Being complained of trademark infringement: should you appeal or file a counterclaim? Lawyer Hu Lifan discusses the order of choices for Shenzhen sellers, and who holds the initiative is crucial.

Conclusion first: when a trademark infringement complaint is filed against you, appeal first and counterclaim second; the order cannot be reversed. In Amazon trademark complaint enforcement, an appeal is a defensive move to protect the store and funds, while a counterclaim is an offensive move to pursue liability and seek damages. Most Shenzhen sellers want to counterclaim right away; in practice, we generally advise first making full use of the appeal window, then assessing the subject matter of the counterclaim. Who holds the initiative depends on whether you have a registration number and a chain of evidence in hand.

There are only two paths for handling Amazon complaints—don't mix them.

Amazon’s internal process for intellectual property complaints and appeals is a platform mechanism; the entity handling the matter is the platform, not a court. The complainant files a complaint through Brand Registry. Once the respondent receives notice, it enters the appeal process and generally must submit a Plan of Action (POA) within 72 hours; otherwise, the listing will be taken down and account funds may be frozen. A counterclaim follows a separate track: filing a cancellation or opposition with the Trademark Trial and Appeal Board (TTAB) of the United States Patent and Trademark Office (USPTO), or filing suit directly in federal court. The two tracks operate on completely different timelines, and mixing them is the surest way to lose on both. Many clients encountering this for the first time think that if they file a counterclaim, the platform will wait for them. The platform will not wait; the listing will be taken down all the same.

The response period is only 3 months; it can be extended, but it will cost money.

If the other party has already registered in the United States and what you received is a notice in a TTAB proceeding, the response deadline is generally within 30 months for a post-registration cancellation, or 40 days to answer in an opposition proceeding, with a possible 30-day extension. What really puts people in a bind is federal court: if you are sued for trademark infringement, the answer deadline is usually 21 days, and an extension can be requested. These deadlines are mandatory, and missing them results in a default judgment. In practice, we have seen sellers conflate platform appeals and court answers into a single timeline, and as a result, the platform appeal passed while the court side had already defaulted. So the first step is always to confirm which document you received; platform notices and court summonses look completely different.

What can be obtained at the appeal stage, and what can be obtained at the counterclaim stage?

The goals of an appeal are very specific: restore the listing, unfreeze the funds, and remove the complaint record. What you need to submit is procurement invoices, the chain of authorization, trademark registration certificates, or evidence of prior use rights. Amazon's requirements for invoices are very detailed—date, quantity, and supplier information are all indispensable, and in 2026 the platform's verification of invoice authenticity will be much stricter than in previous years. The goals of a counterclaim, by contrast, are legal in nature: a declaration of non-infringement, cancellation of the other party's trademark, and damages. If you go through TTAB cancellation, the basis is 15 U.S.C. §1052 and §1064; if you go to court, you can assert false complaints under the Lanham Act. The evidentiary standards for the two paths are different: the platform only looks at "whether you have a reasonable basis," while a court looks at "who is right and who is wrong." This is also why we recommend appealing first: the appeal materials themselves are part of the evidence for a counterclaim, so there is no harm in accumulating them first.

The timing of a counterclaim depends on how stable the other party's trademark is.

Not all complaints are worth countering. If the other party's trademark has been registered for a full 5 years, it has already passed the incontestability period, and pursuing a TTAB cancellation becomes significantly more difficult. However, if the other party's registration is less than 5 years old, or if there has been continuous non-use for 3 years, there is room for cancellation. 15 U.S.C. §1065 provides that once a trademark has been registered for 5 years and a Section 15 declaration has been filed, the trademark acquires incontestable status. In practice, we generally recommend first checking the other party's trademark registration date and Section 8/Section 15 filing records before deciding whether to pursue a case. A common misconception among Shenzhen sellers is "I was complained against, so I'm in the right" — this does not hold up legally. You must first prove that you are not infringing, and then prove that the other party's trademark has problems. This part can be cross-referenced.US and EU Intellectual Property PracticePrepare according to the process.

Who holds the initiative depends on three things.

First, do you have a U.S. registered trademark? If you have a registration number, your chances of winning a platform appeal are much higher, and you also have leverage in negotiations for a counterclaim. Second, your sales timeline. The U.S. follows the first-to-use principle, but registration has constructive notice effect. If you used it first but didn't register, the burden of proof is heavier. Third, the other party's complaint history. If the other party is a "trademark troll" filing complaints in bulk, a counterclaim is more cost-effective. Many clients panic the first time they encounter this, but in reality, the other party is often afraid of being countersued too. Conversely, if the other party is a brand owner enforcing its rights normally, going head-to-head is very costly. These three things determine whether you defend or counterattack, and also determine where your legal fees go.

The most common sequencing mistake cross-border sellers make.

The most common mistake is spending money on a counterclaim first, only to find that the platform appeal deadline has passed and the listing is already dead. You win the counterclaim, but the store is gone, and you can't get much compensation either. The second mistake is writing the appeal materials too casually and admitting the infringement facts in the POA, and later this statement becomes the other party's evidence in the counterclaim. The third mistake is ignoring the EU and the UK. If you receive a complaint on Amazon Europe, it goes through EUIPO or the UK Intellectual Property Office (UKIPO), and the procedures and deadlines are different from those in the US. If your complaint comes from the EU, it is advisable to also review the EU opposition and revocation pathways in the intellectual property legal services of other countries, and not apply US experience to Europe.

If you really want to file a counterclaim, first calculate the costs and recovery clearly.

Attorney fees for a single TTAB cancellation proceeding typically range from $15,000 to $50,000, and federal court is even more expensive. Whether the damages you seek can cover the costs depends on the other party's sales volume and your actual losses. In practice, we generally recommend sending a demand letter first as a test; many complainants withdraw their complaints upon receiving the letter and never proceed to a counterclaim. If the other party is a foreign entity, enforcement is also an issue. So the order is: respond to the complaint to stay alive, send a demand letter as a test, then decide on a counterclaim. Only by following this sequence do you keep the initiative in your hands. For more basic guidance on overseas rights protection, you can refer to the explanation on overseas intellectual property, or contact us directly.Lawyer Hu LifanThe team conducts a complaint document diagnosis.

Attorney Hu Lifan, from the Foreign-Related Intellectual Property Team at Guangdong Zhiming Law Firm, focuses on trademark, patent, and copyright matters in the United States and the European Union. If you are stuck due to an Amazon trademark complaint, or are unsure whether to appeal or file a counterclaim, you can call the hotline at 4008-363-555 to schedule a document review.

Disclaimer: This article is intended to share general legal information and does not constitute legal advice for any specific case. Trademark complaints and counterclaims involve platform rules, foreign laws, and procedural deadlines. For specific handling, please consult a licensed attorney based on the facts of your individual case. Guangdong Zhiming Law Firm assumes no liability for any decisions made based on the content of this article.