Update: White House Identifies Amazon Foreign Domains as “Notorious Markets” for Counterfeit Goods
Kelley Drye Client Advisory
May 7, 2020
As we have previously advised, the Trump Administration is targeting the sale of counterfeit goods on e-commerce platforms. Early this year, the Department of Homeland Security issued its report to the White House on “Combating Trafficking in Counterfeit and Pirated Goods,” in response to which the White House entered its Executive Order aimed at blocking the sale of contraband and counterfeit goods online to U.S. customers.

In its latest move, on Wednesday, April 29, the Administration’s Office of the United States Trade Representative (the “USTR”) released its 2019 Review of Notorious Markets for Counterfeiting and Piracy (the “Notorious Markets Review”) including Amazon’s marketplace domains in Canada, the U.K., Germany, France, and India. This is the first time that the foreign domains of a U.S.-based e-commerce platform have been included in the USTR’s annual Notorious Markets Review.

According to the Notorious Markets Review, submissions by IP rights owners highlighted the challenges they face with high levels of counterfeit goods being sold through the Amazon foreign domains. For example, rights owners expressed concerns Amazon does not sufficiently vet sellers on its platforms and that seller information displayed by Amazon is often misleading and therefore creates difficulty for consumers and rights owners in determining who is selling the goods. Rights owners also expressed frustration with Amazon’s counterfeit removal processes, commenting that they were long and burdensome even for those enrolled in Amazon’s brand protection programs.

In their submissions, IP rights owners requested that Amazon take additional steps to improve the efficacy of its brand protection programs. In particular, rights owners request that Amazon collect sufficient information from sellers to prevent repeat infringers from creating multiple storefronts; provide detailed and accurate seller information to consumers and rights owners; be more responsive to complaints of IP violations, and generally be more proactive in preventing counterfeit goods from being sold on the platform.

While inclusion on the USTR’s list does not carry any legal penalty, there is a public relations concern for Amazon in being identified alongside various other e-commerce platforms and physical markets where counterfeit goods are sold. Indeed, Amazon responded to the Notorious Markets Review by proclaiming that its inclusion on the list is “wrongful” and accusing the administration of advancing a “personal vendetta” against the company and its CEO.

We will continue to monitor developments in this area and keep you updated.