403 : Mark Berkowitz – Dealing with common eCommerce Intellectual Property issues

eCommerce Momentum Podcast

It’s funny in today’s fast changing world where a young guy (relative to me) is the absolute expert at his Law firm. Partners go to him for advice because the issues are new and were not planned for when the laws were written. Get some great legal advice for just the time it takes to listen from someone with a lot of experience.

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Mark’s Law Firm : Amster, Rothstein & Ebenstein LLP

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Here is transcript- It is automated so it is not perfect but it does seem to get better over time.

Mark: [00:00] It can be a lot of different things. It can be some, you know, some crazy claim. Let’s say let’s say a claim related to your product is better than a competitor’s product or that you know that your product contains certain ingredients, um, when it really doesn’t. Those are the ones that come up a lot, you know, for cosmetics and things like that. Um, you know, you say it has a certain, you know, percentage of the effective ingredient and it doesn’t, that can be false advertising. Um, a bait and switch type of a situation can be false advertising. Your advertising. One thing that has certain features, certain size and certain properties and it doesn’t really have those things.

Cool voice guy: [00:41] Welcome to the e-commerce momentum podcast where we focus on the people, the products, and the process of ecommerce selling. Today, here’s your host Steven Peterson.

Stephen: [00:55] Hey, wanted to take a second and talk about Gaye Lisby and, Garry’s, Amazon seller tribe and their daily lists that are put out, um, and incredible stories that you can read if you go out and check out. Amazing freedom.com, forward slash momentum hyphen arbitrage. I know that’s a lot to put in there. Amazing. freedom.com forward slash momentum dash Arbitron and you’re going to get 14 day free trial, no money risk, no, no challenges. You don’t want it when you’re done, you get out. But imagine getting list. I’m as grateful as I like to call it. Mailbox money. I love that term. Mailbox money. It’s where you can work from your house, buy things online, have them delivered to you and then sell them on various marketplaces. But imagine you can have somebody else do that for you. So you want to buy time, you want to control, uh, what they’re buying.

Stephen: [01:51] Well, you take these lists and you can join multiple lists if you’re interested and then you can segregate them for the merchandise you want and send them to them. They can make purchases for you on your behalf. Have it delivered to you or delivered to them for prep. Boom, sent into these marketplaces and you could sell. How about that? Wouldn’t that be awesome? I spoke at their conference and there were so many million dollar sellers just using online arbitrage. It’s still available. And again, 14 days. The only way you’re going to get 14 day free trial. So if you come through my link, um, it is an affiliate link. Uh, they do pay me. So I don’t want to mislead you in any way. Um, I would appreciate it, but I’d like to see you try the 14 days. I’ve had so many people that have joined, have so much success.

Stephen: [02:34] It’s very exciting to me and you know, quite humbling to me, um, that they trust me to recommend this group and I 100% recommend this group. I’ve seen the results. These are great people that will also teach you to fish. This isn’t just a, hey, here’s the list. You’re on your own. No, this is, hey, here’s why that wasn’t a good deal. Or here, hey, there’s another opportunity and you get to join their groups. And it’s just a phenomenal group of people. Um, just great, uh, leaders in that group and these lists are phenomenal. So again, it’s amazing. freedom.com, forward slash momentum, how you Finn arbitrage amazing freedom.com, forward slash momentum hyphen arbitrage. Use that. Get two weeks free. Try it. You don’t like it, drop out, but give it a shot if you want to add that to your business. Welcome back to the e-commerce moment and podcast.

Stephen: [03:23] This is episode four Oh three, Mark Berkowitz, a very cool guy. Um, he made, it’s funny afterwards I said it, uh, he made talking about law fun. I mean really it’s so interesting when you start thinking about, because if you’re selling, right, if you’re developing products and selling them private label where even if you’re selling third party products, um, I’m not sure you, me, Steve have thought about a lot of these things, but now when you sit back, if you have your own products, wait til somebody comes on your listing, then you’re going to be thinking about a lot of these things, right? And so, cause that’s happened to us and it’s like, Whoa, what do we do? You know, and then all of a sudden you now become the aggressive one. You’re like, wow, I’m going to hunt him down and, and pulled him off.

Stephen: [04:03] You know? Well that when that happens to you, what do you feel like? So it’s really interesting. Um, one of the real cool takeaways was that out of a hundred letters, majority of them don’t have any teeth. So those cease and desist letters you get might not have a lot of teeth, but you’re gonna have to pay to find that out. So, you know, I think there’s some, some good advice here. Um, do your work up front, do your research and be careful how far you go. Your risk meters should be guiding you and be real cautious because there are some, there’s some things that could happen to you and you want to be very, very cautious about. You want to build a nice longterm business. Let’s get into the podcast. Hey, welcome back to the e-commerce invent a podcast. We’re going to talk some real interesting stuff today, not however it is critical to our business and my guest would argue it is interesting because he has to think about it full time. Welcome Marc Berkowitz. Welcome mark. Thank you. You would find IP and patent law. Interesting, correct.

Mark: [05:07] Definitely. Particularly now with the growth of commerce and the Internet, you know, we’re seeing issues that we never imagined 10 years ago. Um, so yeah, it’s really interesting time to be doing this.

Stephen: [05:17] What would most of it, that’s interesting. So would most of it, 10 plus years ago have been, I mean, how would that have happened? Right. So let’s assume the Internet wasn’t there, wasn’t that long ago, where would most of your work been concentrated?

Mark: [05:30] I think it was, you know, at least for me it was a lot of it was consumer electronics. Um, things like that. You know, the way issues would come up would be, you know, you, you know, somebody would basically walk into a store or see a product, you know, in a brick and mortar store and say, oh, that, that infringes my pattern. Or you know, that your friends, you might trademark. Um, and they’d go, you know, try to track down where it’s coming from. You know, it’s up to the seller or go back up the chain eventually, you know, bring a lawsuit. And they had to, um, today that’s all different. You know, with ecommerce, with Amazon, you know, results, you know, you need to take action is immediate. Um, you can get results right away by going through Amazon, picking somebody off, um, everything sort of happening in real time.

Stephen: [06:14] Yeah, it’s interesting. And there are like, I, cause I’ve dealt with the um, oh the photo company, I forget their name, I can’t think of their name, but they, where they scroll Tro, uh, scraped the Internet looking for photos that they own and in a send you a bill and you pay it cause there’s no way around it. I forget the name of that company. They’re massive, but that didn’t exist. And so they have an essence robots. Right. These, these algorithms is out there searching for that stuff. Have you seen that in the, I guess you have, I guess on Amazon you would see that where people can be searching or have, uh, programs out there searching for things related to their business, correct.

Mark: [06:51] Yeah, absolutely. I mean for things like images, you have their progress in their programs. I can do that for trademarks. The same thing. There’s, you know, there’s software, there’s, you know, people sitting there searching away, looking for potential infringements. Um, and when they see something, you know, you act right away, you fill out a form on Amazon, whether it’s their regular freshman forum through brand registry and you get, you know, get action right away.

Stephen: [07:14] Well, I’ve heard some, you know, private labeled teachers, you know, kind of skirt those issues in today’s Day and age, how these big companies, these real big ones with a lot to lose, they have staff that works on this stuff. Correct?

Mark: [07:28] Sure. Some companies do it themselves. Some companies retain, you know, third party brand protection companies or you’re doing it in, you know, sort of a combination of the two. Um, yeah. And they’re, they’re, some of them can be very aggressive. Um, you know, sometimes right? Sometimes wrong in going after private label sellers going after, you know, resellers of branded goods. Um, you know, especially with trademark oil, you have an obligation to protect your rights and you know, you have to, you have to move quickly.

Stephen: [07:59] And in today’s Day and age, I think it’s really important. So let me go through these. This is a kind of the practice that you guys have them. And I think this is Steve’s opinion that most, that these are the ones that are related to e-commerce because that’s what we are, right? Where your commerce, ours, uh, counter counterfeiting, anti counterfeiting, copyright, false advertising. I don’t think people think about that, but when you make some crazy claims, that stuff can come back to bite you. Um, IP Litigation, um, that would be a good one. Uh, patents obviously. Um, uh, I don’t know what trade dresses I’m interested in. Uh, I mentioned trade secret in our pre-call and you said that really doesn’t come up much, but I want to think about that one for a second. And then trademark. And I, I also would say unfair competition, right? Cause if too, if me and you collude, right? I don’t know if that’s the correct term and it’s a term I use in my old accounting terms. Well, if we get together to set prices, um, that’s unfair, right? I mean, if a whole bunch of us, uh, do those kinds of things, those are our examples of unfair competition. So let’s, let’s peel them back one by one. If you don’t mind. I’m going to ask you a couple. So counterfeiting, have you seen counterfeiting issues in, in ecommerce or Amazon?

Mark: [09:09] Absolutely. So there’s counterfeits that are his real counterfeits, you know, after straight knockoffs, you know, the guy who was

Stephen: [09:17] purses, you know, or the, that Gotzsche w uh, purses down on a, I dunno [inaudible] yeah, right. That’s an example.

Mark: [09:25] But yeah, it’s even gotten bigger than that, hasn’t it? It has, it has. I mean, I think, you know, you have the, the, you know, what everybody thinks of as counter, meaning the straight knock off, they copy every aspect. Um, and there’s things in between where maybe they’re putting a name on the outer box, maybe they’re selling something on a particular listing, um, and suggesting that it’s, you know, of that brands and then fulfilling it with a generic product that could potentially be counterfeiting. Um, so yeah, it comes in a bunch of different flavors and you see a lot of it, you know, especially on Amazon real counterfeits, you’ll see a lot of um, incorrect counterfeiting allegations. People take advantage. Yeah.

Stephen: [10:04] Yeah, that’s a, that’s a real issue too. So, well, let’s talk about the real counterfeit here. So I’m selling a product, it’s my product, it’s Steve’s water bottle. It’s beautiful. And somebody comes on my listing and they’re clearly not selling my version. They’re selling another one, but it’s my packaging cause it’s just a well established brand. What’s my recourse? What’s, what’s the, what’s the, where’s the place I start?

Mark: [10:25] Well, I think that the best place to start, you know, is to write to them and say what you’re selling is, is counter fit. Um, you need to remove it right away and tell us where you’re getting it from.

Stephen: [10:35] And so that term, that’s a pretty strong term. That’s a fair...