Birkenstock CEO accuses Amazon of ‘modern-day piracy’ | Hacker News Reader

Birkenstock CEO accuses Amazon of ‘modern-day piracy’

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113 pointskgwgk139 comments

Counterfeiting is a real issue on Amazon, I understand the appeal of what Birkenstock is trying to achieve : if you see a product labelled Birkenstock on Amazon it's likely counterfeit, don't buy. Sometimes it is worth playing the long game and in this case I think he is right to protect its brand above all else.

Similar issue: Buying apple headphones on amazon

>All< of them are fake

My daughter got bitten by this. Contacted Amazon and they refunded. Still selling them though!

"Contacted Amazon and they refunded. Still selling them though!"

That's the most annoying thing about Amazon. Even if you report obviously counterfeit item, they still continue to sell it. I don't get it, how this can be legal and why nobody sued them yet? Compare that to draconian DCMA actions, where the slightest suspicion can get your site blocked for good..

I think folks misunderstand the Amazon data model. It appears that Product represents a thing that can be sold. But beneath that there's something like a SellerItem, which represents a given Product as sourced from a particular Seller.

If Amazon is notified of a counterfeit Product, the correct action is NOT to remove the Product. There's no reason to think that there's anything wrong with that SKU (it's got the right description, part#, media assets, reviews, and everything).

The problem is the SellerItem - they ought to do something about the naughty seller who's trying to pass off the counterfeit item as if it's the actual Product.

Thus, even if Amazon nukes the offending Seller, the Product will still appear on the site. But one would hope that the offending seller is not listed as one of the choices for fulfilling the order.

Now, Amazon's apparent willingness to treat on-hand inventory from all Sellers as fungible is another problem...

Why should I even care about their data model as a costumer? If any other seller would pull a trick like this: "sorry, my supplier provided counterfeit items - I have nothing to do with it", they would be f-cked anyway. If Amazon stores, Amazon sells, Amazon ships then Amazon is responsible. Try to order some counterfeit iPhones from China and sell them on local market. When authorities come, give them an excuse: "look, it's an Apple logo on it and supplier told it's really iPhone, it's not my fault this item is counterfeit" and tell us how it went.

Yes, of course. What I'm trying to explain is why it doesn't make sense to expect Amazon to completely expunge all references to a given Product simply because one Seller has been shown to offer counterfeit instances of it.

I do understand what you mean, I just don't understand how Amazon avoids responsibility for not filtering their suppliers whereas all other retailers are enforced to that and face hefty fines for failing to do so. There's no use of removing one individual seller when 10 comes in its place instantly.

If they lack the ability to isolate inventory originating from untrustworthy sources or adequately manage its supplier relationships, then yes.

This will blow up in their face when a bunch of preschoolers die when a fake iPad charger or battery burns the school down.

So if you go to the mall, and in the mall a seller sold a counterfeit item, then you believe the Mall will be shutdown, not just the individual store in the mall?

Really?

because that is what Amazon is, an online shopping mall

This analogy is false, because mall doesn't handle goods directly, while Amazon does. It's not uncommon to get counterfeit item even in orders "fulfilled by Amazon". Amazon is more like supermarket imho, where you can "rent" shelf space and I'm pretty sure such supermarket would get into trouble if some of their renters would fill the shelves with counterfeit goods.

If the company who own the mall have their name over the shop door, have their workers inside it, process the transaction, have their name on the receipt, have their name as the receiver on the bank statement ... then yes, that company should not escape penalty just because they own the mall too.

That's technically true yet also irrelevant. Amazon fully controls all aspects of sale.

With other categories that Amazon decided to care about, like toys during Christmas, they put controls on who can sell them and has qualifications to make it harder for a bad seller to just reappear.

In a major category like headphones and power supplies, the company takes a Casablanca style "we're shocked that there is counterfeiting going on here!", although it's not credible that genuine product could be sold at the price points they are selling for.

Another issue of letting sellers glom on to the main product SKU listing is that the reviews are all over the map, and there's no way for a customer to tell which review came from which seller.

I bought some tripod mounts for a VR rig - some of the reviews said they were plastic, some said metal, some said the quality was good or bad, etc. I rolled the dice, and got metal ones that smelled so badly of gasoline that I couldn't keep them in the house. Ended up buying some name brand, that at least had predictable quality.

There are lots of things that Amazon could do to counter these issues. Just look at what they are doing for Prime and 'sold by Amazon' - there is a big checkbox when searching to only show prime-eligible items, and when looking at the list of sellers, amazon is shown prominently with different graphics. They could easily do the same things for verified owners of products, so that OEMs could sell on Amazon and customers could be sure they're buying a genuine article.

If it were truly an insoluble problem, why are there no 'Amazon Basics' counterfeits on the market?

>they ought to do something about the naughty seller who's trying to pass off the counterfeit item as if it's the actual Product.

Which is a problem because how can they hold the seller accountable when they co-mingle items?! They need to barcode and track every item sent in for co-mingling so they know exactly who to punish.

ADD: If the items are co-mingled and I send in a legit item, another seller sends in counterfeits, a buyer chooses my offering because I sell it for less or because I get better reviews, but the item is fulfilled by Amazon, and Amazon just grabs a random item from the SKU bin and sends the buyer the counterfeit item, there's a possibility that I get punished and blamed for something out of my control. Yes, I could pay more to not co-mingle but why should I have to pay to solve Amazon's problem? They either need to track all items sent in or require non co-mingling for everyone.

Amazon keeps commingled items in separate bins. They know where problematic inventory comes from.

As of now there's no extra charge to not commingle. There was a bonus offered last year to commingle, but not currently.

When did this change?

I know it's been like that at least a year, I don't know for sure if they've tracked it since they launched the program.

But basically they keep different inventory in different bins so they know who to blame if there's an issue. Just because they're shipping my goods for your sales doesn't mean they can't track whose goods it was.

>they still continue to sell it

That's how they make money. 8 out of 10 people won't report or can't spot a fake product. They are playing odds here.

Literally? As in, Apple doesn't sell on Amazon? Including Beats?

specifically with the stock white headphones- there's an extremely high chance you'll get a fake pair.

I think the parent is asking is it a "high chance" or a certainty? At least I'm asking that now.

And yet many of those fakes are decent quality. :)

A quick search on amazon for "birkenstock", all departments, I get 1023 results. I wonder if Birkenstock is facing a giant game of whack-a-mole here.

nope they're trying to project or imply that their Brand products bought on Amazon is likely to be fake.

This shows why I have come to use Amazon less and less over the years...no it's not the "piracy" bullshit. It's that Amazon is buying up goods at full retail and then marking them up and counting on my ignorance and impulse to turn a profit.

In short, Amazon shopping has become adversarial. Its website is premised on dark patterns. That's why its search sucks and prices and terms change on the fly. Look how noisy Amazon's web page is, how long the delays are, and how far down the page important discriminating information...like the product description...is buried. In particular, Prime is designed to confuse the value proposition. It mixes in differential pricing, video on demand, and shipping. A person can't look at it and determine how Amazon makes money off of Prime. Having had Prime, the obvious way it profits is algorithmically. It just shows me more products that are cheaper elsewhere.

>It's that Amazon is buying up goods at full retail and then marking them up and counting on my ignorance and impulse to turn a profit.

The fact that Amazon fooled you for so long is telling.

Amazon's goals NEVER been to be the lowest price on everything. They want to provide the best value (convenience, trust, etc.) to the customer. And they do!

I don't even comparison shop because I know Amazon will get my order here in 2 days and it won't be a hassle if I have to return it. Who cares if I'm paying an extra couple of bucks here and there?

Pretty much this, yeah. I buy all my tech stuff at Amazon because I know if breaks down within 2 years, they will refund or replace it within a simple 5 minute livechat.

Another experience: my (second-hand) Kindle Paperwhite suddenly started to displaying ads. It had never done this and I had specifically bought an ad-less version. Go to Amazon, open livechat - fixed within a few minutes. Another company would have probably told me tough luck and to buy the ad-removal.

Considering the hassle I had when getting a laptop repaired that was not bought on Amazon (Lenovo refused to repair a display that no longer turned on because the plastic guide of one USB-slot fell out as well, and the vendor tried to to fuck us over by not taking it back/exchanging it; until I made a stink on social media), my next laptop will almost certainly be bought from Amazon exactly because of the service I saw them provide in similar cases (and it will certainly not be a Lenovo laptop. Never again). Only not if it is a special model bought from the producer, like System76 or something like that.

But that is also because counterfeit goods are less of a problem with Laptops. For many other things Amazon has a real problem there. It's okay to be a bit more expensive if the service is good, it is not okay when I have to be one the lookout for fakes when buying there.

And for the site I have that links to Amazon offers, all the scam offers that are or at the very least were active there ("send a mail to cheater@scamcompany.com before buying") were a real problem as well.

Amazon did not fool me. There was a brief period, nearly a decade ago, when the there was a recession and Amazon was expanding beyond books when Amazon was great for long tail items both due to availability and price. I used it to purchase a twenty-two foot pressure washer wand and a heater coil for the dryer and replacement GE water filter cartridges and ink cartridges for the Designjet 750C and a sun roof seal for the Montero Sport. I used Amazon as an alternative to buying retail or from an SEO optimized website. I always comparison shopped.

These days, the only time I don't comparison shop agianst Amazon is when I know that there isn't likely to be a better deal...and the sum total of that is pretty much going to Amazon for my a digital download of TurboTax every April. I don't have Prime but it still ships immediately. Generally, if I am making a long tail purchase, I start with eBay due to its better transparency, straight forward search, and less misalignment between its economic interests and mine. For electronics, I'll probably just buy from NewEgg because of how bad Amazon's search sucks and because it's free shipping is freer as in "beer" than Prime's $99...which of course applies to Prime items but not not-Prime items and to me, it's not worth the brain cells personally and the five minutes economically to figure out which is the best value SSD...and if I want it fast, there's a Best Buy up the road...and a Walmart.

In fairness, I find returning anything to be a hassle but since I have a brother in law who returns annuals to Home Depot at the end of spring, I know some people arrange their lives around it. Anyway, if something really sucks, I can chargeback.

That's funny because eBay is horrible for comparison shopping, and imho just as hard to determine knock-off products vs genuine.

Though I do also use NewEgg, which irks me nearly as much as Amazon, in that I always reduce down to the products sold by amazon, same on newegg... I don't want to deal with all the reseller. If Amazon stocks the product, odds are at least the product line is okay. The only place I get bit is misc adapters, some are great, others have a weird fit. That includes Amazon Basics products which are often hit or miss.

At one level, I agree that there isn't much difference betwee Amazon and Ebay in regard to knockoffs. On a different level, I find it easier to evaluate offers on Ebay because of the information it provides regarding sellers. Knowing that the item ships from China is a datapoint. Knowing that the particular seller has sold 247 from the listing is a data point that relates to the seller's rating.

The experience you describe regarding Amazon Basics pretty much sums it up. Amazon puts its name on products that are crap because it is in their interest and despite their interest clearly not aligning with mine. Ebay avoids the temptation by not putting their name on products. If it's crap, it's because of the seller not Ebay.

Amazon isn't an online retailer. It's something else. They don't have inventory, not in the sense that anyone can understand it. They do represent sellers (including themselves) of items, ostensibly categorized, but the search results are infuriating.

I was trying to buy school supplies, of which they had prominently linked categories, since it's that time of year. But when I searched for some package of paper, binders, or pencils, if I sorted by price, it included so many wrong products, then I never knew how to just find the best price for a given SKU. Combine that with downright scary results, I'm only left with scanning for reassuring logo's like Prime X and Prime Y.

It's a bazar full of hucksters.

[Edit] Also, I'm a Prime member, and buy everything I can there. Just the other day, I needed ink for by Brother printer. The brother ink was three times as much as the knock off. I really like Brother the company, and I wanted to buy their ink, but the budget that month was tight. So I went with the knock off. It's working fine.

I feel like it only exists because of how awful online payments are, at the end of the day they're just the new paypal.

Can you go into more detail on what you mean by "they don't have inventory"?

I mean they don't have "inventory" in the dictionary definition of the word. I search for items, and they will sell or fulfill an order that I click on, but the results are a confusing list of pseudo-similar things.

It's just like searching the internet for a product, not like buying from a store.

It would be like if I went into Target, and rather than an organized collection of products, it was a flea market with real and knock-off items lumped together in big piles all around the floor. And then a bunch of helpful employees to get me checked out real fast when I made a decision.

I'm an eBay member and it doesn't require a subscription and it seems competitive with Amazon for knockoff ink...I'm also a fan of Brother, but mostly for their cheap laser printers. I'm kinda' meh on their inkjets (I've owned three Brother lasers and three Brother inkjets over the years). Then again, I am pretty much meh on inkjets in general due to the high maintenance and modern habit of refusing to print black when the cyan cartridges is empty.

Anyway, I think (perhaps naively) that eBay's economic incentives are less misaligned with mine than Amazon's. I certainly feel that its platform is designed to provide a sense of greater transactional transparency.

You find the product first, then go to the list of all sellers which will be sorted by price.

Just so you know, using the wrong ink in your printer can lead to clogging up the nozzles. I wouldn't trust knock-off printer ink to be correct. Maybe you'll be lucky and everything will work fine, or maybe you're knocking years off of the lifetime of your printer.

Considering the trouble other companies/sites have gotten into just by allowing _links_ to pirated goods and services (particularly audio video content), I cannot fathom why Amazon hasn't been slammed for hosting and selling so much obvious counterfeit goods.

Hosting, selling and shipping.

How Amazon has not been bankrupted by suits is beyond me. They receive my money, they ship the item from their warehouse. They can tell tales all day but there simply is no third party anywhere close to this transaction.

Too big to fail.

This term was used for the banks. It implied that were they to fail, the economic fallout would be a disaster. I think it was also used for the American big three auto companies (two of which got a bailout).

I don't think Amazon is in that category, do you? AWS definitely for the computing industry, but for sales like these it seems like it would be a boon for local retailers.

You are right, of course. But I'm cynical. The banks themselves were too big to fail. But their executives and directors were/are not "too big to jail", yet most of them walk free today.

Amazon is increasingly woven into the fabric of our economy. How long before it truly is too "big" (read: has installed enough shills in government) to fail, or too big to punish? They would be following in the great traditions laid by oil companies, auto makers, telcos, and of course banks.

Case in point: https://news.ycombinator.com/item?id=14865112

I'm surprised this comment is downvoted, with the obvious and blatant criminality Amazon knowingly engages in being pointed out by several other commenters, this seems like one of the better explanations of why there has been essentially no legal problems with the government. Jeff Bezos is an incredibly smart guy, I suspect he realized very early on that having these bases covered is absolutely crucial to success.

Slightly OT, I'm surprised at downloading here in general. People seem to abuse it as an "I disagree" button.

Down-voting for disagreement was specifically countenanced by pg, as I learnt when I complained in the past.

Here's an example post about this topic: https://news.ycombinator.com/item?id=3760275.

I still think it's broken. A slight fix would be to only grey-out flagged comments and use a separate (or no) way of indicating a comment is down-voted. Grouping poor comments so tightly with unpopular comments is moronic IMO.

Yep, that has amazed me for years now. They need(!) to guarantee things and yet their little rules and guidelines screw me as consumer, not the seller for some strange reason. Their is simply a lot of money made Alibaba -> Amazon -> Consumer or even AliExpress -> Consumer for items that are not as advertised.

My guess would be the MPAA and RIAA are large organizations with a lot of money, and plenty of time to focus on such things.

Where the case here is that it's a bunch of individual businesses that have to weigh their cost of pursuing with the cost of not pursuing a suit, individually.

Counterfeit goods are routinely sold as legitimate on Amazon. It's the same listing as the legit product, too, just a different seller. Or it used to be. Since Amazon started intermingling their own inventory with Chinese counterfeit sellers, you have no idea whether you will get the real thing you ordered or a fake until you receive it regardless of which seller you order from.

This is why I've stopped buying batteries on Amazon. Everything I get for my phone is counterfeit.

My running tally of reportedly counterfeit goods received from Amazon:

* Consumer electronics

* Hobby electronics

* Footwear for aging hippies

* Fashion footwear

* Books (!)

* Perfume

* Clothing

* Pet accessories

* Bicycle accessories

It doesn't seem to be hurting their business one bit.

I've heard a lot about people getting counterfeit books on Amazon. How does that work? Are the contents of the book the same as the legit version but it's been printed by a 3rd party?

It could be copied from an advance copy, which lacks the final editing.

I've heard about people receiving books with the correct contents, but cheaply printed and bound.

> Are the contents of the book the same as the legit version but it's been printed by a 3rd party?

In the case I dealt with, yes.

You can see some example here: https://artofelectronics.net/the-book/counterfeit-editions/

There are a whole bunch of issues discussed here in paralel. Most, like all the back-channel stuff, are contractual issues and aren't really relevant to the consumer. Consumers can benefit from Amazon seeking product back channels.

Trademark violation (counterfeiting) is a different story. Unlike copyright or patents, trademarks are not there to protect the "owner" of the trademark in principle. It's there to protect consumers. You shouldn't be tricked into buying at a fake amazon. You shouldn't be tricked into buying a fake Toyota.

Amazon's tolerance of counterfeits is (very possibly) harmful to consumers, who can't reliably purchase the products they want.

Birkenstock have their own interests. One is competition from counterfeits.

The problem here is that this is a grey policy. If Amazon believes these counterfeit products are valuable and customer friendly, then label them as Birkenstock-imitaion or somesuch.

> Unlike copyright or patents, trademarks are not there to protect the "owner" of the trademark in principle. It's there to protect consumers.

That's not how trademarks work. A trademark is registered by the owner and the trademark has to be defended by the owner. If someone sells something under the brand name Birkenstock, it's not some consumer protection organization that will sue, but it is up to the owner of the trademark to defend it. If trademarks only existed to protect consumers, there would be different mechanisms in place.

Huge swaths of consumer protection are enforced through private lawsuits. Don't confuse the mechanism with the policy goal.

Yes, it is up to trademark owners to defend their trademarks. But the reason they are empowered to do so under the law is because the public has an interest in feeling confident that they know who they are buying from.

Don't get hung up on my point about the mechanism. The general point is that trademark law is a lot more like a property (protecting the owner) than a consumer protection law. When I own a trademark, I can do anything I can do with any property. I can use it myself, I can sell it to someone else, I can license it someone else, I may even license it to someone that makes a different product (with some restrictions). When you buy sunglasses with the Versace trademark, you won't get anything produced by Versace or invented by them or quality controlled by them, or with warranty from them.

The consumer may not have a cause of action for trademark violation if they buy counterfeit product (as you say, it's not their right to enforce) but the consumer has other potential causes of action against the seller of counterfeit goods, including but not limited to: breach of contract, unjust enrichment and deceptive trade practices.

Moreover, there are significant issues related to the tort of defective products, say you buy a counterfeit apple branded iPhone charge, if said charger catches on fire and burns your house down (and the charger itself), then based on preponderance of the evidence Apple could be found liable as the manufacturer of the counterfeit defective product.

Nike faced a similar situation where they felt that they could not effectively control their brand image so they pulled their products from Amazon. However, the product was still around as many individual re-sellers listed Nike products. So Nike ended up having even less control without having a relationship with Amazon [0].

Counterfeits are one issue, but brands have to accept that they cannot control distribution channels as they have in the past. Companies don't like to have their products showcased against similar products, but that's inevitable. Margins will shrink, and they'll just have to compete more on quality, value and reliability. In the end, the consumer benefits. The only solution would be to severely restrict what it means to own a product in a legal sense, which would be very harmful to consumers who value ability to re-sell and donate clothing.

[0] https://www.wsj.com/articles/how-nike-resisted-amazons-domin... (paywall)

> Nike faced a similar situation where they felt that they could not effectively control their brand image so they pulled their products from Amazon. However, the product was still around as many individual re-sellers listed Nike products. So Nike ended up having even less control without having a relationship with Amazon [0].

This brings an interesting point though; is it fair in the market for a retailer/distributor to have such sway that not selling with them becomes a riskier proposition then selling with them? Isn't that the sort of thing that we have anti-trust laws for?

I suppose Nike could have a contract with their resellers requiring they not sell Nike products on Amazon.

It sounds like that's exactly what Birkenstock has and it doesn't make a difference to Amazon.

Why would it matter to Amazon if someone has a contract with a re-seller - "don't sell my stuff on Amazon"?

If the re-seller breaches then it is up to the other party in the contract to sue the re-seller. Amazon has nothing to do with it. So then Nike would just sue a bunch of smaller companies when they try to sell on Amazon.

Virtually all Nike Amazon sellers weren't buying wholesale. They were buying from Nike stores, Nike Outlet, clearance in other stores, etc.

damn, that sounds like it would be a lousy business to be in. But I guess I'm wrong because they did it?

Yes, I've heard from people with mid six figures of inventory in Nike.

The trick is not to pay full price, use discounted gift cards, rewards, etc.

I don't do clothing, but I've used similar techniques on many other categories. Plenty of people have large businesses moving goods from retail to Amazon.

Ok - so any software/tools used in this? It seems like a niche that would be underserved but wondering if there is stuff that is especially used in this field.

What about stuff from Europe - is this mainly an American thing. sorry to be asking about stuff that you probably only know a little bit about, but you obviously know more about it than I do.

Yes, plenty of tools. Tactical arbitrage, oaxray are some popular ones at $99/month.

I do some of that and some wholesale and try to stay informed on what others are doing.

I know there's a tool called FBA Wizard used by some UK sellers, and tactical arbitrage has UK support as well but I don't know that much.

I have bought stuff from amazon.co.uk and sold on amazon.com when the price difference was large enough in the low 5 figure range, really just a handful of products that I sold a bunch of.

"Isn't that the sort of thing that we have anti-trust laws for?"

I might be wrong, but the way I understand it is that anti-trust relates to abuse of a monopoly position, not the monopoly position itself. So, if Amazon were doing things to force Nike to sell through them or get less money elsewhere, they'd be in violation. However, simply being so big that Nike would lose lots of money by not selling there is not.

To put it another way, if I make a video and I decide that I don't want it on YouTube for whatever reason, Google aren't guilty of anti-trust if I then realise that I'm losing a lot of money by not having it there. They're simply the dominant player with the most customers. If, however, Google did something to reduce my revenue from other sources if I don't also have it on YouTube, they would be guilty of anti-trust.

Flawed analogy and IANAL, etc., but that's my understanding.

> So, if Amazon were doing things to force Nike to sell through them

Such as buying up Nike products from other sellers so that way Amazon can still sell Nike whether Nike likes it or not?

That doesn't force Nike to do anything, and Nike gets properly paid for each product sold. Trademark aspects likely are covered by the first-sale doctrine (=as long as you actually sell legit Nike products, you can advertise them as such).

Amazon's saying "Hey Nike, you'll be selling through us whether you like it or not". And it's forcing Nike to actually explicitly sell through Amazon if they want to retain any control whatsoever over the product listings.

Sure, but that's the same with every other reseller: if you want more control over how they sell your things, you need to make a deal with them about it. Just because a seller is larger than others it's not suddenly a monopoly abuse if they legally resell your product. Saying "I don't want you to resell my stuff" is generally speaking not a right you have as a manufacturer (you might have leverage to stop misleading advertisement or misrepresentation of the product though).

I think (but I'm hardly certain) if the cost of fast shipping is reduced and provided for all companies we might start to see some downfall of Amazon.

More and more I'm buying directly from companies websites. Its often cheaper, the service is often better, and the overall shopping experience can often be easier than Amazon (comparing products and colors on Amazon is a nightmare). The only real issue is not having 2 day shipping.

This is why I think Amazon is investing so much in there own label/brand. If shipping is fast and cheap and most companies have a good ecommerce system and It was all aggregated (aka google) nicely why would I buy from Amazon?

For so long people have said lower price is what drives sales. That people go where the lowest price is. I'm starting to think immediacy is now the higher priority. When I need baby wipes ... I needed them yesterday.... and I need them to work and be the correct ones.

> Kahan added that he is considering legal action against Amazon.com for “knowingly encouraging a breach of our policy.”

This seems like a very weak argument.

For context, Kahan was referring to Amazon's offer to purchase retailers' Birkenstock products. Birkenstock do not sell to Amazon and forbid any of their stockists from supplying resellers.

Why is that a weak argument and not a valid cause of action for tortious interference with a business relationship/contract?

To me (not a lawyer) it seems like a weak argument. The policies in question are Birkenstock's. Amazon doesn't necessarily know anything about the restrictions placed on the retailers.

If this were to go to court during the discovery process Amazin would have to disclose all communications their employees had regarding the Birkenstock brand. Of course there would be other evidence that Amazon was on notice of violating Birkenstock's policy which Birkenstock would be able to produce, and it's hard to imagine employees didn't have internal communications in response.

I can't recall the specifics now, but there have been recent cases showing that after the first sale, the manufacturer no longer retains any right to determine what happens to their products. So if a Birkenstock shop sells product to Amazon (not through Amazon, but to them), it's none of Birkenstock's business what Amazon does with it no matter what Birkenstock's policies are.

Perhaps Birkenstock-only stores have a contract with Birkenstock that defines transfer of product from Birkenstock to the store as not a sale. Could be a consignment. Then the first sale would be to a retail customer (or to Amazon, in the case discussed here).

Birkenstock can't restrict what customers do with the shoes, that's true. But that doesn't mean Birkenstock can't refuse to sell to that customer again.

Also, I don't know if any of this applies to resellers. The reseller isn't the customer.

Unless the retailer is selling the shoes on consignment or something, the retailer is the customer of Birkenstock.

In fact Birkenstock just needs to send a cease and desist letter to amazon and that is enough to prove that amazon knew about this policy.

    > Tortious interference with business
    > relationships occurs where the tortfeasor
    > intentionally acts to prevent someone from
    > successfully establishing or maintaining business
    > relationships with others

So you'd have to show that the action had stopped the business relationship being maintained, which seems a stretch.

Further:

    > acts improperly with malicious intent and
    > actually interferes with the contract/expectancy,
    > causing economic harm

This also isn't something I'd want to spend time and money arguing with Amazon's legal team over, which is presumably why they're just "considering" it, rather than doing it.

> So you'd have to show that the action had stopped the business relationship being maintained

According to the article, Birkenstock policy is if anybody sells their Birkenstocks to Amazon, then they'll be blacklisted and will never receive another pair of Birkenstocks ever again. That sure sounds like Amazon's action stopping a business relationship from being maintained.

Your opinion clearly differs from mine, but I struggle to see any of the examples the law is meant to target as being similar. Amazon's not stopping the business relationship from being maintained, Birkenstock is via their arbitrary agreements. If anything, I'd see Amazon as having a strong case that Birkenstock are interfering in their relationship with their sellers.

What do you mean by "arbitrary agreements"? Denigrating their policy as "arbitrary" sure makes it sound like you're biased.

I'm sure that once Amazon started reaching out to sellers to buy Birkenstocks, they were told about Birkenstock policy. If they continue reaching out to sellers after learning that (and it appears as though they did) then I would think you can make a good case that Amazon is deliberately interfering with the sellers' relationships with Birkenstock, because Amazon knows that if they're successful in convincing a seller to sell their stock to Amazon then the seller will be blacklisted by Birkenstock.

That said, IANAL, so I have no idea if this case would actually be successful if brought to suit. But it looks to me as though it has a chance.

This is fascinating. It's a (possibly too late) push back against a growing monopoly/monopsony but the approach is a heavy-handed rejection of First Sale doctrine and the positive aspects of open markets.

Trademark should suffice, if enforced well, for customers getting the right products.

On the other hand, a world in which absolutely everything is available at Amazon and most shoppers use it exclusively will be a terrifying one where Amazon will have true tyrannical power over the market.

This is not a rejection of the first sale doctrine. This is about Birkenstock being free to choose their distributors. End users are of course free to sell their own shoes, and Birkenstock is free to choose for which retailers it will provide its stock.

All Amazon needs to do is get someone to go to a Birkenstock store and buy sandals and then sell them through Amazon. That's not the store selling to Amazon, it's selling to some customer who happens to then resell them on Amazon.

The first-sale doctrine applies when Birkenstock is asking stores to figure out how to control what customers do with the sandals after they are sold.

Birkenstock isn't asking stores to figure out how to control what customers are doing. The problem is Amazon is approaching the stores themselves and attempting to buy out their inventory. This has nothing to do with customers deciding to sell their purchased shoes to Amazon.

> This is not a rejection of the first sale doctrine. This is about Birkenstock being free to choose their distributors.

Not so, the article says "He emphasized that the German shoemaker prohibits shop owners from selling, distributing or shipping its products to resellers". It doesn't distinguish resellers from distributors. What if I buy a pair, never open or wear them, then a year later want to get rid of them by selling them as "New"? Under this policy the store I purchased them from would be closed.

> What if I buy a pair, never open or wear them, then a year later want to get rid of them by selling them as "New"?

It's pretty clear that you selling your own shoes as a private person is a different case from a professional reseller.

In this day and age, for items which do not operate on razor thin margins (like I imagine Birkenstocks are) I don't understand why there isn't a technical solution to this. Slap a unique qr code on every item leaving your plant, and have vendors check that code against your database every time they get new stock. Seems to me everybody wins? Which player is incentivised against this?

You're assuming that vendors are selling these counterfeit products unintentionally. There are fat margins to be had for counterfeit merchants on Amazon / eBay / Aliexpress.

Yes for the merchants, but not for Amazon (I assume). They could do this for FBA items. Maybe even add a logo for items that are verified to be authentic this way.

The lower the price, the higher Amazon's sales volume, which is their top level metric.

That is true in the first order, but in the long term, don't they run a huge risk of customer dissatisfaction shipping lots of counterfeit goods?

Look at Amazon warehouse photos[0] and try to imagine how long it would take to scan every single item out there. Also, what happens when 1000 items have the same QR code? Do you inspect every of them individually to determine which one is genuine? Or do you discard everything, genuine products included?

0. http://thefrick.com/wp-content/uploads/2014/11/enhanced-buzz...

Surely they scan the SKU on every item at some point anyway?

I'm not familiar with Amazon internals enough, but I doubt they keep SKU for every individual item, maybe for categories or types, so i.e. all the headphones of the same model has the same SKU. Then it's enough to scan a single code on crate/bin/pallet which makes things far easier, but it's not sufficient to track down individual counterfeits.

eCommerce is all about cutting out the middle men. The only way goods can be sold in shops is if the shop is making enough money. The margin needs to be there to support space and people. Which means the distributors can't be allowed to have a big margin - if the had big ones they are tempted to do big sales to the like of Amazon undercutting individual shops. Which makes the role of traditional middle men tough. Also the fewer steps in the distribution the more commercial and contractual power the producer (provided a unique product) has.

It is a war - product brands vs. platform brands. For the former controlling distribution is key.

If there really is a piracy issue, why isn't ICE doing its job and investigating Amazon's suppliers? They can't just be handling immigration matters all day.

Amazon.com as of writing my comment has tens of models listed. If birkenstock pulled their product how is Amazon allowed to list this?

If Amazon can get their hands on stock, nothing stops them selling them. At least I believe there's no law against it.

What about counterfeit stock? Isn't Amazon liable for that?

Yes, if someone buys the product and it turns out to be counterfeit, they can sue Amazon. But Birkenstock can't sue Amazon for selling legitimate Birkenstock products, and no one (so far) has been able to force an audit of Amazon warehouses to prove that their stock is legitimate.

The problem is that Amazon can fall back on the possibility of unofficial resellers of hypothetically genuine Birkenstock goods - you or me walking into the mall, buying a pair of Birkenstocks, and reselling them on Amazon. This, obviously, isn't an efficient business model: You or I paying list price, adding our markup for our expenses and profit, and Amazon's profit demand that we find a way to get them at less than the price on the sticker at the mall to have a competitive price (or we just list them on Amazon at higher than list for people who want to NOT go to a Birkenstock shop and would instead prefer to have them appear on their doorstep...just saying...). Hypothetically, we could find them on sale, or go to the shop owner and get them at near wholesale prices under the table, or the shop owner could list them himself. Of course, the other hypothetical way we could make this business work is to make our own fake Birkenstocks and send those to Amazon.

Amazon is just throwing their hands up and claiming they aren't responsible for determining which of these is the case. And I honestly don't understand why Birkenstock isn't able to bring them to court, get a warrant to check their warehouses, and prove that the goods they have are counterfeit. After this, they could either go for monetary damages and try to incentivize Amazon to self-police for fear of a repeat suit, or they could see if the judge is willing to force Amazon to stop listing products under the Birkenstock name.

I searched and clicked one of the first few products and among the top reviews is a one-star review with pictures claiming to show a fake pair they'd received from Amazon. So that's at least part of it.

There are large categories of items that I just don't even bother looking at Amazon these days for exactly this reason. I can't believe they can get away with selling so much counterfeit stock.

We operate a powerful brand tracking system to monitor branded products sold on Amazon. If you're a brand looking to protect your products, check out www.semantics3.com

I find it amusing thay the first time i could not read a wapo article free from HN was now: about a negative Amazon article.

So... Wsj.. Wapo and nyt (paywall me)

For the Washington Post and New York Times a new incognito session solves that problem.

another option, open up dev console. go to settings and click disable javascript. all the content shows and none of the ad/bs crying crap does not

WaPo is owned by Amazon's CEO. [insert conspiracy theory here]

That reminds me, I need some Birks. To the store locator!

How do you know if the brick and mortar store has real Birkenstocks? You essentially have to buy Birkenstocks from the producing company, or the store could open up their finances so you could see the receipt of the store buying directly from Birkenstock.

Readily available on Amazon.de, from Amazon itself and from third party shoe sellers. Just saying. Quite a bit cheaper than in the US, too (sample size = 1).

You mean the counterfeits?

I have no reason to believe they are counterfeits. Their shoes are 20% cheaper in Germany even when you buy from the official store.

I think Birkenstock just has a different relationship with the German Amazon subsidiary. It's also conceivable that limiting the resale in the way they do in the US is simply not legal in Germany.

The whole "let's not sell our products on Amazon because of counterfeits" seems exceedingly silly to me.

The only people who will know about it are your "hardcore" buyers, those who keep up with everything to do with your company. To the average buyer, if the official products aren't up, all that'll do is give more exposure to the counterfeits than before, because the legitimate goods aren't there to soak up that exposure.

If anything, if they're scared of counterfeits, they should have listed the genuines even more aggressively, to get more of the views that would have gone to the counterfeits.

I half agree with your point but the again, what about buyers who receive badly made counterfits and assume thats is the brands quality control level?

Sort of screwed if you do and buggered if you don't sort of situation.

> If anything, if they're scared of counterfeits, they should have listed the genuines even more aggressively, to get more of the views that would have gone to the counterfeits.

It's ultimately the responsibility of the market place to ensure that illegal, possibly trademark breaching products are not on sale. That is their job. Amazon failed, and continues to fail to do that. From this perspective I can understand why makers don't want Amazon to sell their stuff. Which may raise enough attention to finally do more against counterfeits.

In the end, it benefits us all.

If the products are actual counterfeits (which are illegal) it's the job of the law to block them from being sold. If it's just "we don't like comparable products near ours ..." then I don't see why that's Amazons responsibility either.

Unfortunately Amazon make it really hard for customers to tell the difference, 'fullfillment by Amazon' means that third party seller products are on the same warehouse shelf as Amazons own stock. So you buy direct from Amazon but actually get a third party counterfeit product.

That "modern-day piracy" crack is terribly offensive, and it's going to backfire in his face. "Piracy on the high seas" is still a thing. People have been murdered, tortured, starved to near-death, and used as human shields by Somali pirates.

To equate Amazon exercising the right of first sale by buying and reselling shoes to the violence perpetrated by Somali pirates is an insult to the survivors of actual piracy and to the families of anyone who was murdered by Somali pirates.

No thread would be complete without someone taking offense at something...

I used to believe that, too, until I learned that "piracy" as slang for "copyright infringement" dates to 1603: http://www.luminarium.org/renascence-editions/yeare.html

You are (and I was) 400 years out of date. That ship has sailed.

Um, I thought the Statue of Anne was considered the first copyright, in 1700 and something?

I'm not sure from a cursory look that the Word-Pirate is anything other than a "hack"?

Statute!

Saying that nothing is piracy unless it involves murder, torture, and starvation is ridiculous.

Their making overpriced sandals and are now surprised everyone can do the same, for cheaper, and get a piece of their pie. Well, doh.

Birkenstock does not mind anyone selling cheaper sandals, but they do mind that "after deeming that Amazon wasn’t doing enough to guard against fakes."... which is actually reason I buy less on Amazon these days. I can never be sure if I am simply getting a "good price" or a cheap look-alike product.

If you can do the same for cheaper, great. You can't pretend that you are Birkenstock. You can make up your own name, call them Birkenstock-like sandals, home brand sandals, whatever you want.

Birkenstock is apparently complaining about "counterfeit products and unauthorized sellers." Those are two very different things.

Unauthorized reselling is legal, counterfeiting is not. These are good laws. One helps consumers, the other harms them.

-This message was written by sametmax

> -This message was written by sametmax

...que?

dalbasal was making a point.

Well, even if you could make birkenstock-like sandals usually you still have design patents to deal with too. Only birkenstock is allowed to sell sandals that look like birkenstock sandals.

They're not really overpriced. They're noticeably higher quality than the knockoffs. The whole point is that you can't check the quality of a sandal online, but you can look at your friend's birkenstock, like it, and buy one with the same brand online confident in the knowledge that you're getting the same thing your friend showed you.

Except you can't if Amazon allows fakes. It's reason enough to stop buying brand name stuff on Amazon until they work this out, honestly .

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