Dear Seller Performance Team,
We are writing to request reinstatement of its listing for ASIN B01LZGPNAI-
Tough Headwear Ear Muffs for Men & Women- Winter Ear Warmers/Covers for
Cold Weather- Behind The Head Style Black Fleece Earmuffs.
Here is the key information:
Complaint ID: 6627623821
Seller name: Tough Outfitters
Seller ID: A348773ROELXXX
Seller email: touXXX@evergreensupplypr.com
ASIN: B01LZGPNAI
Infringement Type: Counterfeit
Trademark Asserted: 3089225
We believe the complaint is in error and our listing should be reinstated
because ASIN B01LZGPNAI is not a counterfeit.
A counterfeit is a fake mark and the asserted mark appears to be trade
dress on product configuration, which only protects the non-functional
appearance of a product as an indicator of source (see 532 US 23, 28).
Trade dress does not and cannot be used to create a monopoly on a product
type.
In this case, we are not using a fake mark or anyone else’s mark but
instead are selling a generalized style of behind the head type earmuffs,
like hundreds of other companies. Plus, the appearance of our Tough
earmuffs is unmistakably different than the asserted mark. Our Tough
earmuffs (shown on the left) boldly display our TOUGH logo on the center
portion between the ear coverings. And, the Tough earmuffs have a very
different shape than the asserted mark (shown on the right). This
different shape includes differences in the overall shape, shape of the top
edge, and shape of the ear covers. In light of these stark visual
differences in both branding and shape, there can be no infringement
because no reasonable consumer could think that these two behind the head
type earmuffs belong to the same company.
In short, ASIN B01LZGPNAI cannot be a counterfeit because we are not using
a fake mark or anyone else’s mark, and our Tough earmuffs in both branding
and shape are unmistakably different than the asserted mark. As such, we
submit that the complaint is in error, and our ASIN should be reinstated.
We also offer the following information to assist in the processing of our
request.
What went wrong (Root Cause):
Based on our review of the facts surrounding this removal, we could have
been more prepared and organized to respond to 180’s complaint, whether we
found the reported issue had merit or not.
What we have done to fix and prevent this from happening again (Plan of
Action):
- We have reviewed all Amazon policies, guidelines and help pages,
especially the ones regarding Amazon’s Intellectual Property Policy; and
- We have engaged the services of Workman Nydegger, a widely respected
IP law firm with significant experience in e-commerce matters (see
www.wnlaw.com). Workman is helping us develop best practices and will
help audit our seller account regularly to ensure compliance with Amazon’s
Intellectual Property Policy for Sellers and ensure customer confidence.
We believe we have fully identified why this complaint is in error and
taken steps to resolve and handle similar problems in the future.
We respectfully request that our ASIN be reinstated.
Thank you,
