Amazon: Policy Says Selling Fake Items As Legitimate Is Ok

[de_pen_dent]

If Amazon is based in the US, I would think it would be illegal to knowingly allow the sale of counterfeit goods.

 

Do they not have a legal department?

 

If there are fake Montblancs, notify Montblanc, their lawyers will get on them.

 

I am pretty sure Amazon's lawyers have thought through this is FAR more detail than FPN members and that the various terms and conditions involved in using the Amazon platform by third party indemnifies them of any liability to this effect. Liability caused by the actions of third-party seller is going to be in the top 3-5 things their lawyers will have looked at.

 

"Knowingly" is the key word - if a manufacturer or copyright holder informs them, they will act b/c then they *know*. Until then, all they have is an allegation from one person with no locus standi on the matter about another (this is a different case from you buying a product and getting a fake).

 

An unsupported complaint does not mean they "know" - and if someone here, or even Montblanc, feel that this is insufficient action on their part to prevent their sales platform from being used to sell fakes, feel free to file a lawsuit against them and find out how well thought out their policies are.

[BrandonA]

 

If it says Montblanc in the listing and/or on the item and it isn't, that's a counterfeit product. Selling such is a crime in most every state I'm aware of.

 

That makes Amazon complicit IF they are provided with good evidence the items they're selling are fake.

 

Someone at Amazon is being Really Stupid. They need to and I suspect will, get their (bleep) spanked.

 

Bruce in Ocala, Fl

 

I think your " are provided with good evidence" comment is important here. How can they trust random customers stating that items are fake. They need people with authority to do so.

 

I personally hate the Amazon market place and only buy there as a last resort. I'd far rather buy from ebay.

[Black Spot]

I would inform Montblanc.

Amazon may not care all that much about us complaining, But Montblanc calling might be a different matter.

[Chrissy]

I have it on good authority that the seller is under investigation.

[Brian K]

I am pretty sure Amazon's lawyers have thought through this is FAR more detail than FPN members and that the various terms and conditions involved in using the Amazon platform by third party indemnifies them of any liability to this effect. Liability caused by the actions of third-party seller is going to be in the top 3-5 things their lawyers will have looked at.

 

"Knowingly" is the key word - if a manufacturer or copyright holder informs them, they will act b/c then they *know*. Until then, all they have is an allegation from one person with no locus standi on the matter about another (this is a different case from you buying a product and getting a fake).

 

An unsupported complaint does not mean they "know" - and if someone here, or even Montblanc, feel that this is insufficient action on their part to prevent their sales platform from being used to sell fakes, feel free to file a lawsuit against them and find out how well thought out their policies are.

 

The fact that something is legal only satisfies lawyers and judges. The question of right or wrong can be another matter altogether. If I ran a company I would want to make sure I was as right as I was legal.

[jar]

The fact that something is legal only satisfies lawyers and judges. The question of right or wrong can be another matter altogether. If I ran a company I would want to make sure I was as right as I was legal.

 

Hopefully you would also want to make sure that the company does not get sued for libel, slander or restraint of trade.

[DeusImperator]

So should Amazon personally verify the authenticity of each and every item they sell? Or should they pull products merely b/c someone complained (without any proof whether the allegations are true or not)? Or should they launch a full CSI-style investigation every time someone cries out "fake" for one of the millions of products that they sell?

 

It is easy to say "unethical" at the drop of a hat, but it helps to think through the practicality of things a little more. For a company providing a sales platform for millions of products from thousands of vendors, preventing the sale of fakes is not as easy as the OP makes it out to be.

 

Amazon accepts that this is a not a Mont Blanc 146. This is not even a real "fake" as the manufacturer of the item did not attempt to copy any pen in the MB line but rather manufactured a pen and merely placed the emblem of MB on the pen. The seller in turn claiming that the pen is a MB 146 offers it for sale on Amazon as per his/her claim. Of course, we all can see that the item pictured is not a MB in the least.

 

When I say Amazon is being unethical, I do not make this accusation lightly. There is preponderance of evidence that this item is indeed not a MB, perhaps even close certitude that this is not a MB 146. However, Amazon policy dictates that _absolute_ certitude can be only achieved if the authenticity entity owning the trademarks and patents makes a declaration as to the legitimacy of the product, and that this is the certitude that is required to take action against merchant. This may work for a close copy say a Chinese manufactured close clone of the Louis Vuitton handbag which may require close examination to make a declaration of the legitimacy of the product but taking an ordinary handbag has only the logo of LV and calling it some high end LV handbag would make it a prima facie non-LV handbag. In the first case (with regard to a clone) a person would require a certain familiarity with the product to discern the legitimacy of the product, and here due to the ambiguity Amazon legal decided this would be the correct policy to apply. In the second case where we are dealing with someone using a trademark on an item that possesses the universal handbag but not the universal LV handbag such a policy should not be (though providing a legal shield) is not ethical. In the first case Amazon does not (and cannot) have a complete technical understanding of the product, in the second case Amazon does not require someone with technical judgement to make a that declaration.

 

As one person pointed out, that is what is legally right and wrong (contravention would be illegal or criminal) and there is what is morally right and wrong (contravention being immoral or unethical). While Amazon's policies may perhaps protect it from legal culpability as long as they refund each complainant individually for losses there is a moral imperative to guard the ignorant or the unschooled against the loss - this is perhaps the case for the individual who purchased the pen from this seller and wrote a glowing review of the pen.

[OcalaFlGuy]

 

This is not even a real "fake" as the manufacturer of the item did not attempt to copy any pen in the MB line but rather manufactured a pen and ***merely placed the emblem of MB on the pen.***

 

I know somewhat less than jack diddly squat about MB's.

 

However, I would lay money down on the table on the bet that "MB emblem" is Indeed a registered trademark by MB.

 

That's good enough for me.

 

Bruce in Ocala, Fl-keeping in mind that the Last thing I am is Any Defender of MB

[de_pen_dent]

The fact that something is legal only satisfies lawyers and judges. The question of right or wrong can be another matter altogether. If I ran a company I would want to make sure I was as right as I was legal.

 

Sure, I dont disagree with that in principle. However, we are picking an example that appears to be cut-and-dry. However, Amazon's policies need to cover all eventualities and permutations, esp when it comes to grey areas.

 

What they absolutely MUST avoid is a system which is perception-driven - ie, yes, I "think" this pen is obviously fake, so we'll pull it but that one doesnt appear to be, so we'll apply a different rule, and so on. That raises far too many further problems. So they have to draw a line somewhere, but it cannot just be anywhere. The safest place to draw it in this case is to act when the person who is the actual copyright holder files a complaint.

 

There is a reason why small companies CAN afford to apply policy on a case-by-case basis while large companies have to follow procedure and strict guidelines with very clearly defined heuristics for action and no scope for personal interpretation (except at a very senior level). It isnt ideal, but it is still the best and most consistent method.

[de_pen_dent]

 

Amazon accepts that this is a not a Mont Blanc 146. This is not even a real "fake" as the manufacturer of the item did not attempt to copy any pen in the MB line but rather manufactured a pen and merely placed the emblem of MB on the pen. The seller in turn claiming that the pen is a MB 146 offers it for sale on Amazon as per his/her claim. Of course, we all can see that the item pictured is not a MB in the least.

 

When I say Amazon is being unethical, I do not make this accusation lightly. There is preponderance of evidence that this item is indeed not a MB, perhaps even close certitude that this is not a MB 146. However, Amazon policy dictates that _absolute_ certitude can be only achieved if the authenticity entity owning the trademarks and patents makes a declaration as to the legitimacy of the product, and that this is the certitude that is required to take action against merchant. This may work for a close copy say a Chinese manufactured close clone of the Louis Vuitton handbag which may require close examination to make a declaration of the legitimacy of the product but taking an ordinary handbag has only the logo of LV and calling it some high end LV handbag would make it a prima facie non-LV handbag. In the first case (with regard to a clone) a person would require a certain familiarity with the product to discern the legitimacy of the product, and here due to the ambiguity Amazon legal decided this would be the correct policy to apply. In the second case where we are dealing with someone using a trademark on an item that possesses the universal handbag but not the universal LV handbag such a policy should not be (though providing a legal shield) is not ethical. In the first case Amazon does not (and cannot) have a complete technical understanding of the product, in the second case Amazon does not require someone with technical judgement to make a that declaration.

 

As one person pointed out, that is what is legally right and wrong (contravention would be illegal or criminal) and there is what is morally right and wrong (contravention being immoral or unethical). While Amazon's policies may perhaps protect it from legal culpability as long as they refund each complainant individually for losses there is a moral imperative to guard the ignorant or the unschooled against the loss - this is perhaps the case for the individual who purchased the pen from this seller and wrote a glowing review of the pen.

 

I understand your point. However, do try to see it from Amazon's point of view. Amazon cannot put in one policy for products which are "definitely fake" and another policy for products which are "probably fake" and yet another set of policies for products with are "maybe fake". Well, they could, I suppose, but it is going to be an absolutely nightmare for them to manage and will open them up to a lot of other issues.

As I said in my earlier reply - policies are not based on subjective interpretation but are there to cover all situations and eventualities that may arise. Take an parallel - in criminal law, do you say "this person is obviously guilty b/c he was seen committing this crime on national TV or in front of 10 cops, and so he can be sentenced right away without due process?". Of course you dont - that person is entitled to a trial just like anyone else.

 

The only way for them to operate is to take the subjectiveness out of this - their customer leader is not a subject matter expert in determining product fakes (the fact that s/he was able to determine that this particular pen was a fake does not change that), and so is not empowered to make that call on the basis of a complaint from a third-party who, for all they know, could just be a jealous competitor or a bitter ex-spouse. So they act only when the trademark owner complains.

 

That is perfectly fair and sensible and has nothing to do with ethics but everything to do with consistent, repeatable policies that are fair and have the least amount of scope for abuse and liability exposure (not necessarily in that order).

 

As for moral right and wrong - i will argue that Amazon, as a platform that sells millions of products, lacks the expertise to arbitrarily decide what is genuine and what is fake, and so needs to have a more thought-out process than merely reacting and banning a seller every time someone complains.

 

You are correct, however - establishing of these policies means that sometimes obvious cases like the one you pointed out fall through the cracks. It may be possible that Amazon could put in a more rigorous screening policy and draw their line elsewhere, so to speak. I dont know enough to comment on that.

Edited August 4, 2014 by de_pen_dent

[DeusImperator]

 

I understand your point. However, do try to see it from Amazon's point of view. Amazon cannot put in one policy for products which are "definitely fake" and another policy for products which are "probably fake" and yet another set of policies for products with are "maybe fake". Well, they could, I suppose, but it is going to be an absolutely nightmare for them to manage and will open them up to a lot of other issues.

As I said in my earlier reply - policies are not based on subjective interpretation but are there to cover all situations and eventualities that may arise. Take an parallel - in criminal law, do you say "this person is obviously guilty b/c he was seen committing this crime on national TV or in front of 10 cops, and so he can be sentenced right away without due process?". Of course you dont - that person is entitled to a trial just like anyone else.

 

The only way for them to operate is to take the subjectiveness out of this - their customer leader is not a subject matter expert in determining product fakes (the fact that s/he was able to determine that this particular pen was a fake does not change that), and so is not empowered to make that call on the basis of a complaint from a third-party who, for all they know, could just be a jealous competitor or a bitter ex-spouse. So they act only when the trademark owner complains.

 

That is perfectly fair and sensible and has nothing to do with ethics but everything to do with consistent, repeatable policies that are fair and have the least amount of scope for abuse and liability exposure (not necessarily in that order).

 

As for moral right and wrong - i will argue that Amazon, as a platform that sells millions of products, lacks the expertise to arbitrarily decide what is genuine and what is fake, and so needs to have a more thought-out process than merely reacting and banning a seller every time someone complains.

 

You are correct, however - establishing of these policies means that sometimes obvious cases like the one you pointed out fall through the cracks. It may be possible that Amazon could put in a more rigorous screening policy and draw their line elsewhere, so to speak. I dont know enough to comment on that.

 

In reality I do see this from Amazon's point of view. As to the "Take an parallel - in criminal law, do you say 'this person is obviously guilty b/c he was seen committing this crime on national TV or in front of 10 cops, and so he can be sentenced right away without due process?'. Of course you don't - that person is entitled to a trial just like anyone else." I am guessing that you are not a lawyer as that analogy would not apply - you are confusing classes and tort with crime.

 

Amazon can have any policy them want, That said, Amazon cannot use such a policy as a defense even if the policy was in accordance with the law or statutes governing transactions. When such a case is adjudicated the only questions are did a tort occur? If such a tort did occur are their any damages? If Amazon's merchants were constantly selling counterfeit items and it is deemed in the eyes of the court that this appears systematic then in addition to actual damages compensating the victim the court may award exemplary damages to force Amazon to change the way they do business. As I have stated earlier, Amazon is very fair as far as their return policy is concerned - especially when one speaks to a representative from the United States. So, a person who receives a counterfeit item and reports it as such will be reimbursed.

 

However, my concern is for the fellow would we KNOW purchased this item believe it to be an authentic, and when received writes a glowing review of the item encouraging other persons - in his ignorance - to purchase the same counterfeit pen. How about the other persons who may have purchased the item and never bothered to write a review. He was stolen from whether he knows it or not - being stolen from is not dependent on the objective awareness or sentience of the victim. I wanted Amazon to do is inform those persons who purchased this item from this sell that they may have purchased a counterfeit item. Banning the seller is secondary matter to me.

Edited August 4, 2014 by DeusImperator

[donwinn]

It boggles my mind that Amazon is allowing the counterfeit to be sold. Amazon is not the seller; if you look closely, you will see that it is sold by discount pens (or something similar) and fulfilled by Amazon. The seller sent the pen to Amazon's warehouse, and Amazon is the broker. What boggles my mind is that people who sell merchandise fulfilled by Amazon have had their account permanently closed, with no option to reapply, for selling counterfeit items. There are entire categories of merchandise that Amazon does not allow third party sellers (who fulfill by Amazon) to sell, due to rampant counterfeiting.

[heymatthew]

I bought an Apple MacBook Pro Charger from Amazon a couple of years ago. It was about $5 less than on the Apple Store and was offered with Prime shipping so I pulled the trigger on it as I needed it ASAP to continue using my computer. It arrived in a plain cardboard box, which I found odd. The second trigger was that it wasn't wrapped in plastic the way Apple does (everything has a fitted, thin plastic sleeve over it). Finally, I saw some manufacturing discrepancies unlike anything I had ever seen from an Apple product (yes, even their chargers are of a particular quality that I've come to recognize and expect. The text wasn't silkscreened on properly and was a different gray and was fuzzy as if it had been reproduced from a substandard original. There were a few other things as well.

 

I sent it back immediately for a full refund and notified Amazon of the issue. They gave me my money back and responded, basically saying that the seller in no way violated any Amazon TOS. Apple probably has bigger fish to fry (ahem, Samsung) so little Chinese shops selling knock-off Apple chargers is no big deal to their bottom line.

 

What really struck me is that someone posted in the reviews that the charger overheated and actually damaged their computer. Yet Amazon allowed the product to remain.

 

I'm not surprised as Amazon is just a middle man, like eBay and takes a small profit from items sold via their website so it's in their best interest to allow as many things to be sold as possible.

[OcalaFlGuy]

"Once you get rid of integrety, everything else is a piece of cake."

-J. R. Ewing-

 

Bruce in Ocala, Fl

[Fabienne]

My company name was hijacked (it's copyrighted), it was put next to some nasty porn, and the site said they were selling my product for 5x my price. I complained to Amazon who gave me the run around with lots of fake "oh that's terrible". Finally when I pinned them to the wall to ask what they were going to do about their site screwing me, the answer was,"hire your own lawyer and fight it". They have been raising their prices to sellers, demanding we buy all their "fulfillment" and what used to be free is now $90/month. Gone from Mr. Nice Guy to Mr. Nasty Guy. Bezos has gotten greedy, Bezos is not pleased at the $$$ he has to do smart things like buy a newspaper (how many people does he think have fish for dinner). Feh. I am really not happy with amazon any more. Schmucks.

[de_pen_dent]

In reality I do see this from Amazon's point of view. As to the "Take an parallel - in criminal law, do you say 'this person is obviously guilty b/c he was seen committing this crime on national TV or in front of 10 cops, and so he can be sentenced right away without due process?'. Of course you don't - that person is entitled to a trial just like anyone else." I am guessing that you are not a lawyer as that analogy would not apply - you are confusing classes and tort with crime.

 

The fact that I compared 2 different types of situations (corporate civil liability and criminal law) is pretty much how an analogy works - my example was to illustrate the need for procedure, not to imply that the two are identical (again, "analogy") - I have to admit that I really dont understand what point you are trying to make here.

 

 

Amazon can have any policy them want, That said, Amazon cannot use such a policy as a defense even if the policy was in accordance with the law or statutes governing transactions. When such a case is adjudicated the only questions are did a tort occur? If such a tort did occur are their any damages? If Amazon's merchants were constantly selling counterfeit items and it is deemed in the eyes of the court that this appears systematic then in addition to actual damages compensating the victim the court may award exemplary damages to force Amazon to change the way they do business. As I have stated earlier, Amazon is very fair as far as their return policy is concerned - especially when one speaks to a representative from the United States. So, a person who receives a counterfeit item and reports it as such will be reimbursed.

 

Those are 2 different things: one is buying a product which was not as represented (ie, a transactional dispute), and the other is the general sale of a fake product (ie, copyright violation). We are talking about the latter - not the former.

 

You are correct about one thing - if the courts deem that Amazon didnt do enough to prevent sale of fraudulent products from their website, then they would indeed be held liable.

 

Of course, if you think Amazon is not aware of this and hasnt spent enough money making sure their rears are covered as far as this goes, you are welcome to bring a class-action lawsuit and see how it goes. I'll wager good odds, backed up by my friend Occam, that Amazon's corporate law team has thought through this in far more detail than you or I.

 

 

However, my concern is for the fellow would we KNOW purchased this item believe it to be an authentic, and when received writes a glowing review of the item encouraging other persons - in his ignorance - to purchase the same counterfeit pen. How about the other persons who may have purchased the item and never bothered to write a review. He was stolen from whether he knows it or not - being stolen from is not dependent on the objective awareness or sentience of the victim. I wanted Amazon to do is inform those persons who purchased this item from this sell that they may have purchased a counterfeit item. Banning the seller is secondary matter to me.

 

This is a good point. I would assume that Amazon does have some seller protection, in the event a buyer gets a product that turns out to be fake. I have never had a single bad experience with their customer service when buying directly from them. However, I dont know what their policies are re 3rd party sellers. I would hope they provide some buyer protection - if they say "tough luck, you are SOL", that would indeed be disappointing.

 

As for informing buyers - it is one thing to act on a customer-initiated dispute. It is another thing to act just b/c someone emails and replies. The policy they create cannot be on a case-by-case basis - it has to apply to all such cases.

 

So as per your argument, what they would need to do is have someone at Amazon who can immediately make a decision as to whether a complaint from a third-party person with no involvement in the transaction has merit - ie, they have to be a product expert on each and every item they sell - and then act on. Do you think that is feasible?

 

So they notify these buyers that this product is fake. Then what - where do they draw the line? What if they are 90% sure it is a fake? 80% sure? 50% sure? Etc. etc. Also, what if this actually is a very rare MB that no one knows about - who makes the determination that it is fake - you, me, their customer service rep or Montblanc?

 

I agree - that process has failed in this case. But there really is no better process. If you think there is one, please outline it here in general terms.

Edited August 5, 2014 by de_pen_dent

[de_pen_dent]

My company name was hijacked (it's copyrighted), it was put next to some nasty porn, and the site said they were selling my product for 5x my price. I complained to Amazon who gave me the run around with lots of fake "oh that's terrible". Finally when I pinned them to the wall to ask what they were going to do about their site screwing me, the answer was,"hire your own lawyer and fight it". They have been raising their prices to sellers, demanding we buy all their "fulfillment" and what used to be free is now $90/month. Gone from Mr. Nice Guy to Mr. Nasty Guy. Bezos has gotten greedy, Bezos is not pleased at the $$$ he has to do smart things like buy a newspaper (how many people does he think have fish for dinner). Feh. I am really not happy with amazon any more. Schmucks.

 

This is not unique.

 

Someone is net-squatting on a few variant of my company's domain name (company's brand name is also copyrighted). I tried to take it up with the appropriate ISPs and got the same answer - take it up with a lawyer, we cant get in the middle of this.

 

 

 

What really struck me is that someone posted in the reviews that the charger overheated and actually damaged their computer. Yet Amazon allowed the product to remain.

 

Do you really expect Amazon to read each and every product review and then make a judgement call about the quality of a product - especially a product that they dont sell themselves?? And it isnt illegal to sell crappy products (I can name a couple of pen companies that would have to shut down, were that true).

 

As far as safety hazards go, again, that is between the buyer, the seller and the courts. It is Amazon's role to play mediator for every problematic transaction - they gave you your money back promptly, and that's plenty good customer service in my books.

 

I have said my piece and am going to bow out of this discussion now.

[Black Spot]

I have used fountain pens since first grade, But I do not know anything about fountain pens.
If they stopped working I would just go get another pen.

I could not tell a fake from a real pen.
Last night I was watching a video on how to spot a fake Mont blank and ever so slowly my heart sank in to my stomach, wait my Mont blank is supposed to have a screw cap ?

Now the small stationery store I got them from probably did not know they were (possibly) fakes.

But if you know something is a fake you should not allow it to be sold as the real thing.

[dneal]

wait my Mont blank is supposed to have a screw cap ?

 

There are many models of MB's that didn't have screw caps. The 144 didn't, for example, but now does as it's incarnation as a 145.

[heymatthew]

Do you really expect Amazon to read each and every product review and then make a judgement call about the quality of a product - especially a product that they dont sell themselves?? And it isnt illegal to sell crappy products (I can name a couple of pen companies that would have to shut down, were that true).

 

As far as safety hazards go, again, that is between the buyer, the seller and the courts. It is Amazon's role to play mediator for every problematic transaction - they gave you your money back promptly, and that's plenty good customer service in my books.

 

I have said my piece and am going to bow out of this discussion now.

 

No. I don't expect Amazon to police the products, but when someone makes a complaint that a product is not only fake, but unsafe, Amazon would be wise to remove it from their fulfillment centers. Let the seller take the risk of shipping false or dangerous products. Amazon is just the middle man. But actually fulfilling orders with known fraudulent products is a bit risky to their brand, but probably not that big of a deal as their bottom line can handle the refunds, etc.. Fulfilling orders with known fraudulent products that have literally caught on fire is just down right stupid.

 

Will I stop using Amazon? Nope. I needed a new bike tire yesterday. Ordered it at 3:00pm, paid the $4 for overnight shipping and it's out for delivery today. All from the comfort of my iPhone. The closest bike shop for me is an hour one way. It would have cost me well over $4 in gas to get there and back, not to mention I got my tires for about 35% less than the shop's price (used the savings to buy and extra along with some tubes for those just-in-case moments).

 

Amazon has a great thing going. But they'd do well to heed the advice of their customers and at least look into these types of products. I guess when a fake item lands them in court because it blows up and kills an orphanage full of children they'll pay attention. Until then, I'll enjoy the savings my Prime membership affords me and buy stuff I know to be legitimate.

 

I suppose you won't see this though as you've chosen to respond and then take your ball and go home so this is really for anyone else following along here.