Are you facing the frustration (and cost) of playing whack-a-mole with counterfeit and infringing products on Amazon and other online marketplaces? If so, the newly enacted INFORM Consumers Act could be a major new tool in your fight against retail theft and counterfeiting on online marketplaces.
Conversely, if you are an online retailer that has had more than 200 separate sales and grossed more than $5000 in a year on any of the larger marketplaces, you can expect to be asked to provide much more information about your business, including your name, email address, phone number, tax identification number, and bank account details. If you sell more than $20,000 of goods per year, your name and address must also now be included in your public product listings or order confirmation messages so that buyers can contact you directly.
If you are facing the prospect of fighting ongoing infringement, information regarding the identity and location of bad actors could be key to stopping infringing activity at its source. Until now, virtually anonymous sellers have faced little risk when offering counterfeit or infringing products in online marketplaces because, even if an infringing product were to be removed, the seller could immediately place 10 more infringing listings under different names.
The INFORM Consumers Act (which stands for Integrity, Notification, and Fairness in Online Retail Marketplaces) requires the large online marketplaces—including Amazon, eBay, Wayfair, Facebook Marketplace, and many others—to collect, verify, and share with buyers certain information regarding high-volume sellers and to suspend sales activity for sellers that do not provide the required information. Online marketplaces that do not comply with these requirements face penalties of more than $50,000 per violation. By requiring the disclosure of seller information, the INFORM Consumers Act will allow you to contact, and potentially seek legal action against, an infringer directly, rather than having to police these marketplaces for individual products being sold by the same (previously anonymous) infringers indefinitely.
On Amazon, one can use the “Sold by” link under a product’s price information to view the seller’s “Detailed Seller Information,” including the business’s name and address. Additional contact information for sellers may also be included on product order confirmation forms. Amazon sellers can find additional details about compliance with Amazon’s information collection requirements through Amazon’s Seller Central portal.
For more information about protecting your intellectual property rights against infringers in online marketplaces or complying with marketplace requirements, please contact the authors or your attorney at McCarter & English, LLP.