to see where it goes.

Thanks

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QWE

12 years ago

Thanks for sharing.

Thanks
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Kay King

12 years ago

I have to wonder if they've hired one of the "services" that checks for violations - without the service knowing the products are listed on Amazon so affiliates WILL sell them.

Sounds like a mixup of the left hand/right hand variety.

Will be interesting to see how they respond.

kay

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Jeannie Crabtree

12 years ago

It is on official company letterhead and is signed by the vice president of Corporate Development & MVP Administrator. So no service that I can see. The letter was forwarded to their attorney.

Originally Posted by Kay King

I have to wonder if they've hired one of the "services" that checks for violations - without the service knowing the products are listed on Amazon so affiliates WILL sell them.

Sounds like a mixup of the left hand/right hand variety.

Will be interesting to see how they respond.

kay

Thanks

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Chri5123

12 years ago

Originally Posted by Kay King

I have to wonder if they've hired one of the "services" that checks for violations - without the service knowing the products are listed on Amazon so affiliates WILL sell them.

Sounds like a mixup of the left hand/right hand variety.

Will be interesting to see how they respond.

kay

I was thinking exactly this as well ^

I am sure it can be sorted though - I remember getting a cease and desist from Zynga games when I had a site with a guide for one of their games.

I rang the lawyer and spoke to him in Beverly Hills - when it came down to it I just had to remove a few things from the site.

The way he worded the email sounded like I was about to be shot at gun point.

So my long winded way of saying a phone call usually sorts out these misunderstandings.

Thanks

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Lori Kelly

12 years ago

Kay, that sounds logical. With the affiliate disclaimer, the company should have had some idea that it very well could be an affiliate's site.

Good luck Jeannie.

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JohnMcCabe

12 years ago

Originally Posted by Lori Kelly

Kay, that sounds logical. With the affiliate disclaimer, the company should have had some idea that it very well could be an affiliate's site.

Good luck Jeannie.

Maybe the affiliate disclaimer needs to be a little more obvious with this company's products.

Although if the misspellings in the email you quoted, Jeannie, are theirs and not just hurried typing on your part, it does sound like one of those hinky services.

Thanks
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Jeannie Crabtree

12 years ago

John, I hurried through that and admit to be a poor speller.

Originally Posted by JohnMcCabe

Maybe the affiliate disclaimer needs to be a little more obvious with this company's products.

Although if the misspellings in the email you quoted, Jeannie, are theirs and not just hurried typing on your part, it does sound like one of those hinky services.

Thanks

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Jon Patrick

12 years ago

Hopefully they are not really dumb enough to run people off who are trying to sell their products for them. Good luck resolving this.

Thanks

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Jeannie Crabtree

12 years ago

John

This is the disclaimer I have on my site, it shows up on each page, so no one can miss it. Before that, I had it in the about page.

zzzzz .com is a participant in the Amazon Services LLC Associates Program, an affiliate advertising program designed to provide a means for sites to earn advertising fees by advertising and linking to amazon.com.

Certain content that appears on this site comes from Amazon Services LLC. This content is provided "as is" and is subject to change or removal at any time. So if you see something you want it is best to get it.

I think someone did not look into it very far, they just saw it on my website, checked their list whether I was a distributor and fired out a letter.

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eplanellas

12 years ago

I think the whole case is very odd. If it were me, I would just stop promoting their products. Evidently they do not appreciate the business you are sending their way. Sometimes people go overboard with this copyright protection thing. I mean really, it's their fault not yours. They should understand all that comes with promoting on Amazon and be aware that they could have people pushing their products. If it were me and I found out that others wanted to be an affiliate for my company, I wouldn't complain. So silly.

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fluffythewondercat 12 years ago

Does this "Amazon supplier" have their own retail website?

fLufF
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- Jeannie Crabtree 12 years ago
  
  Yes they do.
  
  Originally Posted by fluffythewondercat
  
  Does this "Amazon supplier" have their own retail website?
  
  fLufF
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athenistic 12 years ago

Originally Posted by eplanellas

If it were me and I found out that others wanted to be an affiliate for my company, I wouldn't complain. So silly.

I know, right? Extra exposure is bad! Extra sales are bad! Bad bad bad!

If I got that letter, I would have told them that I would comply if they stopped selling via Amazon, who granted me the right to the material in their possession via their program policies.
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Randall Magwood

12 years ago

I wouldn't put too much stress and effort into the manner - especially since you haven't made any sales with them. Probably just in your best interest to quit them and take your skills and business to another supplier (if another one exists).

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kindsvater

12 years ago

Without seeing your website to gain context, which is very important, if they continue to be idiots you could send them a counter cease and desist demanding that they stop letting their products be listed on Amazon. Let them know several million Amazon affiliates may be putting their company name and product images on websites. And, of course, request they identify every product photo and text they claim as infringing and that they provide proof of their copyright registration.

Often, these idiotic letters are not well thought out as to what will happen next.

.

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fluffythewondercat

12 years ago

Are they actually a supplier *to* Amazon or a 3P seller?

fLufF
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Jeannie Crabtree

12 years ago

Fluffy,
I had spoken to someone at Amazon and used Amazon support system as well. No one mentioned a third party seller when I went through this whole scenario with them.

So I took a look - it is sold by a third party. Thank you for asking that question.

So this puts it in a new light. I am not a lawyer, but under these circumstances, the company may have grounds for complaint. I will have to contact Amazon again, to let them know about this. I doubt the third party seller even thought about this possible problem.

I am not stressing out about it. The products are all ready in my trash on wordpress. It was a good line, high quality. But there are plenty of others. There always seems to be these little speed bumps in business... We just have to keep moving forward.

Originally Posted by fluffythewondercat

Are they actually a supplier *to* Amazon or a 3P seller?

fLufF
--

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kindsvater

12 years ago

Originally Posted by Jeannie Crabtree

So I took a look - it is sold by a third party

Doesn't matter. As an affiliate you have an express license to promote and use all content on Amazon, whether fulfillment is by Amazon or through a third party. That includes, pictures, product descriptions, content, etc.

As a necessary adjunct of that license you have the right to refer to trademarks and logos to appropriately identify the seller of the products you promote. That is why we have trademarks: to identify and match the seller with a product so there is no customer confusion.

Reviewing one of the agreements to be a third party seller, the "Participation Agreement," paragraph 20 says:

20. Your Grant. By entering into this Participation Agreement and listing an item, you grant us a royalty-free, non-exclusive, worldwide, perpetual, irrevocable right and license to use, reproduce, perform, display, distribute, adapt, modify, re-format, create derivative works of, and otherwise commercially or non-commercially exploit in any manner, any and all of the content you submit to Amazon and its affiliates, and to sublicense the foregoing rights to our affiliates and operators of any website or other online point of presence (other than the Site) through which the Site and/or products or services available thereon are syndicated, offered, merchandised, advertised or described;

....

nothing in this Participation Agreement will prevent or impair our right to use without your consent the content and any other materials provided by you, to the extent that such use is allowable without a license from you or your affiliates under applicable law (e.g., fair use under copyright law, referential use under trademark law, or valid license from a third party)....

In non-lawyer terms, the third party seller knows there will be affiliates and agrees the affiliates can use all of the merchant's content on Amazon.

In addition, Amazon and affiliates can, even without the merchant's permission, make fair use of copyrighted material and refer to trademarks to market the merchant's products.

The seller either needs to remove itself entirely from Amazon or stop sending ridiculous letters.

.

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Jeannie Crabtree

12 years ago

Brian, I appreciate your legal information on this. It helps me be clearer about what I can do.

Originally Posted by kindsvater

Doesn't matter. As an affiliate you have an express license to promote and use all content on Amazon, whether fulfillment is by Amazon or through a third party. That includes, pictures, product descriptions, content, etc.

As a necessary adjunct of that license you have the right to refer to trademarks and logos to appropriately identify the seller of the products you promote. That is why we have trademarks: to identify and match the seller with a product so there is no customer confusion.

Reviewing one of the agreements to be a third party seller, the "Participation Agreement," paragraph 20 says:

In non-lawyer terms, the third party seller knows there will be affiliates and agrees the affiliates can use all of the merchant's content on Amazon.

In addition, Amazon and affiliates can, even without the merchant's permission, make fair use of copyrighted material and refer to trademarks to market the merchant's products.

The seller either needs to remove itself entirely from Amazon or stop sending ridiculous letters.

.

Thanks

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David Keith 12 years ago

Originally Posted by kindsvater

In non-lawyer terms, the third party seller knows there will be affiliates and agrees the affiliates can use all of the merchant's content on Amazon.

.

The way I understand this though, the merchants only have to give amazon and thus its affiliates the rights to the trademarked images and such the merchant uses on the amazon site.

So it is possible that a seller could chose not to put certain trademarked material on the amazon site and thus affiliates would not be able to use any and all material they find on a merchants site.

I will use my $1 credit for legal advice here if you don't mind Brian (inside joke)
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- kindsvater 12 years ago
  
  David, the $1.02 response is that if someone is going to sell on Amazon there should be some intellectual property on Amazon, copyright and/or trademark:
  
  - Product picture
  - Product name
  - Manufacturer
  - Seller Name
  
  For a third party seller they will also be providing the product description.
  
  As for trademarks, it doesn't matter if the merchant supplies anything or not to Amazon or "grants" anything or not. Remember, a trademark does not grant monopoly rights on every use of the mark. The purpose of a trademark is to identify the seller and prevent a competitor from using a similar name that would create consumer confusion.
  
  Thus, Acme has the right to keep Widget from also offering a Bunz-a-Bustin weight loss product.
  
  But Acme cannot prevent you, me, the media, retailers, affiliates, etc., from referring to the product by name, stating that Acme is the seller (eg., so consumers know who to sue when it injures them), and providing a picture so consumers know what the heck they are buying.
  
  Thanks
  
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  Happybidr 12 years ago
  
  Originally Posted by kindsvater
  
  Thus, Acme has the right to keep Widget from also offering a Bunz-a-Bustin weight loss product.
  
  Hey! Where can I buy that Bunz-a-Bustin weight loss product?
  
  Jeannie, are you ever going to tell us what company you are talking about, and if not, why not?
  
  Thanks
  
  1 reply
  
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  Jeannie Crabtree 12 years ago
  
  It is a Cosmetic company. Other than that, I can't say, as it is against Warrior forum policy. I would probably not have named names anyway.
  
  Originally Posted by Happybidr
  
  Jeannie, are you ever going to tell us what company you are talking about, and if not, why not?
  
  Thanks
  
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Jeannie Crabtree 12 years ago

Just to be clear, it is a letter from the original company. So the seller is not the one who sent the letter. But I do get what you are saying.

I appreciate the info. I am sure this will come in handy for someone else as well. This is bound to happen more than once.

Originally Posted by kindsvater

The seller either needs to remove itself entirely from Amazon or stop sending ridiculous letters.

.
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azmanar

12 years ago

Hi,

The party sending you the C&D probably haven't even realized their products are on Amazon. Even if they knew, they didn't even read the TOS.

If their responses are negative, just drop them and make a complaint to Amazon. The company can retire their products from Amazon afterwards.

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Jeannie Crabtree

12 years ago

I agree, that is the way it seems. Funny, as the affiliate info is clearly on the site.

I am still puzzled as to why Amazon did not speak to the company, when they had the info from me. I guess they feel their TOS covered it and they did not need to talk to anyone.

Originally Posted by azmanar

Hi,

The party sending you the C&D probably haven't even realized their products are on Amazon. Even if they knew, they didn't even read the TOS.

If their responses are negative, just drop them and make a complaint to Amazon. The company can retire their products from Amazon afterwards.

Thanks

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David Keith

12 years ago

I guess my point is that it the amazon TOS does not give an affiliate the right to use any image or content about a given product found on the internet. The amazon TOS only gives affiliates the right to use any content found on the amazon site for any given product or merchant.

Thus it is possible, although unlikely, that an affiliate could get content or images from a source other than amazon for a given product and as such still actually be violating rights a merchant does indeed retain even though they sell on amazon.

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Jeannie Crabtree

12 years ago

I would agree with that. I get my information and pics through API or directly from the Amazon product page.

Originally Posted by David Keith

I guess my point is that it the amazon TOS does not give an affiliate the right to use any image or content about a given product found on the internet. The amazon TOS only gives affiliates the right to use any content found on the amazon site for any given product or merchant.

Thus it is possible, although unlikely, that an affiliate could get content or images from a source other than amazon for a given product and as such still actually be violating rights a merchant does indeed retain even though they sell on amazon.

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Kurt

12 years ago

Although it doesn't sound like it in Jeannie's case, I believe there is another possibiity: The seller didn't have the rights to use the images.

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megansays

12 years ago

I am very curious to see how this turns out. I'm sure Amazon's legal team has considered what happens if a distributor is selling products that the parent company does not want listed there (and why?), but it's interesting to follow how it trickles down to affiliates.

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fluffythewondercat

12 years ago

Originally Posted by megansays

I am very curious to see how this turns out. I'm sure Amazon's legal team has considered what happens if a distributor is selling products that the parent company does not want listed there (and why?), but it's interesting to follow how it trickles down to affiliates.

The "why" is often because the product(s) is heavily counterfeited.

This is believed to be the reason why Amazon no longer allows 3P sellers to sell Gillette products. Amazon sources them directly from Gillette. Who knows where the 3P stock comes from?

We will undoubtedly see this with more companies. I don't know or believe that is the problem in this case -- this one seems convoluted.

fLufF
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Danny Woolard

12 years ago

It's interesting to read the letter..I may be getting one soon.

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Tim Franklin

12 years ago

(this is not legal advice)
Very interesting topic, reading the letter, it would appear that they are in fact objecting to the use of the logos as part of the website, might I inquire if the website was a custom designed website or was it a template where images might have been used as part of the website and not the product presentation.

While it appears that use of logos, and other fair use material might be permissible, under certain circumstances, use of logos, images, and text on a website not associated with the sales process, then perhaps that is the basis of what they are objecting to of course without knowing or seeing the website it would be impossible to just guess about what they might or might not be objecting to, it does seem a little odd to bite the hand that feeds you.

However, if someone has duplicated thousands of template websites and also advertising say for example adult content at the same time, then perhaps they are systematically reducing the risk to the brand and not really the sales process.

Often websites use copyrighted material thinking that they can do that because they are working as an affiliate but the truth is that while you might use some small amount of information, you really should not copy and present material wholesale.

(Again we dont know what to think because we dont know what the website is or how it is designed or what graphics are used and in what way they are used.)

So please pardon covering different aspects of the situation.

I suspect that they do in fact have a valid claim, but of course in all such situations you should find an Attorney in your jurisdiction and avail yourself of their hopefully very competent opinion.

Just reading between the lines of the letter, it appears that they have some specific usage of images and logos at certain places on your website.

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Jeannie Crabtree

12 years ago

Hi Tim, I use Wp-Amazone on the site I had their products on (actually two sites). I get my information and pics through API.

I did not use a pic of their product in the header, etc. Just on the product posts, pulled in by the software.

The template is a free version of Flexibility3, so no custom design.

Originally Posted by Tim Franklin

(this is not legal advice)
Very interesting topic, reading the letter, it would appear that they are in fact objecting to the use of the logos as part of the website, might I inquire if the website was a custom designed website or was it a template where images might have been used as part of the website and not the product presentation.

While it appears that use of logos, and other fair use material might be permissible, under certain circumstances, use of logos, images, and text on a website not associated with the sales process, then perhaps that is the basis of what they are objecting to of course without knowing or seeing the website it would be impossible to just guess about what they might or might not be objecting to, it does seem a little odd to bite the hand that feeds you.

However, if someone has duplicated thousands of template websites and also advertising say for example adult content at the same time, then perhaps they are systematically reducing the risk to the brand and not really the sales process.

Often websites use copyrighted material thinking that they can do that because they are working as an affiliate but the truth is that while you might use some small amount of information, you really should not copy and present material wholesale.

(Again we dont know what to think because we dont know what the website is or how it is designed or what graphics are used and in what way they are used.)

So please pardon covering different aspects of the situation.

I suspect that they do in fact have a valid claim, but of course in all such situations you should find an Attorney in your jurisdiction and avail yourself of their hopefully very competent opinion.

Just reading between the lines of the letter, it appears that they have some specific usage of images and logos at certain places on your website.

Thanks
1 reply

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Tim Franklin

12 years ago

Again this is not legal advice, if you need to pursue this matter then the only way to proceed is to find a competent attorney in your jurisdiction, often you can obtain advice in a number of affordable locations both online and offline.

I would not just write them or call them without at least speaking with someone so you know where you stand.

there must be thousands of websites that use the API to bring in content in the sales process, I have a ton of those myself, I have to agree with the consensus, here that they are off base, but of course still not seeing the site its just a guess just remember anytime you have meaningful conversations, (letters, phone calls, ect) those materials can be "discovered" seek advice, you would be surprised at how $50.00 can go a long way towards a good night sleep.

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Jeannie Crabtree

12 years ago

Tim, I appreciate your suggestions and concerns.

I pulled their information off my site(s) within their stipulated time, even though I questioned it.

thanks for the reminder that things need to be documented if I pursue anything with the company.

I don't plan on pursuing it, other than to get back to Amazon about this again. I don't think the company will be returning my phone call. They did not today.

Originally Posted by Tim Franklin

Again this is not legal advice, if you need to pursue this matter then the only way to proceed is to find a competent attorney in your jurisdiction, often you can obtain advice in a number of affordable locations both online and offline.

I would not just write them or call them without at least speaking with someone so you know where you stand.

there must be thousands of websites that use the API to bring in content in the sales process, I have a ton of those myself, I have to agree with the consensus, here that they are off base, but of course still not seeing the site its just a guess just remember anytime you have meaningful conversations, (letters, phone calls, ect) those materials can be "discovered" seek advice, you would be surprised at how $50.00 can go a long way towards a good night sleep.

Thanks

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Jeannie Crabtree

12 years ago

I thought of one other thing that may complicate this a little. My website name and a company name that deals with this type of product are very similar. Some words are just turned around.

I did not bring it up, as I did not see an need. But thinking about it tonight, The letter was cc'd to the owner of the physical company.

I was thinking the originating company was just throwing a wide net to contact everyone that may have had anything to do with the webiste. To me it was sloppy work, as I don't live in the same town and have my name, address and 800 number on there, which is quite different than the similar sounding company.

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Jeannie Crabtree

12 years ago

I am happy to say that I got an email from Amazon this morning. I kept wondering why they were not addressing the problem, but told me to contact the company.

Still, I am the one that is supposed to let the company know this as well ....

Hello again.

I submitted your information regarding your cease and desist letter from xxxxxx Cosmetics. I was informed that you should direct xxxxxx Cosmetics to Amazon. The complainant can contact us directly to file a complaint.

Copyright/Trademark Agent
Amazon.com Legal Department
Rest of address

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kindsvater 12 years ago

Originally Posted by Jeannie Crabtree

I was informed that you should direct xxxxxx Cosmetics to Amazon. The complainant can contact us directly to file a complaint.

That should end it. It would be very surprising if the cosmetics company wants to sue Amazon. Even if the cosmetics company sued you, you would cross-complain against Amazon for indemnity, and that would effectively mean the cosmetics company is suing Amazon. The potential bad publicity for the cosmetics company is unbounded. And, Amazon would surely kick them off the website.

.
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crissie

12 years ago

I learned an invaluable lesson a few years ago from a friend who was caught up in something very similar to your situation --- Never call. Put everything in writing. Request all replies/communication be done in writing. Just in case.

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nasuryono

12 years ago

This is quite a rare occasion. As far as I know, as long as you are using the images, brand etc. to promote the company itself, it should not be a problem.

However, if you link to the competitors while using the brand, logo, etc. then you can be in some real trouble.

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Got a cease and desist letter from an Amazon supplier I affiliate for

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