We are an online seller of replacement trampoline parts.
We are an importer of the parts we sell, and we privately brand them under our own brand "Power Trampoline".
We regularly sell our parts through Amazon's Seller Central Merchant program, which allows businesses to post products and have them sold on Amazon.com.
A differentiating strategy of Amazon's marketplace, in comparison to other marketplaces, is that sellers can sell under another seller's listing if they have the same product. The purpose of Amazon's listing model is to condense the number of listings for multiple products on the marketplace, something which is considered a problem on other marketplaces such as eBay. As a result there is less clutter for identical items on Amazon and more price competition between sellers of a product, as each seller sets a price, and shoppers are able to view all available buying options and select who they purchase from.
As we are in the replacement trampoline parts business, which is a very niche business to say the least, all of our products and competitors products are essentially identical and are designed based around fitting specific brands and models of trampolines. However, packaging of the products (the cardboard boxes they are shipped in) do bare different distinctive logos
and brand names. Please note that these logos and brand names are XXXXX XXXXX the actual products themselves, only on the boxes they are shipped in, and the instruction manuals that come with the products.
We have a competitor named “Upper Bounce”, who has a registered trademark registration
number 85315406 with the USPTO. Their trademark
relates to their actual logo design.
Being that our particular products are essentially identical to their products, although as stated above, different packaging, and that customers purchase the products based on compatibility to fit their original trampolines, and price, but not on a particular “brand name” of a seller or brand name of the replacement part itself, we previously had listed our similar products on Upper Bounce’s Amazon listings.
Their Amazon listing had the title similar to “Upper Bounce 12 Foot Trampoline Jumping Mat Fits 14 Foot Trampoline Frames with 84 Springs”. They had no reference to Upper Bounce as a brand, only the words “Upper Bounce” in the title. They have an image of the product, with a computer generated “Upper Bounce” logo, the same as their trademark, inserted into a gift tag kind of image hanging on the product. That is the only use of their trademark within their listing.
Here is one of their listings to show an example:
Our products have the same specifications, designed to fit the same kinds of trampolines, are essentially identical except for the packaging, and they have no reference or images of the packaging within the product listing itself or shown or advertised to the potential customers who are viewing the page.
Based on the assumption we are selling products through these listings which is providing competition to them, we recently received a cease and desist letter from their attorney, referencing our activities and stating we are violating trademark law due to the use of their trademark.
We have removed ourselves from the “Upper Bounce” listings of Amazon which we were previously on once we received the letter.
My question is:
1. Based on all of the provided information above, is what we are doing considered trademark infringement
against Upper Bounce?
2. Should we respond to the Cease and Desist letter, which we were suggested may incriminate ourselves and show admittance of guilt?
We would like this information for going forward to have a definitive legal answer as to if what we are doing violates any laws and what our legal rights are as well.
I appreciate your time.