Facebook Commerce and Ads IP Tool

In an effort to combat counterfeiting on its platform, Facebook has announced a new IP reporting tool, the Facebook Commerce and Ads IP Tool. The Commerce and Ads IP Tool allows trademark owners who have been accepted into the program to search in ads, Marketplace posts, and group sale posts to identify any content that infringes upon their intellectual property rights. To apply for this new program, rights holders must complete the application form located at https://www.facebook.com/help/contact/423912757973851.

Facebook IP reporting tool

 

If you are experiencing an intellectual property infringement issue on Facebook, contact one of our Internet lawyers today at 231-714-0100.

ADA Accessibility Lawsuits

John Di Giacomo: Hey everyone, this is John Di Giacomo. I’m an attorney with Revision Legal, and I want to talk today a little bit about what is going on with these ADA accessibility lawsuits. A lot of our friends in the eCommerce world are complaining of letters that they have received from companies purporting to represent individuals with disabilities, claiming that their websites, their eCommerce stores, or their software as a service, is not ADA accessible. A lot of the times these letters are coming from firms such as Pacific Trial Attorneys and others like them. So why are these popping up? What do you do about them? Those are the types of questions that we want to answer today.

John Di Giacomo: So let’s start with why are these popping up? Well, under the Obama administration, the Department of Justice stated that websites can be places of public accommodation and that means that they may be subject to the Americans with Disabilities Act. And the Obama administration had set a calendar date for a rulemaking to explain to the public what exactly that means, what steps have to be taken in order to ensure that your website is ADA compliant? Well, when the Trump administration took office, the administration took that calendar item off of the calendar and never put it back on.

John Di Giacomo: So we’re sitting kind of in this limbo where we know that the ADA applies to websites, but we aren’t quite sure what exactly that means. And what we’re telling clients is you need to look at some compliance related tools to try to comply with what we believe are the right set of standards to ensure accessibility is for people with disabilities. So that’s the first point, is if you get hit with one of these letters or even if you haven’t and you’re thinking about this idea and you’re concerned that you might get hit by one of these letters, the first step is to assess your own compliance.

John Di Giacomo: And what does that look like? Well there is a set of standards called the WCAG standards. The current one is 2.1, the old standard was 2.0. And because of case law, we know that meeting the 2.0 standard may be sufficient to create a defense to an ADA claim. So what we’re telling clients is start with trying to get compliant with the 2.1 standard, and from there you can create a reasonable defense that you’ve attempted to make your website easily accessible by individuals disabilities. So that’s step one.

John Di Giacomo: Step two is a step that I always tell clients they should take seriously and no one ever does and I’m quite sure, after all these years of me spouting it again and again, always have an attorney drafted terms of use agreement. Why? Why is that important in this case? It’s very simple. Because a attorney drafted terms of use agreement contains certain provisions such as an ADA disclaimer, an alternate route for compliance, and an arbitration provision with a choice of law clause, that creates significant impediments and hurdles to any type of law firm that wants to file one of these cases on a contingent fee basis.

John Di Giacomo: So what do I mean by all of that? Well, let’s start with the choice of law clause. I’m in Michigan and my website has a choice of law clause that says that suits can only be brought in Michigan, Michigan rules and law apply and you are agreeing when you use the website to be subject to personal jurisdiction within the state of Michigan. Being subject to personal jurisdiction within a state in which you are not located creates a massive disincentive for a contingent fee lawyer to take the case or to push the case even further. They don’t want to have to fight a case in a completely different state and undertake all of the travel costs associated with doing so. They want to file it within their own home jurisdiction without any defenses so they can get a little bit of money out of you.

John Di Giacomo: And having a choice of law clause that has an arbitration provision in it makes it even worse. The average filing fee for federal court is significantly lower than an arbitration fee. The arbitration fee typically ranges somewhere around $1,200. So if you have to force a contingent fee lawyer and a contingent fee plaintiff into arbitration at a high fee rate, the return on investment from filing a lawsuit that they may not win, that they have to fight in a foreign jurisdiction and that may be subject to arbitration, reduces the likelihood that they will file a lawsuit against you.

John Di Giacomo: So what we’re doing through this process is just creating lots of disincentives for a contingent fee firm and a contingent fee plaintiff to take this type of case. And then creating a decent ADA policy also adds to those defenses. It allows a company to say, look, we have another process by which you can make an order, you can call our phone number, it’s ADA accessible. We have operators standing by who can order for you. And meeting those requirements through alternative means just adds to your ability, or your attorney’s ability, to make the factual argument that you are trying as much as possible to be ADA compliant.

John Di Giacomo: And that’s what we’re telling clients right now. We’re telling them adopt defensive measures and try to get compliant to the extent that you possibly can. Because as of right now, we’re still waiting and when we find out how these rules are going to be applied in the internet context, we will certainly talk about it more and let you know. And if you like what you’re seeing, feel free to subscribe. Go to our website, send us an email. We’d love to hear from you. Again, I’m John de Giacomo. I’m an attorney with Revision Legal and thank you for your time.

If you have been subject to an ADA accessibility lawsuit, contact the Internet lawyers at Revision Legal at 231-714-0100.

3 Reasons Amazon Shouldn’t Be Your Only Sales Channel

John Di Giacomo: Hey, everyone. My name is John Di Giacomo. I’m an attorney with Revision Legal. We are an internet law firm, and we handle a lot of Amazon stuff. And today, I want to talk to you about three reasons you shouldn’t make Amazon your only sales channel.

 

John Di Giacomo: So let’s start with number one: the Amazon Services Business Solutions Agreement, which is a mouthful. That agreement says Amazon can terminate your account at any time. Under Washington law, which applies under that agreement, contracts are what we call terminable at will, which means that Amazon can terminate your account at any time and for any reason. It does not have to have a reason for terminating your seller account. And after you’ve been wrongfully suspended, Amazon does not have to reinstate your account. It doesn’t have to do anything at all. It can say, “We’re shutting your account down even though we wrongfully suspended you,” and you have no recourse other than arbitration, which we will talk about later. Now, that’s a pretty powerful position that Amazon is in.

 

John Di Giacomo: The other big issue is wrongful suspensions. They happen all the time. Amazon regularly suspends sellers for really no good reason. Once that happens, sellers have found that they have to create a plan of action to have their accounts reinstated. They create this list, even if the list means absolutely nothing. They submit it to Amazon. And they hope that someone at Amazon will say, “Okay, that looks good,” check a box, and send them on their way.

 

John Di Giacomo: Recently, we had a client whose seller account was suspended because they were purportedly selling counterfeit goods, and, of course, they were not. Amazon suspended their account and stuck them in limbo for several months. Then, while their seller account was suspended, Amazon destroyed their inventory. Why did they do this? Because the Amazon Services Business Solution Agreement gives Amazon the right to destroy any units of inventory that it wants to, provided you don’t pick it up from their warehouse. And if you don’t sell units within a certain timeframe, Amazon reserves the right to terminate those units if they are within an FBA warehouse. So in this case, Amazon suspended the account, which started the clock for not selling units, and because they took so long to review that account suspension, our client wasn’t able to sell units. And Amazon said, “Too bad. We’re destroying your units anyway.”

 

John Di Giacomo: There’s a lot of that going on. And it isn’t necessarily intentional, but in an organization as large as Amazon, you’re going to see that a lot. It’s a matter of dealing with the number of sellers that they do.

 

John Di Giacomo: The other reason is the arbitration clause. Amazon’s arbitration clause has been consistently upheld as enforceable, and reinstatement of an account is not a remedy in arbitration. If you are wrongfully suspended or your account is terminated, you have no recourse for reinstatement. Your recourse is to seek damages for the damage that was caused to you, but consequential damages are not available in that arbitration proceeding. So for example, if your account is suspended and you can’t sell, too bad. Those are consequential damages. You’re not entitled to that. But if your account is suspended and you have money left in it, you might be entitled to recover that money. Again, this is a very powerful relationship that Amazon has over its sellers.

 

John Di Giacomo: The second reason why you shouldn’t make Amazon your only sales channel is that Amazon regularly uses your data to sell against you. And this is news as of today and yesterday. Amazon is going through this antitrust inquiry in Congress. And Amazon, in response to that inquiry, has admitted that it uses aggregated data, not specifically identify data but aggregated data, across the platform to determine whether or not it should enter a specific market and sell its private-labeled Amazon goods. So it is looking at your sales numbers in an aggregated way to determine whether or not it should sell against you on its own platform.

 

John Di Giacomo: And as of today, it was revealed that Amazon has admitted that it uses a ad type that is only available to its private label brands. It’s a page takeover ad type. So this is an ad type that is not available to the normal seller. It is only available to Amazon’s private-label brands. So Amazon is not only collecting your data and using it against you, but it’s also advertising in a way that’s more effective than you can advertise on its platform. And again, that’s a very powerful position to be in.

 

John Di Giacomo: And the third reason why you shouldn’t make Amazon your only sales channel is that it’s a poor business asset. If the value of your company can be destroyed overnight because of the whims of an arbitrary decision by an Amazon customer service representative, then you have created a poor business asset. You have to diversify risk and sell through multi-channels. Someone who wants to buy your business, knowing that it’s only on Amazon, will have to factor that risk into the purchase price. And though your business may be millions of dollars in sales, that risk is going to reduce that sales price because there’s always going to be a looming risk that Amazon could shut down your account at anytime and for any reason.

 

John Di Giacomo: And that’s why I think there are really three reasons why you shouldn’t use Amazon as your only sales channel. Again, my name is John De Giacomo. I’m an attorney with Revision Legal, and I hope you have a great day.

If you seek representation in an Amazon legal issue, contact our Internet lawyers today at 231-714-0100.

how amazon competitors can sabotage your business

8 Ways Amazon Competitors Can Sabotage You on Black Friday

The quality of customer reviews greatly influences how well your business performs on Amazon. In fact, nearly 4 in 5 customers (79%) read reviews prior to making an Amazon purchase, according to price optimization platform Feedvisor. However, reviews can also be used against you by malicious Amazon competitors. Reviews are, unfortunately, just one way that you might be attacked (although they can be used by black-hat operators in various ways, as seen below).

Here are eight common strategies of sabotage that have been used in recent years on Amazon and that could hit your business on Black Friday:

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mlat subpoena response: what EU service providers need to know

MLAT Subpoenas: What EU Service Providers Need to Know

Imagine a U.S. prosecutor is investigating a criminal matter and needs to obtain data or information stored in a suspect’s smartphone application. The problem is, the app was developed by a small tech startup in Denmark. In order to obtain access to the relevant information, the prosecutor would need to issue a MLAT subpoena to the app developer. Under normal circumstances, this would be a challenge, because of the General Data Protection Regulation (GDPR), a regulation of the European Union (EU).

Under the GDPR, European companies cannot provide user information or private data in response to a U.S. subpoena, except in a manner that is consistent with the Mutual Legal Assistance Treaty (MLAT). America has entered into MLAT agreements with 65 other countries and reached a specific agreement with the EU with regard to how data disclosure would be handled in these situations. Foreign companies who receive a U.S. subpoena should carefully consult an experienced Internet attorney from Revision Legal to help navigate the appropriate response.

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sued for copyright infringement

Sued for Copyright Infringement? Three Questions to Ask Immediately

Sued for Copyright Infringement? Three Questions to Ask Immediately

  • Does the Plaintiff Have a Copyright Registration and When Did it Issue?
  • When Did the Alleged Infringement Occur?
  • Worst Case Scenario, What Kind of Damages Are Reasonably on the Table?

If you do not regularly get angry letters from attorneys, reading one that accuses you of copyright infringement must be a perplexing and anxiety inducing experience.

Can a plaintiff really recover its attorneys’ fees and $150,000 per work that is infringed? Is downloading copyrighted material from the internet for personal use copyright infringement? Are these guys actually going to sue me?

The answers to these three questions are:  sometimes, almost always, and, unfortunately, probably yes.

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is your website ada compiant? read about website accessibility

Website Accessibility: Is Your Website ADA Compliant?

When is comes to website accessibility, there is a difference between a website that is accessible and one that is ADA-compliant, and that difference can have a huge impact on a business.

The Americans with Disabilities Act (ADA) is a law that mainly regulates accessibility for business, government entities, and more. Although the ADA does not discuss websites specifically in the language of the act, United States courts have construed Title III of the ADA to be relevant to website design.

For this reason, a website must meet certain criteria in order to be considered ADA-compliant. Read more

Cloud Act Compliance

CLOUD Act Compliance & Relationship to GDPR

For domestic criminal investigations, law enforcement often wants to gain access to data that is stored beyond its borders. The problem is that data access across borders is sometimes not in harmony with international human rights agreements and the data protection rules of specific nations.

To allow criminal law enforcement operations to access communication data that lies beyond US borders, the Clarifying Lawful Overseas Use of Data (CLOUD) Act was signed by President Donald Trump in March 2018. The core reason that this Act was advanced is because of a US Supreme Court case, United States v. Microsoft.

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Service Providers, Subpoenas, and the GDPR

Hi everyone. My name is John Di Giacomo and I am an attorney and a partner with Revision Legal, which is an internet and intellectual property law firm. And in that role I represent a lot of service providers. These service providers range from software as a service providers, app makers, social network owners, and through that representation I see a lot of law enforcement requests. And I wanted to make this video to discuss how we look at these types of requests from law enforcement agencies and to explain the bodies of law that applied to these requests.

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Trademark Registration for E-Commerce Merchants

John Di Giacomo: Hey everyone, my name is John Di Giacomo. I am a partner with Revision Legal and Revision Legal is a law firm that has expertise in eCommerce and internet law. I wanted to talk a little bit today about why trademark registration is important and what are the benefits of trademark registration for eCommerce store owners.

We get this question quite a bit so let’s kind of start at the beginning and talk about, what is a trademark? A trademark is any kind of design, word, color, even a smell that indicates the origin or source of your goods or services. Read more