Instructions: Find Replace [Company Name] [Store Name] [Brand Name]

The Right to make Unauthorized Resales of Trademarked Goods.

Dear Sir/Madam:

We want to indicate an incompatible action taken by Amazon against [Company Name] that is
contradictory to in-house policies of Amazon and US corporate and trademark laws. We
request that Amazon intensify and investigate this matter properly, according to its internal
procedures. Actions should be reversed against [Company Name] after proper examination of
the case, as now Amazon’s actions are erroneously restricting [Company Name] from selling its
inventory legitimately on Amazon’s platform.

[Company Name] runs the storefront [Store Name] on Amazon, which sells beauty and hair care
products. [Company Name] buys these stocks indirectly from the rights owners (in this
representative case [Brand Name].

Company Name] warrants that the products it obtains and sells are:
(i) authentic and meeting with standard way of complying with legal and ethical
requirements
(ii) (ii) manufactured by or under authority and supervision of [Brand Name],
(iii) (iii) fresh and in the same state as where and when they were manufactured.

[Company Name] then stores the stock at a suitable temperature in compliance with good
practice, just as Amazon maintains temperatures in its own warehouse. After that, [Company
Name] without any alterations, instantly sells the product to customers in the United States
through Amazon’s marketplace.
As well as [Company Name] assures that product price is propitious to the end-user in
accordance with common practice.

[Brand Name] has thus registered a complaint with Amazon alleging that [Company Name] is
selling counterfeit products, in order to take control of all sales. In actual fact, [Brand Name]--
like various brand owners--wants to control not only the original sales l and manufacturing
process of its products but also any manufacturer's suggested retail price and parent to
subsidiary sales.

Under US Trademark law, U.S. Courts have concluded that [Company Name]’s business
practices are completely legal, regardless of [Brand Name]’s authorization or lack thereof. The
United States law says that “once a trademark owner sells his product, the buyer ordinarily may
resell the product under the original mark without incurring any trademark liability.” Martin
Herend Imports, Inc. v. Diamond & Gem Trading USA Co. 112 F.3d 1296 1303 (5th Cir. 1997)
citing NEC Electronics v. CAL Circuit Abco, 810 F.2d 1506 (9th Cir) cert. denied 484 U.S. 851
(1987). Likewise, a brand owner cannot stop a sale simply because the brand owner considers
it unauthorized, as “trademark law does not apply to the sale of genuine goods bearing a true
mark, even if the sale is without the mark owner’s consent.” Shell Oil Co. v. Commercial
Petroleum, Inc., 928 F.2d 104, 107 (4th Cir.1991). Courts have repeatedly held that a reseller's
“[c]onduct must go beyond merely stocking and reselling to support a cause of action for
infringement.” Mary Kay Inc. v. Weber, 601 F.Supp 2d 839, 852 (N.D. Tex. 2009).

Recently in an intellectual property case, the U.S. Supreme Court ruled in a 7-1 decision to
reverse more than twenty years of precedent. The lower courts had expanded the rights of
intellectual property owners beyond the first sale, yet the Supreme Court held that “a
patentees’ decision to sell a product exhausts all of its patent rights in that item, regardless of
any restrictions the patentee purports to impose or the location of the sale.” Impression
Products, Inc. v. Lexmark International, Inc. 137 S. Ct. 1523 (2017).

To put it briefly, [Company Name] is doing exactly what the courts have determined the law
allows. [Company Name] is not infringing trademark law, nor violating on any rights by reselling
[Brand Name] products labeled and sold as such, as long as they are sourced from [Brand
Name] and not substantially modified before placing into the marketplace.

[Company Name] is unquestionably not engaging with the intention to counterfeit. A

counterfeiter refers “who seeks to trick the consumer into believing he or she is getting the
genuine article rather than a colorable imitation.” Gucci Am., Inc. v. Guess?, Inc., 868 F.Supp.2d
207, 237 (S.D.N.Y. 2012) (internal quotation marks omitted). [Company Name] is doing nothing
of the sort, and therefore the unlawful allegation by [Brand Name] that [Company Name] is
doing so is not only inaccurate but egregious.

In 1993, an appellate case was litigated addressing a very similar situation to the potential
dispute between [Brand Name] and [Company Name]. Matrix Essentials, Inc. v Emporium Drug
Mart Inc., 988 F.2d 587 (5th Cir.1993). Similarly [Brand Name], the plaintiff, Matrix Essentials
(“Matrix”), was the manufactured and trademark owner of hair care products. Matrix sold its
products to distributors who were contractually bound to sell only to licensed cosmetologists.
The defendant, Emporium Drug Mart (“Emporium”), a discount retailer, began selling the
products on its shelves and Matrix sued for trademark infringement.

At trial, Matrix acknowledged that Emporium was selling the products manufactured by Matrix
and that the products had not been tampered with. These are exactly the same requirements
that [Company Name] has shown to have satisfied in this case. Upon review, the appellate
court held that Emporium had not infringed the Matrix trademark. The Court explained that
Emporium’s stocking of genuine Matrix products did not create a likelihood of consumer
confusion. Matrix demonstrated that Emporium was selling the items without the “professional
consultation that is supposed to be available when a consumer chooses a Matrix product to
purchase.” Matrix further argued that “by stocking Matrix products, Emporium was deceiving
the public into believing that Matrix has authorized Emporium to do so.”
The Federal Appeals Court considered both of these arguments but ruled that neither argument
would implicate the Lanham Act (the federal Trademark Act) and thus, Emporium was entitled
to resell Matrix’s products (with or without Matrix’s authorization) and Matrix’s claims were
dismissed, immediately.

Undoubtedly, If you permitted to prevail, [Brand Name] and other likewise situated rights
owners would strive to employ the legal system to prevent [Company Name], and many other
Amazon sellers, from selling their items at a lowered price on Amazon marketplace. What the
Matrix case makes obvious is that [Company Name] is certainly acting within the law and that
[Brand Name] would lose this claim, should it move ahead to the tribunal.

Regrettably, Amazon’s Brand Registry has granted [Brand Name] and other brand owners with a
separate route to shut down [Company Name]’s Amazon-related resale operations. [Brand
Name] has signed up with Amazon’s Brand Registry and has repeatedly filed entirely
unsupported complaints against [Company Name], wrongfully claiming that [Company Name] is
selling counterfeit products. Amazon’s response has been to blindly trust these unlawful
charges and then promptly shut down any [Company Name] listings that have been
misidentified as contraband or counterfeit. As a result of [Brand Name]’s targeting of
[Company Name], Amazon is now restricting [Company Name] from selling legitimate [Brand
Name] items on Amazon’s marketplace. Amazon assumes that the brand owner is acting
honestly and unjustly considers that [Company Name] is chargeable. [Company Name] is then
placed in the adverse position of having to justify it is acting legally.

This process would not go as frustrating if Amazon had a transparent and intelligible rule for
validating the Brand Owners’ claims, and for allowing [Company Name] to furnish proof of its
legitimate conduct. However, Amazon’s process is neither justified nor coherent.

Amazon explains the process as follows in terms of service:

Amazon’s IP enforcement:

Responding to an IP infringement notice.

If you receive a notice or warning for infringement and you believe the rights owner or Amazon
made an error, you may appeal or dispute the claim.

Type of notice or warning Actions you may take

For a product you never listed on Amazon

Reply to the notification you received and let us know that you have never listed the reported
product. We will investigate to determine if an error occurred.

If you have an established relationship with the rights owner

If you have a license or other agreement that allows you to use the IP identified in the notice,
contact the rights owner who submitted the complaint to request a retraction. Your content
may be reinstated if we receive a retraction from the rights owner.

Trademark or Counterfeit infringement on the product detail page

Modify the product detail page or pages to ensure they do not infringe the trademark and then
email notice-dispute@amazon.com.

Trademark or Counterfeit infringement on the product or packaging

Use the Account Health Dashboard present in your selling account to provide an invoice or
Order ID that demonstrates the authenticity of the product. We will then re-evaluate the notice
and your content may be reinstated.

As the objections against [Company Name] invariably appear when [Company Name] does not
possess authorization from the rights owner but is selling the rights owners’ product, the only
relevant answer for [Company Name] is to “Use the Account Health Dashboard to provide an
invoice or Order ID that demonstrates the authenticity of the product.” [Company Name]
routinely replies by emailing the requested information to Amazon promptly after being
informed of a complaint submitted by a rights owner. In the case of [Brand Name], [Company
Name] has reacted by providing Amazon with the relevant documentation, proving that the
original source of its products being sold on Amazon is RAM Medical Inc., a well-known national
distributor of beauty and medical products.

We agree and understand that Amazon has a vital vested interest in ensuring that forged and
counterfeit products are not sold by, or with the assistance of, Amazon. At the same time, we
consider it is essential that Amazon not summarily recognized bogus complaints.

Indeed, Amazon’s own complaint form advises brand owners not to file a complaint without
actual evidence of infringement, or if the violation arises out of a contract dispute.
Nonetheless, there is ample proof that brand owners are ruining Amazon’s Brand Registry
system to unlawfully target, defame and shut down or shut out sellers such as [Company Name]
so that Brand owners can better command and control all the pricing and sales system made on
Amazon. Certainly, there is a flourishing industry of consultants who consults brand owners on
how to take action against online sellers. For instance: Uabide (www.uabide.come) has a
marketing pitch on their homepage that reads: “Identify who’s selling your product online and
take action against unauthorized resellers.” Similarly, Vantage BP www.vantagebp.com
promotes itself with the following: “We’re the first line of defense for stopping unauthorized
resellers.” These companies tout the point that they possess the expertise to assist brand
owners to register with Amazon’s Brand Registry and henceforth submit complaints to Amazon,
credible or otherwise. These complaints are designed with the intention to promote the
removal of these brands’ products being sold by an “unauthorized” reseller. As noted above,
trademark law never entitles a brand to remove “unauthorized” sellers.

As indicated above, we require that Amazon review the provided documentation by [Company
Name] in support of its claim that it is selling legitimate [Brand Name] products, and reverse its
decision to restrict [Company Name]’s ability to sell these products on Amazon’s platform.

We also demand that Amazon revise its practice of assuming that all complaints filed against
[Company Name] have legitimacy, despite a lack of provable evidence. [Company Name] is only
selling products obtained from legitimate rights owners.

We would be fascinated and honored to serve collectively with Amazon in order to eliminate
flaws and to better design a process that can ably keep counterfeit items off Amazon while
maintaining the right of “unauthorized” resellers to sell their products legitimately on Amazon.