Intellectual Property Law
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So to confirm, the parts that are made for their trampolines are not manufactured by them rather by a third party?
The parts we sell are manufactured by our suppliers, branded with our brand
They have a similar setup
They have a private label of extremely similar products
The products are basically the same, just have different boxes they come in
These are parts that are designed to fit other 3rd party brands/models of trampolines, such as those sold in Wal-Mart, K-Mart, etc...
Got it. And another confirmation, that you included the logo of the other company on the packaging of the sold parts and that is what triggered the C&D letter?
No, we have our own logo and brand on our packaging
Just as they have on theirs
But in the listing on Amazon, which we listed our product on, it says "Upper Bounce Trampoline Net" etc..., Upper Bounce is their brand
Got it. Generally speaking it is permitted to use a trademark in the context of the commerce so long as there is not confusion created in the market place as to the origin of the goods
Well that is the question... The listing / product has the name "Upper Bounce" associated with it on Amazon.com.
this means that it's ok to say generic parts for brand XYZ. The problem that Upper Bounce is probably having is that it may not be clear that your parts are in fact generic and not manufactured by them
Our parts are not for upper bounce products.
Let me give an example
Wal-Mart sells a brand of trampoline called Bounce Pro.
Us ("Power Trampoline"), as well as Upper Bounce, both make replacement parts that are designed to fit Bounce Pro trampolines
Essentially, we are selling the same nets, but our nets come in cardboard boxes which have our brand name on the box, Upper Bounce comes in cardboard boxes that have the Upper Bounce logo on it
The listing on Amazon says "Upper Bounce Trampoline Net to fit Bounce Pro Trampolines"...
Does this make sense?
curious, why did you use the term upper bounce?
(in your amazon lisitng)
So on Amazon sellers create listings to sell their products, the original creator of the listing makes the title and so on. If you have the same product as a seller, you can list your item on that listing. This creates competition amongst sellers and drives down prices (good for customers and makes them stay on amazon for low prices), as well as can be good for businesses because the listing may be a highly visible listing with lots of traffic, as oppose to if you create a new listing it may get pushed to page 20, and never get seen
Amazon also has a policy where they dont want multiple listings of the same products
Technically speaking, our product is not an Upper Bounce product. But 1. as they are otherwise than different shipping boxes, the same product., 2. Customers are not buying based on the brand name of the seller, 3. the only difference - the packaging - is not displayed, mentioned, or advertised anywhere within the listing, only the words "Upper Bounce" are in the title of the listing
So I am trying to see if their technical putting the words Upper Bounce in their product listing page is enough to legally claim the product as being an "Upper Bounce" brand product, and which anything else being sold would be considered infringement
Well, the fault may lie with Amazon and not with you or upper bounce however ultimately if you have the ability to create your own listing and piggy back on Upper's listing then I suspect that is what you would be asked to do
so to the extent that you are listing your product other theirs because of Amazon's listing system does not excuse the possibility that you may be infringing Upper's TM
typo: so to the extent that you are listing your product UNDER theirs...
So there's my question, what is considered as the infringement in this scenario
Their trademark is based on a logo design / trade MARK, is just them having the words "upper bounce" in the product title without any actual trade mark give them the ability to say it is a Upper Bounce brand product?
contrary to popular belief, TM does is about protecting brands rather about protecting consumers. TM law is primarily concerned with avoiding confusion in the marketplace. If a consumer thinks they are purchasing Upper's product but they end up purchasing yours that is considered infringement
the point you make about their TM is interesting
Heres a link to one of their listings:
if they do not have a TM on the actual words but rather just on the logo then you may be in the clear because only words and not logos are displayed in the listing
It only has the very generic, standard Amazon font type for the generic words Upper Bounce...
in their C&D are they demanding money or just removal?
On some of there images they have this computer generated price tag kind of banner with their actual trademark logo, but 1. This is a computer generated image on top of an actual image, 2. this is not on the product itself, its on a tag over the product
(BTW, that would not matter)
C&D is just demanding removal... We know them, they are relatively small company, unlikely they would actually go through expense and time of bringing us to court, we know they really just want us to stop competing with them
But I want to know if we legally have to or not, and what if something similar with another company happens in the future, and can we do this to competitors who list on our brand listings?
Which part would not matter? The type/words, or the computer generated trademark image?
Well then the choice is yours by continuing you are in a gray area. I would incline to say that you are infringing but this is only my personal opinion. Anytime confusion in the market place is crated and the mark in question is registered then that is actionable. Since you know that they are small and cannot afford to commence an action then you can take the business risk but I do think that notwithstanding the fact that Amazon's system allows this, listing your product under a different product is a problem
Ok, I see
So you are saying having the words Upper Bounce there is enough from their end? Or what about their listing do you feel makes it an actual "Upper Bounce" brand product, legally speaking?
Finally, you should consider answering the C&D without making admissions. You can say that you categorically deny their allegation yet you chose to remove the listings. Though I highly recommend that you consult with an attorney
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"So you are saying having the words Upper Bounce there is enough from their end? Or what about their listing do you feel makes it an actual "Upper Bounce" brand product, legally speaking?"
without your rating I do not get compensated for my work
Would you be able to answer this part?
I do not mean to take your time, but I just want to get a solid understanding so I can report back to my boss :)
it is a listing for their product (the tag shows the net and their logo on it) a consumer buying from you will not be getting the same product
that's where the problem lies
Ok, I understand
Thank You for Your Time.
sure thing. The rate button is below. Thank you
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