This is an article from AMZ Sellers Attorney®, an eCommerce appeal service managed by an intellectual property attorney and a registered patent attorney.  They provide free consultations on all IP and eCommerce-related issues.

If you sell on Amazon, Walmart, Etsy, Shopify, or any other online marketplace, you’re living inside an intellectual property (IP) system—whether you like it or not.

You feel it when:

• A brand files a bogus “counterfeit” complaint even though you bought genuine goods.
• A designer claims you stole their image or slogan.
• A marketplace pulls your listing for “trademark infringement” and you’re not even sure what you did wrong.

This article breaks down how IP actually works in eCommerce—what brands can and can’t do, what you can and can’t do, and what rights and protections sellers really have.

The Big Four: Types of IP You Actually See in eCommerce

1) Trademarks

Trademarks are intellectual property that protect brand identifiers, such as names, logos, slogans, and product trade dress (how a product looks to the public

The purpose of a trademark is to protect a brand’s goods from consumer confusion about the source (who is selling or marketing the products).

Examples:

• The word mark “NIKE”
• The swoosh logo
• “JUST DO IT” slogan
• Distinctive packaging trade dress

You infringe a trademark if you use it in a way that confuses customers into thinking a product, listing, or store is sponsored by, affiliated with, or coming from the trademark owner when it’s not.

Issues with eCommerce: 

Trademarks are not supposed to be generic or descriptive, but what we have seen in recent years is a number of eCommerce sellers are trademarking phrases with common generic keywords to garner the market on a particular niche of product.  For example, in the context of KDP publishing, publishers will choose a generic phrase that is a popular key word, such as “Mental Toughness,” “Home Apothecary,” or “No Grid Survival” and register it as a trademark to kill their competition.

We see it in marketed products, such as “Morning Recovery,” “Bond Multiplier,” or “Stove Shelf” where sellers have taken a popular descriptive or generic term and somehow been able to pass it through the trademark registration process.

This emphasizes the importance of thorough research before listing a product that you may think has a descriptive or generic name.   Failure to respect another seller’s or brand owner’s trademark can result in IP infringement enforcement online.

2) Copyrights

A copyright protects original creative works, such as literature, images, videos, music, and works of art.  Copyright gives a creator the monopoly on the work’s distribution, display and certain derivative works for a period of 20 years, and copyright attaches to the work automatically without requiring copyright registration.

Examples:

• Brand’s lifestyle and product photos
• A store’s custom product descriptions or buying guides
• Logo artwork (also might be protected by trademark)

Issues with eCommerce:

You infringe copyright when you copy or use someone else’s protected content without permission unless a legal exception (such as fair use) applies.  The fair use exemption is a narrow copyright exception that sometimes allows you to use someone else’s copyrighted work without permission—for things like commentary, criticism, news reporting, teaching, or parody—but it’s not a clear rule and is decided case-by-case using flexible factors such as purpose, nature of the work, amount used, and impact on the original’s market. It’s risky to rely on because there are no hard “safe” numbers or percentages, reasonable people (and courts) can disagree about whether your use qualifies, and platforms like Amazon or Etsy usually won’t do a detailed fair-use analysis—they’ll often just take your content down if they get a complaint, even if you might ultimately be right in a courtroom

Enforcement of Copyrights in eCommerce

Copyright holders may file a DMCA (Digitial Millenium Copyright Act) complaint with an online marketplace which results in the listing being removed by the marketplace.  If the seller feels the complaint is false, they may file a DMCA Counter Notice.  But filing a DMCA Counter Notice comes with a huge caveat: the copyright holder may file a declaratory relief lawsuit in federal court within 10 business days of the Counter Notice, and, upon filing, the online marketplace must put the listing back up.  To file the lawsuit, you must have a registration for the Copyright, which takes approximately one year to obtain, unless you file for an expedited process, which is fast but comes with a hefty fee.

3) Patents

There are two types of patents: utility patents and design patents.  A utility patent protects how something works or functions, and a design patent protects how it looks.

Examples:

• A specific foldable mechanism in a stroller (utility patent)
• A unique ornamental design for a phone case (design patent)

You infringe a patent by making, using, selling, or importing a product that falls within the patent’s claims—even if you never saw the patent and copied nothing.

Issues with eCommerce:

The applications of patents in eCommerce are complicated.  For example, Amazon has created two “Kangaroo courts” to handle patent infringement complaints that sellers make using the platforms “Report a Violation” (RAV) Tool.

Amazon Patent Express Evaluation (APEX)

A seller who holds a utility patent can make a complaint against another seller using the RAV Tool, and Amazon will either take down the listing or ask the patent rights holder to work out the matter with the alleged offending seller.  But Amazon has created a type of arbitration process called Amazon Patent Express Evaluation.  This is available to utility patent owners who, for a $4,000 fee (which is refundable if you win the APEX case) can obtain a determination by a neutral patent attorney on whether the patent is likely infringed by the marketing and sale of a particular product.  If the patent attorney’s opinion is that infringement is likely, the listing is taken down and the rights holder is given an APEX ID to use in taking down future offending products.

Design Patent Determinations

When the holder of a design patent makes a complaint through the RAV Tool, Amazon’s staff, without any particular legal training, will decide whether the product offered looks substantially the same as the patented design.

Just as we have seen issues with trademarking of generic terms, designs which should also be generic, such as a shoe or a glass, have passed Patent Examiner’s scrutiny at the USPTO and now cannot be sold on platforms such as Amazon.

4) Other Forms of Intellectual Property

Trade Secrets

Trade Secrets are confidential business information with economical value, such as formulas, customer lists, manufacturing processes, that is guarded from disclosure.  In eCommerce, trade secret issues often arise between manufacturers, brand owners and ex-employees who have had exposure to the trade secrets and then seek to commercialize them.  This has implications in eCommerce when buying from a supplier who could be manufacturing or supplying products created from proprietary molds or processes.

Celebrity Likeness

Celebrities have certain proprietary rights over the use of their likeness and often trademark their own names (such as Taylor Swift®).  In the eCommerce realm, we have seen this issue come up with the use of celebrity likenesses on book covers and in association with marketing products online.

The First Sale Doctrine

Much has been said about this common law doctrine, which is called the “right of first sale” in the United States, and “exhaustion of rights” in other countries.  The doctrine originated with copyrights has now been extended to trademarks, specifies that if you lawfully buy a genuine product, you generally have the right to resell that product without the rights owner’s permission.

This means:

• You can usually resell genuine Nike shoes, Apple chargers, LEGO sets, etc.
• You’re allowed to mention the brand name to identify what you’re selling (e.g., “Apple iPhone 14, 128GB – New”).

Implications in eCommerce

There are major limitations that brands often use against marketplace sellers.  And the bigger the brand, the more likely the marketplace will side with the rights owners:

1) Materially Different Products

If the product you are selling is not identical to the brand owner’s authorized version (different packaging, missing warranty or warranty not honored by manufacturer, different quality control) the brand will argue it is not covered by the right of first sale.

Example: Gray-market products or products meant for another region (parallel imports) with different regulatory labels or warranties.

2) Not in New Condition

Selling uses, opened or refurbished products as “new” can be both a marketplace policy violation and, in some cases, a trademark issue.

3) Misrepresenting Relationship

You can resell, but you cannot claim to be an authorized dealer or “official store” if you’re not. That crosses into trademark and unfair competition territory.

4) Using Brand Names and Logos in Listings and Marketing (Trademark use and misuse)

Generally Allowed (When Done Correctly)

• Nominative use of trademarks to describe genuine products (e.g., “Compatible with Apple iPhone 15” when accurate and not implying Apple made your accessory).
• Using a brand name in the title or description to accurately identify the product.
• Using the brand name in a comparative sense, provided it’s not misleading and follows platform rules (this is risky).

Usually Not Allowed (High Risk)

• Using the brand’s logo in your product images for your non-branded product.
• Making your listing title or store name appear like you are the brand owner.
• Using trademarked terms in ways that suggest sponsorship or endorsement.
• Slight spelling changes that still look like the brand (e.g., “Nyke”, “Adibas”).

Product Photos, Texts and Designs

1) Product Photos and Graphics

A brand’s product photos, lifestyle images, infographics, and videos are almost always protected by copyright. Copying them into your own listing—without permission—is usually copyright infringement, even if you’re reselling the genuine product.

Safer options:

• Take your own photos.
• Use manufacturer-provided media where you have explicit permission.
• Use marketplace catalog images only in the ways the marketplace allows.

Do not assume that a photo or image is in the public domain, and never use it unless you have a license from the copyright owner.  An easy bet is to obtain the image from a large stock image company, such as “Shutterstock.”

2) Listing Text, Manuals and Other Content

Although text descriptions in listings are generally not protected, many product descriptions are original creative content and covered by copyright. You can describe the product in your own words; you shouldn’t copy large chunks of someone else’s listing or website.

3) Slogans, logos and graphic designs

Slogans and logos are usually trademarks, and sometimes also copyrighted designs. Printing someone else’s logo/slogan on your own product or merch without permission is almost always infringement.

Caveat:

Marketplaces are not courts. They often remove content once a complaint is filed, without deciding who is legally correct. A complaint that might be weak or even abusive under intellectual property law may be good enough to knock out your listing or account in the short term.

Private Label, White Label and Brand Building

If you’re building your own brand, you’re on the other side of the IP fence and will want to establish and protect your intellectual property.  Major eCommerce platforms, such as Walmart and Amazon have their own brand registries which give sellers extra protection and perks such as the use of extra listing and brand content (A+ content).

Getting Your Own Trademark

• Choose a distinctive brand name.
• Check that no one else is already using a confusingly similar name for similar goods.
• Register a trademark in key countries/regions where you sell.
• Once registered, use ® properly; if pending, you might use ™ in some jurisdictions.

Working with Manufacturers

Common IP issues in private label include:

• Who owns the design? If the factory designs it, and it is not protected by a design patent, they may generally reuse it unless your contract says otherwise.
• Who owns the packaging and photography? Make sure agreements say you own the artwork and packaging design you paid for.
• Non-disclosure & non-compete clauses can help protect your ideas and proprietary designs.

Practical Do & Don’t Checklist for eCommerce Sellers

DO:

• Source authentic goods from traceable suppliers and keep invoices.
• Write your own listing text or use content you’re clearly allowed to use.
• Take your own product photos or get explicit permission/licensing.
• Use brand names accurately and only to identify genuine products or compatibility.
• Be transparent about condition (new, used, refurbished) and packaging.
• Create and register your own trademarks if you’re building a private label brand.
• Keep organized records: suppliers, purchase orders, compliance tests, communications.

DON’T:

• Don’t use brand logos on your own packaging or listing images without permission.
• Don’t claim to be “official,” “authorized,” or “partnered” unless you truly are.
• Don’t copy competitors’ listing photos, descriptions, or graphics.
• Don’t sell “similar to [brand]” products that are obvious design knockoffs of protectable designs.
• Don’t gnore IP complaints—silence is often treated as an admission.
• Don’t assume if “everyone else does it” is safe.

Final Thoughts: IP in eCommerce is a System, Not Just a Threat

The application of Intellectual Property in eCommerce isn’t just a stick that brands use to beat sellers. It’s a system that protects a seller’s own brand when you build one, protects consumers by pushing out counterfeits and deceptive listings, and also creates opportunities for abuse and overreach.

The sellers who win long-term are the ones who understand the basic IP rules, build their own IP where possible, and treat compliance as part of their business infrastructure, not a one-off emergency.