What is a Vorys Cease and Desist Letter?
Simply, a cease and desist letter (C&D) is a letter sent to a person or company who has allegedly engaged in misconduct, which demands they stop engaging in that misconduct. Vorys is a large firm that sends out a lot of these letters to Amazon sellers. Vorys sends these C&D letters to sellers who have allegedly sold unauthorized or counterfeit products. The result of the claims described in these letters may lead to your account getting suspended.
The Vorys law firm is known to regularly accuse sellers of various intellectual property infringements. The message is typically the same. Stop selling the products of a given brand, because you are not authorized to do so. The C&D letter basically functions like a threat, and theoretically, precedes a lawsuit. The claims in the letter may or may not be true. Nevertheless, the fact of their existence can cause sellers problems, such as suspension.
Why Did I Receive a Vorys Cease and Desist Letter?
First off, you should determine if the sender of the cease and desist letter is legitimate. Some competitors on the Amazon platform send out or submit fake C&D’s and/or infringement claims. They do this to eliminate you as their competition. You may be unable to validate that the sender is associated with the brand in question or their attorney. Know that you can ask the sender for further details.
We recommend that you respond to the claims detailed in the cease and desist letter. If you are not selling unauthorized or counterfeit products, reply and state that the claims have no merit. The brand who Vorys wrote the letter for may believe the claims to be true. You can just request access to the documentation and perform a review of that material.
If the cease and desist letter is legitimate, then you should take into consideration what is known as the First Sale Doctrine. This is what protects you from getting sued by a brand that does not wish for you to sell their goods on Amazon. Essentially, the doctrine means that when the brand sells their products to a retailer, distributor, or anyone else, any further sale of those products does not violate the brand’s trademark. Because the brand completed the initial sale. Conversely, if you manufacture a product and apply a trademarked logo to it and then sell it, you are indeed committing trademark infringement.
Understanding the First Sale Doctrine
It may be confusing that you have received a cease and desist letter if you purchased the inventory from a distributor. You might assume that you are covered, in that case, by the First Sale Doctrine. Brands use what is referred to as the “Warranty Loophole.” This means, a brand claims you are an unauthorized seller. And, the extension of a manufacturer’s warranty is reserved only for authorized sellers. Therefore, you are infringing on that brand’s trademark. Brands have successfully sued Amazon sellers using this legal angle.
What if the cease and desist letter sent to you is related to a product with a manufacturer’s warranty on the label or brand website? You may want to remove that listing from Amazon, reach out to the brand, and ask if you can sell the remainder of your inventory. This may be the most sensible decision. You are putting yourself at risk of being sued and/or losing in court due to the “Warranty Loophole” argument, which undermines the First Sale Doctrine.
The C&D letter may refer to a product in question that does not have a manufacturer’s warranty. Then, you are not violating the First Sale Doctrine. Unfortunately, you can still be sued by a brand that claims you have infringed on their intellectual property. If a brand decides to file a lawsuit against an Amazon seller like you in the jurisdiction of Illinois, your account can be frozen by a Temporary Restraining Order (TRO). That freeze will remain in effect until the suit is settled. You will not be able to access the funds in that account, as well. And, this is regardless of whether or not you have actually engaged in the wrongdoing claimed by the brand.
Should I Hire an Attorney?
What if you purchased your inventory from a brand’s distributor in good faith? Perhaps you were unaware that you were required to acquire authorization to sell on Amazon. What you can do is contact the brand who sent you the C&D and request that you sell through the inventory. Taking this action usually resolves the issue. Although you will not be able to sell that brand’s products after that inventory runs out.
Without a doubt, navigating the best route to take when you have received a cease and desist letter can seem overwhelming. Want to improve your chances of coming out of this situation relatively unscathed? Seriously consider using one of the most effective tools in the game, an intellectual property attorney! The firm of Stockman & Poropat, PLLC is a leader in the field with an impressive record of developing solutions for all sorts of Amazon sellers. Our team can analyze the Vorys letter, assess the validity of the claims therein, compose a response to the brand to negotiate a favorable outcome. If necessary, we can also defend you in the event of a lawsuit. Do not feel as though you must face the cease and desist letter allegations on your own. Our incredible team will work to get your Amazon business more earnings with less hassle.
Up next we will be discussing Business Contract Lawyers.
