In our previous article, we discussed what design patents are and the issue of Amazon design patent infringement notifications.
In this article, we will take a look at design patent infringement, the consequences of infringing upon someone else’s design patent, and the steps that Amazon sellers should take once they have received a design patent infringement notice.
What Is Amazon Design Patent Infringement?
Design patent infringement occurs when a company or individual is in violation of the terms of a design patent.
For design patent infringement to be successfully claimed, the plaintiff must prove that an ordinary person would be unable to tell the difference between a patented design and the accused object’s design when both are placed side-by-side.
The Showerhead Example
Taking the general consumer’s knowledge level and cognitive ability into consideration, this product typically includes the head and the handle. In the following case, the height of the two showerheads is similar.
However, the respective design features, connection methods, and proportions of the two (head and handle) can easily be differentiated when the products are shown side-by-side. The differences between the showerheads are significant:
- Rows and columns of the spray holes.
- Separation of the spray holes and the surface type (line or strip.)
- The button is only present on one of the products.
- The screw feature at the bottom is only present on one of the products.
- The angle of the showerheads.
- The proportions of the showerheads and handles, and how they are connected.
What Are the Consequences of Amazon Design Patent Infringement?
If you infringe on someone else’s patented design, you may face:
Court appearances and the associated costs can be devastating for Amazon businesses large and small, not to mention the stress involved in the resolution of the infringement.
Losing your profitable Amazon listing is bad enough, but there are further legal implications involved when dealing with an amazon design patent infringement allegation. There are multiple options available to patent owners in the event of design patent infringement.
To cut a long story short, if you infringe on someone else’s patent and you lose the lawsuit, you may face:
Damages You May Face for Amazon Design Patent Infringement
Damages are awarded to patent owners who can prove that someone else has infringed on their patented invention, or in this case, patented design.
There are different types of patent infringement damages that can be awarded; the most popular are:
- Lost Profits
Lost profits relate to monies that the patent owner could have made if it wasn’t for the wrongful infringement of the patent. The issue here is that the patent owner must prove that their business suffered specifically due to the infringement.
- Reasonable Royalties
If lost profits cannot be awarded, then reasonable royalties are the minimum damages that can be awarded. A reasonable royalty is compensation awarded based on a hypothetical agreement that would have been made between the two parties prior to any infringement scenario.
- Total Profits
There is an additional remedy available to design patent owners that enables them to claim the infringer’s profit (total profits.) Total profits refer to the entire profit made from the sale of the product to which the patented design is applied. The patent owner lost profits because people bought the infringing product instead of the genuine one.
Receiving an Amazon Design Patent Infringement Notification
When it comes to receiving an Amazon design patent infringement notification, the following section of Amazon’s Intellectual Property Policy for sellers gives the following advice:
If an Amazon seller receives an amazon design patent infringement notification, the reported product will be blocked, or even more devastating; the entire account could be suspended.
Even if the infringement accusation is not based on factual evidence at this stage, the seller still needs to complete a time-consuming follow-up procedure which typically involves replying to the notification, submitting a request for a retraction, or submitting an appeal with the required information and legal documentation. Furthermore, the seller can also face losing his or her selling privileges.
It’s an unfortunate reality that most Amazon sellers have little to no knowledge about the intricacies of Intellectual Property Law and patent infringement, so questions such as “what am I supposed to do when I get reported for design patent infringement?” appear a lot on the Amazon seller central forums.
Amazon sellers should follow our simple checklist as a first step towards discovering more about whether or not their product is indeed infringing on a patented invention:
- First of all, check the status of the patent to see whether it is active or not. Ensure that the infringement notification is not due to the work of a patent troll who is using expired patents to threaten you.
- Check to see if the alleged infringed patent is even related to your product. Check the patent claims carefully for any similarities.
- Compare the design patent image with your product side-by-side. We will teach you how to do this in a later article.
What If It’s Too Late?
If you are 100% sure that your product has infringed someone else’s patent, you may consider one of the following options:
Performing a Design Patent Search
Stay tuned for our next article, we are going to show you how to tell if your design is infringing on someone else’s patent.
