Amazon Trademark Infringement
Since 2016, Amazon has been the top ecommerce website in the country. The platform is an invaluable tool many companies use to build brand awareness and distribute their products. Ignoring Amazon’s omnipresent is a bad business move, as 9 out of 10 consumers price check an item on the website before purchasing. Amazon sales account for 5% of retail spent in the United States.
With over 12 million products being sold, it’s inevitable that trademark issues will frequently arise. Fortunately, Amazon has certain practices in place to ensure that trademark owners will be able to effectively protect their rights.
Company owners should be well informed about the policies to protect trademark owners, and the procedure to follow should they find themselves the victim of trademark infringement.
What is a Trademark?
A trademark is a word, phrase, symbol, and/or design that is used to identify and distinguish the sources of goods and services. A trademark is only entitled for protection if it is in current use in commerce.
Trademarks can be federally registered with the United States Patent and Trademark Office (USPTO). Unregistered trademarks are still entitled to protection under common law trademark rights. However, these rights typically only extend locally and are difficult to enforce on a site like Amazon.
Registering with the USPTO involves completing an application and paying an application fee. The USPTO recommends that you have a trademark attorney handle the application process for you, as many trademark applications are rejected automatically for incorrect or missing information. Once you have achieved the registration, you will have presumption of ownership nationwide. This means that you have exclusive rights to use the trademark.
Registering with the USPTO should be a top priority for any business, as it makes the task of protecting your trademark much easier in the long run.
What is Trademark Infringement?
In trademark lawsuits, the main matter determined by the courts is the issue of likelihood of confusion. If consumers are likely to be confused about the source of the products, the trademarks will likely be in conflict and the junior user will generally have to cease use. This is meant to protect both consumers and the businesses. It enables the consumer to make informed purchasing decisions, and protects the trademark owner from unlawful usage of their trademark.
What is an Amazon Trademark Attorney?
An Amazon Trademark attorney can help you with all matters related to protecting your trademark on Amazon. Amazon is constantly shifting and altering its rules on brand registration and seller requirements, so many users seek assistance from trademark lawyers to handle infringement cases on both sides.
The Amazon Brand Registry
One way to be proactive about monitoring your brand on Amazon is to register on the site’s Brand Registry. You can only register with the Brand Registry if your trademark is registered with the USPTO. In order to register, you will need to provide proof of federal registration. The Registry cannot currently be used to protect common law trademarks, or trademarks made up entirely of images.
After a seller signs up with the Registry, they have access to proprietary information and image search tools which allow them to closely monitor their brand. The seller can also view listings filtered by keyword searches and Amazon Standard Identification Numbers (ASINs). If a seller spots an infringement, they can report it to Amazon via the Registry. It is recommended that you have a trademark attorney assist you in cases of infringement on Amazon. Amazon has been known to ban sellers if they make a mistake in the process of reporting an infringement. They have also been known to ignore claims if they are not made by a lawyer.
Once you have successfully registered with the Amazon Brand Registry, you may be eligible for further protection with the Amazon Brand Gating Program. However, Brand Registry has become increasingly difficult to achieve since it appears that Amazon may look for sales in the $20 million range.
This program was created in order to prevent counterfeiters or unauthorized users from selling new products from protected brands. If you register with the Brand Gating program, you will have exclusive rights to list the protected items on Amazon.
In order to successfully “gate” your brand, you will need to demonstrate that you take the protection of your brand seriously, and preferably have dealt with counterfeit issues in the past. This is because Amazon gives priority to trademark owners who have already had problems with counterfeiters. You will also be required to provide a list of the ASINs of the products that you wish to be protected under the umbrella of the Branding Gating Program.
Because Amazon tends to favor requests made by attorneys, it’s smart to have a trademark attorney handle this process for you. The application may take a couple months to process.
Protecting an Unregistered Trademark on Amazon
Because the Brand Registry requires trademarks to be registered with the USPTO, it can be difficult to protect an unregistered trademark, or a trademark that is pending registration. But unregistered trademark owners can still enforce their rights, even if Amazon makes it a little more difficult.
The best way to establish your common law trademarks is to keep detailed records, with dates, of your usage of the trademark. This should include your advertisements, your authorized sellers, your suppliers, and your sales. You should also use the common law trademark symbol (™) prominently with your trademark, to demonstrate that you are claiming the word, phrase, or logo as a trademark. Once you have successfully registered your trademark with the USPTO, you can start to use the registered trademark symbol (®).
The best option in handling infringements of common law trademarks is likely to start by sending a cease and desist letter to the infringer.
Trademark Infringement on Amazon
Trademark infringement on Amazon can take many forms. Here are the common ways that trademark infringement occurs on the site.
- Misuse of Amazon Standard Identification Number (ASIN): ASINs are 10 character identifiers assigned to products on Amazon. Sellers on Amazon will sometimes use the incorrect ASIN to tag their products. If they are using your ASIN to market an inferior product, customers might believe the item is coming from your business. This could take a toll on your reputation as well as your reviews and profits.
- Unauthorized usage of your trademark name or logo: Unscrupulous sellers might attempt to confuse consumers into believing their products are coming from your business. They might attempt to make their products look like yours, or use your trademark name in their product descriptions.
- Confusingly similar trademarks: Some sellers might create products with a trademark that is so similar to your own that it creates confusion among consumers. This could result in low ratings in your product reviews, and a loss of faith in the quality of your products.
Maintaining trust with your consumers is essential to the success of any business. You risk losing that if you are not diligent about protecting your trademark on Amazon.
Reporting Trademark Infringement on Amazon
If you spot a trademark infringement on Amazon, you can report it to Amazon directly. Unfortunately, Amazon can be slow to respond, and reporting the matter may not be enough to get the infringing activity to cease.
Regardless, for any infringement we suggest that you have us send a cease and desist letter. A trademark cease and desist letter informs the infringing party of your rights, and warns that you will take legal action if the unauthorized usage of your trademark does not cease. Trademark cease and desist letters should be sent by a trademark lawyer, rather than the owner of the trademark. Cease and desist letters sent by the trademark owner are often not effective in eliciting the desired response.
If your cease and desist letter is ignored, filing a lawsuit may be the next step, so you should be sure the cease and desist letter is handled by a trademark attorney so it is taken seriously.
Responding to a Trademark Infringement Claim
You might find yourself on the receiving end of a trademark infringement claim on Amazon. These claims should always be taken seriously, as they can escalate to full blown lawsuits or being banned from Amazon.
If somebody claims that you are infringing on a trademark, Amazon will notify you and remove the offending products from the site. You will be informed about the nature of the complaint against you. If you believe that you are well within your rights to sell the product on the site, you should consult with a trademark lawyer about your options moving forward. A good trademark lawyer will review the claim and help you determine the strength of your case.
The Importance of Protecting Your Trademark
Monitoring the usage of a trademark falls on the shoulders of the trademark owner, and the trademark owner alone. In addition to monitoring your brand on Amazon, you will also want to ensure that your company is protected on other platforms.
Fortunately, many legal services and trademark attorneys offer trademark watch protection. When you sign up for a trademark watch, you will receive regular reports monitoring the usage of your trademark. This way, you can be informed promptly of any infringing activity, and respond swiftly with a cease and desist letter.
Trademark owners who are not aggressive about defending their trademark on Amazon suffer damages to their company’s reputation and the ultimate value of the brand. Responding quickly to infringement will send a message to other potential infringing parties that you take the protection of your brand seriously.