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IP Enforcement and COVID-19

Five things to know about protecting IP rights

The COVID-19 (coronavirus) crisis has made protecting intellectual property (IP) rights from infringement on Amazon more important than ever. With people forced to stay home and retail stores closing across the country, sales on Amazon have surged. In this climate of increased sales, IP rights owners must be especially active in enforcing their rights against Amazon sellers of infringing products. Fortunately, Amazon provides a number of tools that rights owners can use to monitor for infringement and seek removal of infringing listings.

1. Amazon's Online Form for Reporting Infringement
Amazon provides a publicly available online form for rights owners to report infringing listings. This can include reports of trademark infringement, design patent infringement, and even utility patent infringement. Amazon's online form for reporting infringement can be found here. Anyone with a federal trademark or patent can report infringement. One caveat with respect to patent infringement is that if a patent owner cannot direct Amazon to a Federal Court or International Trade Commission (ITC) decision finding patent infringement, then Amazon will not remove the reported listings.

2. Amazon's Utility Patent Neutral Evaluation Program
For patent owners without a court or ITC decision finding patent infringement, Amazon has introduced a new, experimental program for quickly and cost-effectively adjudicating patent disputes, called the Utility Patent Neutral Evaluation program. Under this program, a patent owner can assert one claim of one unexpired U.S. utility patent against sellers of infringing products on Amazon. Amazon then selects a neutral, third-party patent practitioner to act as an arbitrator. Aside from non-infringement, the only defense a seller can assert is invalidity based on a prior district court, ITC, or USPTO decision finding the patent invalid or independently verifiable evidence that the accused product was on sale more than one year before the patent's earliest effective filing date. No discovery is allowed, and the dispute is decided only on briefing. If the evaluator decides that the patent is likely infringed, Amazon will remove the seller's listings. Importantly, an evaluator's decision finding infringement can be relied upon in the future for purposes of filing traditional infringement reports via the online public form or Amazon's Brand Registry.

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