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Posted February 20, 2019.
Amazon is pushing its Amazon Brand Registry as a way for brand owners to enhance their position and attack counterfeit merchandise on Amazon. Let’s look at what it does and does not do.
Some background first: A “brand” is advertising lingo for a trademark. It’s a business, product, or service name, such as GOPRO or ALEXA.
The Amazon Brand Registry gives special powers to sellers that have registered their trademarks with the federal Trademark Office. To participate, a brand owner provides Amazon with proof of registration.
Once a brand is enrolled in Amazon Brand Registry, it gets two primary benefits.
First, it gets access to a tool that can search for trademark-infringing listings by others. You can search by keyword, by images of a brand’s products or logos, and by ASINs, which essentially are serial numbers for Amazon listings. You then can use the “Report a Violation” tool to notify Amazon of problems found.
Second, being in Amazon Brand Registry enables that brand to set up a more-engaging design on its Amazon product pages.
What will Amazon Brand Registry actually accomplish for sellers on Amazon? That depends upon what kind of seller you are. There are two kinds of legitimate sellers: brand owners or their authorized distributors, and unauthorized sellers of genuine products.
For brand owners and authorized distributors, using the Amazon Brand Registry will be helpful but not a panacea.
It will help you better detect problems on Amazon, such as counterfeit merchandise, and wrongful use of images of your brand, products, and packaging to sell someone else’s products. Also, it should help you detect sales on Amazon of your genuine products by unauthorized distributors, although it won’t reveal their identities.
Just enrolling won’t stop such illicit activity. The burden is on you to use the tools provided by Amazon Brand Registry to find and report problems. Many brand owners liken the process to playing whack-a-mole.
It will not stop unauthorized resellers from selling genuine products on Amazon or any seller from selling below your desired minimum advertised price.
What about unauthorized sellers of genuine products on Amazon?
A brand owner generally cannot stop you from selling its genuine products, provided the packaging and warranties are unchanged, unless you have agreed otherwise with the brand owner in a contract. Because of that, many genuine products in the retail marketplace are outside of the control of the brand owner.
For example, some people shop sales and discount outlets for products and resell them on Amazon at a markup. Amazon Brand Registry won’t stop such unauthorized resellers.
Yet, participating in Amazon Brand Registry should enable brand owners to make their product pages look more attractive than listings by unauthorized resellers.
I’m not an expert in selling on Amazon. Yet, as a trademark lawyer, I see things brand owners should do to enhance their Amazon position:
• Create distinctive brand names. Avoid giving your product a generic or merely descriptive name. You won’t be able to keep others from mimicking that name.
Instead, use an imaginative name. For example, if you make hand warmers, don’t call your product just “Hand Warmer” or “Warm Your Fingers.” Choose something less obvious and follow that brand name with the generic name of the product, such as “BalmyFeelers Hand Warmer.”
Have a trademark attorney research to make certain your desired trademark isn’t similar to any trademarks already in use for similar goods.
• Register your trademarks with the federal Trademark Office, which is a prerequisite to getting into Amazon Brand Registry.
• Monitor your trademarks for infringement and attack violators – stop anyone else using or registering an identical or similar trademark for the same or similar goods, either on Amazon or elsewhere.
If you allow others to register or even just use similar brands, you will lose brand distinctiveness in the marketplace. Those highly similar brands will show up on Amazon, hurting your sales.
Amazon will not police whether brands are too similar, so the way to keep similar brands off Amazon is to keep those trademarks from being used anywhere or registered.
• Amazon will not drop unauthorized resellers of genuine goods or enforce a brand owner’s minimum-pricing policy, so you must use well-drafted contracts with distributors to create tools to control how your products are priced and distributed.
Written on February 19, 2019
by John B. Farmer
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