There is no such thing as “effectively counterfeit”, goods are either genuine to their own identity or they are not. Advertising is a different area altogether in the eyes of the law.
We might all have been brainwashed into what Amazon wants the law to be, and Amazon may even be able to apply it’s own psuedo law (dare I say counterfeit law) in so far as very few are equipped to take them on and as such they can simply apply rules which not only go above the law but actually could violate the law (EG destruction of genuine goods with proof of ownership), but it does not mean that they are correct in what they are doing.
You may well come to the conclusion that it’s best business practice to avoid getting into these situations, and I’d certainly agree with you on that, but it doesn’t mean that they are acting correctly.
But look at it from the other point of view.
The seller knowingly agrees to the conditions of sale. That includes an exclusive response from them, stating that goods are the same as the listing. If they are not, then they are counterfeit until proven different. ie. it’s on the seller to prove that the items are not counterfeit and not Amazon to prove that they are. If the seller can’t, then it’s not an unreasonable step to believe that the goods are indeed counterfeit.
Think about it. If you break the law, even unknowingly, there is no excuse, you still broke the law.
My point is simple, no matter how you advertise a product on an internet web page it does not have any impact on the authenticity of the product as it exist in the real world.
So, if an item in the real world does not try and pass itself off as something that it is not, does not bear any trademarks, logos, brand names, packaging, patents without licence etc or make claim on packaging to being made by an entity that it is not made by then it is not counterfeit.
The first paragraph you have linked is related to trade marks, if the item itself does not bear them then it wouldn’t be a trademark violation on the item (although it could be a trademark violation for use in advertising if the advert contained a trademark that the item did not contain, EG you are not allowed in an advertisement to sell Blue car company pattern parts and use the blue car company logo to advertise them)
The second paragraph you linked to has nothing to do with counterfeiting goods and is all to do with misleading customers to enter into a contract which I am quite happy to agree with.
I’ll flip it around, if the position is that the goods are counterfeit (legally, not “they don’t look like this picture”) then on what basis are they counterfeit?
There is no supposition in the eyes of the law that anything is counterfeit until proven otherwise, the burden of proof needs to substantiate that something is illegal not the other way around, it’s an extension of the innocent until guilty principle.
I would be very interested if you are able to provide a link to terms within Amazon’s seller agreement that makes it possible for Amazon to destroy goods simply because they were listed under the incorrect ASIN.
In this case it goes a step further, the seller has provided proof of ownership and origin which as far as I can tell is not disputed and there is not a single piece of evidence provided thus far on here to back up why Amazon thinks they are counterfeit beyond them being listed under the incorrect ASIN.
As someone said above, if you sent Addidas trainers to a customer on a Nike advert, either by mistake or on purpose, it does not make the trainers by Addidas counterfeit, does not give the customer an automatic right to assume they are counterfeit and in fact although the customer is covered by the consumer rights act, it is the customers responsibility to ensure they look after those goods until the goods are returned to the seller or some other form of an agreement constituting a contract is formed between the buyer and seller to replace the original which was not honored.
I realise that you didn’t reply to me in this, but it’s where you’re mostly coming from.
I see your point, but “Innocent until proven guilty” does not apply in the real world.
If you are accused of a crime, and there is sufficient evidence to show you ‘may’ be guilty of that crime, then your rights can be removed.
It especially applys to selling products. Trading standards will seize stock first and ask for Invoices later. This isn’t an ‘Amazon’ issue.
I’m afraid it’s really not that simple, and those laws and regulations specifically apply.
If you’re selling in a shop a customer can view the item before purchase and make an informed decision, if you’re selling online then the customer is reliant on your description alone.
If you describe a product as “Brand A” then the product must be “Brand A”, you can’t substitute it with “Brand B”.
It doesn’t matter if the original brand was ‘Nike’ and yours is ‘Niko’ or ‘Addidas’
You’re getting hung up on the word ‘Counterfeit’ by thinking it only applies to something that tries to be an ‘exact’ copy of something else.
That’s why those laws I posted make it clear that if a Trademark is used in the sale of the product, then that Trademark is a protected by IP rights. You can’t sell anything a “Brand A” unless it’s from, or authorised by “Brand A”
I’m going to try to stick to the points here so please don’t take my criticism personally.
Innocent until proven guilty is quite simply part of the law of the United Kingdom, it very much applies in the “real world” as it is one of the most fundamental laws that exist.
If you are suspected of a crime, then yes you may have your rights and freedoms restricted in the course of an investigation, you may be asked to provide evidence to substantiate anything you say in your defence (although you are not obliged to and failure to provide a defence is in itself not proof of guilt) but you absolutely remain presumed to be innocent until you are proven guilty. It is the law.
Now back to selling on Amazon. Counterfeiting and knowingly dealing in counterfeit items is a criminal offence.
So if you are doing that on Amazon, you can expect to get into all sorts of problems, Amazon themselves have a responsibility to ensure counterfeit items are not sold on the platform, I don’t think any of us would disagree or object to that.
As far as my understanding goes, what we have here is a Seller who has sent in the wrong item under a particular ASIN.
As far as has been explained here the item sent in did not bear any trademarks, logos, manufacturer references or any IP that infringes on the rights owner of the listing.
From that perspective there is absolutely no reason to indicate the item itself is counterfeit. As far as I have read at no point has Amazon or the rights owner of the item in the ASIN made claims about the items (and I mean the OP’s items, not the listing) sent in infringing on any IP.
If that understanding is a true reflection of reality then we do not have counterfeit goods and more than that there are no reasonable grounds to suspect they are counterfeit.
You correctly point out that Amazon has identified an item that isn’t the ASIN that it has been sent in as, there’s a whole bunch of consumer rights law which covers misleading advertising and item not as described issues and yes there absolutely is a distinction in the eyes of the law between a seller that has accidentally advertised and item incorrectly and one that has set out from the beginning to mislead the customer, you can be prosecuted and jailed for false advertising. You might even find that the ASIN advertising contains IP (trademarks, logos etc) that the OP does not have the right to use to advertise their own products. That’s an IP infringement in the listing, its a violation of policy, you could be charged and prosecuted for doing it in extreme cases.
None of that makes the underlying product counterfeit and the only reason that anyone has given here in these circumstances for Amazon being able to hold or destroy stock is if that stock is stolen or counterfeit.
I’d be interested to know exactly what the OP has accepted, I suspect that it relates to the trademark in the listing for the ASIN and not a violation for the stock itself but I would genuinely like to see the details Amazon have given of the violation.
Regardless of that, if you admit to something that you didn’t do, or admit to something you don’t understand then that admission is inadmissible.
I’m not sure if you understand that that is exactly what HAS happened?
The rights holder has reported, to Amazon, that the OP was using the Trademarked listing to supply items that have not been sourced via, or authorised by, the rights holder (and therefore considered counterfeit)
The ONLY way that the OP could contest this would be to supply a valid invoice, from an authorised supply chain, which they obviously cannot do.
The OP has then acknowledged, to Amazon, that the complaint was valid.
It doesn’t matter if the OPs item itself bore any Trademarks, the products were sold (or attempted to be sold) using that Trademark.
An IPO Trademark in, and of itself, is also a protectable asset. Not just the products / services that it might be applied to.
For example, you could not sell a product that is in every way identical to an i-Phone (but unbranded) by referring to it as an i-Phone to customers. Because the phrase ‘i-Phone’ is itself trademarked, making your product a counterfeit.