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Intellectual property

Agents in Amazon Brand Registry should tread carefully

December 18, 2020 Leave a Comment

Don’t file IP complaints if your seller account will benefit

By: Lesley Hensell

Third-party sellers who have close relationships with brands may be putting themselves at risk, if they are using Amazon Brand Registry in a way that Amazon doesn’t like, causing them to file an infringement report.

A recent review of Amazon’s Code of Conduct for sellers reveals this tidbit: Filing Infringement Reports as an Agent or Brand Protection Agency

Amazon understands that many brands may choose to have brand protection agencies or agents report intellectual property infringement on their behalf and accepts submissions from authorized agents.

However, Amazon does not permit individuals with active selling accounts to file infringement notices as an agent of a brand when the filing of those notices could benefit their own selling account (through removing competing listings, for example). Any sellers filing notices as an agent to benefit their own status as a seller may have their selling account terminated.

This is one of those easy-to-overlook bits and pieces of policy that can go completely unnoticed. It also attempts to draw a bright line in situations where sellers may be doing absolutely nothing wrong – but Amazon doesn’t care.

 

So what’s going on here?

In some cases, brand owners choose a third-party seller as their preferred reseller on Amazon.com. These brand owners may not want to be involved in the day-to-day mechanics of selling on the platform. They simply want a familiar storefront they trust to be the face of their products on Amazon.

Brand owners have ownership of their Amazon Brand Registry, but they can allow others to act as “agents.” These agents can take actions such as editing listings, uploading photos, and reporting counterfeiters and other infringers.

Amazon has decided that it’s fine to use an agent to report intellectual property violations – such as those for counterfeit, trademark, copyright and patent. But the reporting party cannot be a third-party seller who is also selling on the ASIN in question.

Amazon Brand Registry

 

Wow, that’s confusing

Frankly, this makes little to no sense. Why?

Well, in many cases, brand owners big and small also sell their own products on Amazon.com. They use brand registry to manage their listings and report infringers.

So Amazon has decided that a brand owner who sells on a specific ASIN can report infringers on that ASIN. But third-party sellers who are trusted agents of the brand cannot. In the end, the effect is the exact same.

I can hazard one guess as to this hazy enforcement decision. If a brand files false infringement reports, the brand can lose its selling privileges (if it’s also a third-party seller) or its brand registry privileges. Perhaps Amazon doesn’t have an adequate enforcement mechanism to specifically punish an agent that goes rogue and files false reports.

Yet, if that agent is a third-party seller, wouldn’t it be easy enough to suspend their account? Inquiring minds want to know.

Where do we go from here?

If you represent a brand on Amazon and manage their ABR as an agent, you have a few options:

  1. When you spot infringers on the brand’s listings, report it to the brand. They can report it from there.
  2. Hire an agency or law firm to file your ABR infringement reports. If they are also an agent on ABR, Amazon will not know the genesis of the reports about infringement.
  3. Most importantly, only file genuine infringement reports. ABR is not a cudgel to be used for mass actions against competing sellers. It should only be used to knock others off of listings in true cases of infringement. Do test buys. Research. Inspect the products you receive. Be responsible. Brand Registry is not there to limit competition or distribution. It’s there to keep bad actors off of your listings.

Have questions? Ask Riverbend Consulting or give us a call! 877-289-1017


Lesley Hensell

Lesley is co-founder and co-owner of Riverbend Consulting, where she oversees the firm's client services team. She has personally helped hundreds of third-party sellers get their accounts and ASINs back up and running. Lesley leverages two decades as a small business consultant to advise clients on profitability and operational performance. She has been an Amazon seller for almost a decade, thanks to her boys (18 and 13) who do most of the heavy lifting.

Filed Under: Account Health, Amazon, Amazon Appeal, Amazon seller, Amazon Seller Central, Appeal, Customer Serivce, General, Linked Account, Seller Central, Seller Fulfilled, Seller Performance, Seller Support Tagged With: 3P, ABR, Agent, Amazon, Amazon account, Amazon seller, Amazon Seller Central, Brand registry, Infringement, Intellectual property, IP

The Top Five Trademark Registration Options for Amazon

May 21, 2020 Leave a Comment

What is the best way to get a trademark registration for Amazon in a timely manner?

By: Preston P. Frischknecht

If you sell online, getting a federal trademark registration to protect your brand can be an important tool. For example, eligibility for the Amazon Brand Registry generally requires a federal trademark registration. Many eager sellers are surprised to learn that it may take months or longer to obtain the trademark registration.

registered on amazon

So, what are the best trademark registration options for Amazon and how do you get it in a timely manner? Here are some options compared:

1. Do it Yourself (DIY)

Like many things, it’s possible to get a trademark registration by doing it yourself—you will save some money if you pull it off. But, one Stanford study shows that pro se applicants are less than 50% likely to succeed. Delays, failure, wasted filing fees, and costly rebranding can be painful. Unsurprisingly, the USPTO “strongly encourage[s]” use of a U.S.-licensed attorney who specializes in trademark law. So, trying to get a trademark registration by yourself is probably not the best option.

2. Online Trademark Filing Service

There are many online trademark filing services (think Legalzoom.com) that are DIY+, offering to file trademark applications for between ~$100 and ~$500 (not including government fees). Unfortunately, many of these sites skimp on upfront due diligence and work. They also aren’t great at gleaning and analyzing the information necessary for preparing a well drafted trademark application. Problems during trademark examination like added costs and delays are still common in this approach. While online trademark filing services are slightly better than DIY, they are usually not as good as a traditional law firm.

3. Law Firm

Using a traditional law firm is the tried and true way to do trademark registration. Again, if a firm has good trademark attorneys, your chances of success go up dramatically (as mentioned above). The problem is that this is a very costly route: according to the American Intellectual Property Law Association (AIPLA) 2019 Report of the Economic Survey (“2019 AIPLA Survey”), the median cost for trademark attorney work (like a trademark clearance search and opinion, trademark application, and trademark prosecution) is $3,230, not including government filing fees. For many folks, this is just too expensive.

4. Amazon’s IP Accelerator Referral Service

In a variation of the law firm option, Amazon advertises a list of trademark attorneys to obtain trademarks for the Amazon Brand Registry at pre-negotiated rates. However, these rates are still relatively expensive. For example, an Amazon IP Accelerator attorney charges $2,400 for a comprehensive trademark search and trademark application (not including government fees). According to the AIPLA Survey, this is higher than the median cost of around $2,000 for the same services by other trademark attorneys. So, Amazon’s IP Accelerator referrals are better than DIY and online filing services, but close to traditional law firm expense.

5. Solo Trademark Attorney or Small Firm

Solo trademark attorneys and small firms are usually less expensive than larger law firms and they can perform as good or better than them. This is the case because bigger firms have larger overhead to cover. In fact, according to the 2019 AIPLA Survey, solo attorneys are typically 32% less expensive than their peers at larger firms. So, using an experienced solo or small firm trademark attorney is a great option. You will do much better than you would on your own or with an online trademark filer, and with less expense than a regular law firm or Amazon’s IP Accelerator Referral Service.

 


BrandTrademarkRegistry

Contributor Preston P. Frischknecht is the principal trademark attorney at Brand Registry Trademark. Brand Registry Trademark is a small intellectual property law firm specializing in legal services for online sellers throughout the United States and abroad.

Filed Under: Account Health, Amazon, Attorney, Customer Serivce, General, Intellectual Property, IP, Lawyer, Seller Central, Seller Performance, Trademark Tagged With: Amazon, Amazon seller, Attorney, Brand, Copyright, Deactivated, Intellectual property, Inventory, IP violations, Registered, Suspended, Suspension, Trademark

The many kinds of intellectual property violations on Amazon

May 18, 2020 Leave a Comment

Intellectual property violations on Amazon run the gamut, but all put your seller account at risk

By: Kayla Forrest

Intellectual property rights are taken seriously. Why? Because intellectual property violations on Amazon can turn into a legal issue. 

When it comes to Intellectual Property (IP), Amazon protects itself. And to protect itself, Amazon gives the benefit of the doubt to the alleged Rights Owner. If a Rights Owner (RO) made a complaint that their IP was violated, and Amazon did not act, Amazon would be legally liable. 

Unfortunately, this creates terrible headaches for Amazon sellers who are often incorrectly warned – and even suspended – over trademark, copyright, patent and counterfeit claims. 

Intellectual property
Standard IP complaints on Amazon

Trademark is one of the most commonly filed IP complaints. A trademark is a legally registered symbol or word(s) that is used for representing a product or company. If an RO has a registered and active trademark, and is being shown on someone else’s detail page or product, enforcement can occur.

This can also happen with a Common Law Trademark (unregistered trademark). Amazon will warn sellers for Common Law Trademarks when the trademark can be verified. This means the trademark must be known in the region it is being reported, and it must be associated with the RO.

Copyright infringement means that the RO’s work is being used without permission. This applies to a picture, book, film, song and many other forms of media. On Amazon, this complaint is more likely to occur with images. If an RO can show that there is a violation by providing information about the work or the copyright registration number, the seller will be warned. Technically speaking, the media does not need to be registered at all.

There are two types of patents that can be reported to Amazon. These are design patent and utility patent. To put it simply, a design patent is for the visual qualities of a product. A utility patent will protect the functionality of a product. A valid, registered and active patent must match a supposedly infringing product. Dealing with a patent infringement issue can be very difficult. It may be best to seek legal advice if the situation occurs.

The most common IP complaint: counterfeit

The most common infringement type that a seller may face is for counterfeit product claims. For an RO to report a counterfeit claim, they must have a registered and active trademark. The trademark must be seen on the product, and the RO must be claiming the products are fake or counterfeit. Frequently, an RO will declare exclusive distribution when supporting their counterfeit claim. Amazon clearly states that they will not support an exclusive distribution claim. Therefore, it would be useful for sellers to look out for exclusive distribution when attempting to contact an RO.

What to do when IP complaints are filed

In conclusion, all of these intellectual property claims can cause headaches for sellers. But with the right knowledge, you can gain reinstatement for your account or ASIN. Even though Amazon is looking to protect itself and the RO, all sellers deserve a chance to appeal infringement warnings. Proper advice can help the seller move past the issue and prevent future enforcements.

Most importantly, don’t ignore IP complaints. Address them head-on. If Amazon thinks you are not serious about these and other warnings, you are at much higher risk of losing your selling privileges — maybe permanently.

Need to talk about intellectual property violations on Amazon issue in your account? Give us a call 877-289-1017 or visit our website.


Kayla Forrest focuses on appeals for Amazon account and ASIN reinstatements. Kayla has 4 years of Amazon experience where she worked in Seller Support and as an Investigation Specialist. In those roles, Kayla dealt with escalations and focused on FBA, intellectual property rights, as well as brand and product gating.

Filed Under: Account Health, Amazon, Attorney, Customer Serivce, FBA, General, Intellectual Property, IP, Lawyer, Seller Performance, Trademark, Verification Tagged With: 3P, 3P seller, Amazon, Amazon FBA, Amazon seller, Appeal, Common law trademarks, Copyright, Coronavirus, Counterfeit, Deactivated, Deactivation, Documents, Fake, FBA, Inauthentic, Intellectual property, Inventory, IP violation, Patents, Reactivated, Rights owner, Suspended, Suspension

Spring clean your Amazon seller account

May 8, 2020 Leave a Comment

Don’t let a messy Amazon account cause problems or hamper sales. Clean it up!

By: Jay Morane

Spring has sprung. Don’t only spend time cleaning your house. Invest some time spiffing up your Amazon seller account. That’s right, spring clean your Amazon seller account.

I want to give you a few tasks you can tackle today that will help reduce the risk of future problems. In addition, I’ll offer suggestions that may increase sales. 

You can’t spell Spring without IP

Anyone who has dealt with an intellectual property (IP) issue will tell you that they are not fun. IP issues can be related to trademark, copyright, counterfeit, or patent. Unfortunately, they can be pretty complicated.

There are steps you can take today to reduce the possibility of an IP issue in the future and better prepare you to address one if it should happen:

  1. Clean up your inventory. Just because a listing is inactive, out of stock or you have never sold it, that does not mean it cannot cause you headaches. IP issues can arise from any listing that appears in your inventory, even if you never had any units of that item for sale. If you have a bunch of listings in Manage Inventory that you are not going to sell, delete them! Why take a chance on having to address an issue that you can prevent just by deleting the listing?
  2. Can I see your license and registration? If you are selling licensed, copyrighted or trademarked products, you are at risk for an IP issue. That is the harsh reality of selling on Amazon. Even if you are authorized to sell a product, at some point, you could be asked to prove it is authentic. If Amazon were to request documents such as a Letter of Authorization or Licensing Agreement, do you have that paperwork? Now is the perfect time to get yourself prepared for just such a situation. If you do not have these documents, contact your supplier or the Rights Owner to get them now. Keep them on file. That way if something does happen, you can respond quickly and minimize the downtime for your account.
April showers bring May … Product Detail Pages:

When was the last time you looked at your Product Detail Pages? Let me clarify that. When was the last time you looked at them on your phone? 

A very wise colleague pointed out to me that most of the shopping done on Amazon is through the use of mobile devices such as our phones. However, most sellers create their listings on PCs and laptops, which have fairly large screens. The pages are created with images to be seen on these larger screens, and the titles may get a bit lengthy to maximize the search exposure. 

Then there are the bullet points and descriptions, which can also get a bit wordy at times. In the end it looks great on a 24-inch monitor screen, but how does it look on a 4-inch cell phone screen?

Now is a good time to go back and look at some of your Product Detail Pages from a different perspective – a smaller one. Break out you cell phone and take a look at some of your PDPs. Do they convey the necessary information in the smaller format? Are they easy to read and understand? Do the images appear clear and easy to see? Are your bullet points ordered with the most important one first?

You want your Product Detail Pages to be clear and concise at any size.

Have questions? Now is the time to get answers

Don’t wait until crazy Q4 to have your critical questions answered. Just spring clean your Amazon seller account! If you need advice or have questions about your Amazon account, ask them now! Check out the help files on Seller Central. Go through Seller University. Start some discussions in your favorite Amazon seller groups.

Or, if you need help, don’t hesitate to contact us at Riverbend Consulting. We are happy to get your account shipshape. Let’s talk 877-289-1017 or visit our website.


Jay Moran is a Consultant at Riverbend Consulting. He is a strong advocate for the sellers and goes above and beyond to use his skills to help in every way he can. Jay has experience in Amazon Seller Support/FBA as well as the Amazon Account Health Team. He worked with sellers to assist them in understanding the metrics and policies related to their Account Health as well as assisting them with reinstatement.

Filed Under: Account Appeal, Account Health, Amazon, ASIN, Attorney, Customer Serivce, General Tagged With: Amazon, Amazon seller, Attorney, Copyright, Deactivated, Deactivation, Intellectual property, Inventory, IP violations, Lawyer, Mediation, Mobile-ready, PDPs, POA, Product detail pages, Reactivated, Suspended, Suspension

The other side of IP complaints against Amazon sellers

October 28, 2019 Leave a Comment

Many brands are clueless about the damage they do with IP complaints and fake claims

By: Lesley Hensell

The number of account suspensions for alleged intellectual property (IP) violations on Amazon continues to skyrocket. There are several reasons this is so. But perhaps one of the most disturbing of these is a complete lack of understanding by brands that they are destroying small businesses. Last week, a lawyer called me. He wanted to discuss a pending lawsuit between a past client I worked with and a brand that helped get them suspended from Amazon. As we discussed the issues in the case, I found myself being sucked into a vortex of nonsense.
The lawyer laughed. “It’s insane,” he said. “What makes a seller think they can win this kind of lawsuit against a brand?” This attorney truly believes what he was saying. His client agrees. And in my opinion, they couldn’t be more wrong.

Anatomy of a lawsuit

For the purposes of this blog, let’s call my past client Acme. Acme was a pretty good-sized seller. In addition, he had quite a few IP complaints in his scorecard, mostly for trademark infringement. In my view, these IP complaints were likely all false and an attempt by the brand owner to control distribution. My client did not sell fake goods, nor did he list on the wrong ASIN. He had high-quality sourcing.
My client listed a product we shall call Supplement. He purchased Supplement from a large distributor. The product was real, with a perfect chain of custody.
One day, the maker of Supplement received a phone call or email to their customer care department. In this communication, a buyer stated they received an expired unit of Supplement that they purchased from someone on Amazon. This buyer did not give the name of the Amazon seller who sold the expired product to them.
The maker of Supplement had brand registry. They logged into their brand registry account and promptly reported every single seller of Supplement for IP infringement/counterfeit. My client was one of those sellers, and his account was deactivated by Amazon.

The seller fights back

Ultimately, Acme was reactivated. The company is now actively selling on Amazon. But they lost significant sales on Amazon during their suspension. Acme decided to sue the brand owner of Supplement for:
  • Tortious interference. Essentially, this claim asserts that the brand owner wrongly and intentionally interfered in the business relationship between Amazon and Acme.
  • Slander. By stating that Acme was selling counterfeit merchandise, the brand owner slandered the company as a lawbreaker and someone whom nobody should engage in business with.
Here’s where the lawyer’s dismissive comments enter the picture. The attorney for Supplement brand said the entire lawsuit was ridiculous on its face and would never result in an award for Acme.
During our conversation, I pushed back.
“You do realize counterfeiting merchandise is a crime,” I said. “If Supplement had filed an IP claim for trademark or copyright infringement, that claim wouldn’t have been true, either. But calling the product counterfeit raises this to an entirely new level. It was unethical, wrong and puts Acme at risk.”
The lawyer disagreed and then blamed Amazon, rather than his client.
“Supplement had no idea that something like this could happen,” he claimed. “They were just trying to stop the problem.”

Amazon’s culpability

And there, my friend, is where Amazon’s blame lies in all this. Because the platform must enforce IP complaints, it has erred on the side of ease for brands. Simply report a problem, and the listing is closed.
Unfortunately, many brand owners don’t seem to comprehend the seriousness of making false reports. And these reports are made – in abundance – every day:
  • Brands trying to control distribution lie about IP violations
  • Brands concerned about product quality report all sellers on a listing instead of pinpointing bad actors
  • Brands rely on lawyers or services to report “bad actor” sellers on their listings, which often results in authorized sellers being reported as well
  • Brands don’t recognize storefront names of their authorized sellers and report them
  • Brands don’t bother conducting test buys and just call everything “counterfeit”
At the same time, many brand owners honestly don’t understand how enforcement works at Amazon. They likely believe – like Supplement – that their report will only result in a single ASIN being blocked in a seller’s account. They don’t realize that false reports could result in account suspension, permanent closure, destruction of inventory and permanent holding of funds by Amazon.
Should brands have control over their products on Amazon? Brands definitely have cause for concern when their products are counterfeited, sold past expiration dates, sold in terrible condition, bundled in strange combinations, etc. All of these circumstances damage brand equity and dilute value.
But at the same time, making false claims of criminal behavior is problematic. And at least a few companies like Acme are going to see if they can help the IP pendulum swing the other way.
Concerned about your account, no matter the size, we can help put your mind at ease. Call Riverbend Consulting at 877-289-1017

Filed Under: 3P, Account Health, Amazon, General Tagged With: 3P, 3P seller, Account Suspended, Amazon, Amazon FBA, Amazon seller, Amazon vendor, Appeal, Brand, Brand registry, Copyright, Counterfeit, Deactivated, Guru, Intellectual property, IP, Patent, QPD, Shipment, Suspension, Trademark, Warehouse

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