As many of us know based on direct experience, Amazon has made the buying and selling of nearly any item far easier than it has ever been. You may be, as many of my clients are, one of those individuals or businesses who has taken advantage of the ease through which Amazon allows sales to happen. If this is the case, there are issues of which you may want to be wary.
Many of my clients are people or businesses who have had to fight off counterfeiters, others copying their products, others copying their listings, and/or others attaching to their listings on Amazon. This has recently become quite a prevalent problem on Amazon and other similar sites. This is an ongoing and consistent problem and unfortunately there is no easy fix, but there are a few things you can do to better ensure this does not happen to you.
Make Amazon’s job easier and make the counterfeiters’ job tougher by taking the proper steps to protect your product before a counterfeiter gets to it. Although Amazon does have a department to review and respond to takedown notices, action taken after receipt of these notices is not as immediate as we might like. In my multiple experiences filing these complaints with Amazon, they have more often than not completely ignored or disregarded the reported violation unless it was backed with proof of a registered trademark, copyright, or a patent. Hint: register your intellectual property.
How to legally protect your intellectual property:
- Brand – If you have created your own brand, register it. Trademark registration allows you to prohibit another from using your trademark or a similar trademark that may cause consumer confusion. Register your brand with the US Patent & Trademark Office.
- Photos or artwork – Photos of your product are protectable by copyright. Make sure that you own the copyright in your photo or artwork and register it. This includes the photos of your product that you use in the listing. Copyrights are registered with the US Copyright Office.
- Patents – If your product contains a new invention it may be patentable or an aspect of it may be patentable. Consider patenting the invention to prevent others from selling, manufacturing, or advertising your invention. Patent applications are filed with the US Patent & Trademark Office.
- Amazon Brand Registry – Enrolling a brand in Amazon’s registry provides the brand owner with increased control over its product titles, details, images, and other attributes. Click Here for Amazon brand registry.
You can also make the counterfeiter’s job more difficult by making your listing unique:
- Prominently display your trademarked and registered brand on all your listings
- Create an added value to your listing (ex. if you are selling a workout product add a book of your top favorite exercises with the product)
- Create a package or series of products and include something inexpensive, but related just so your listing stands out
How to protect yourself from infringement claims:
For any business you should conduct a search for your brand name before you start using it. You can learn more about choosing a name for your brand or business here.
Briefly though, start with at least a google search and then a search of the USPTO. Of course, you should also do due diligence on the product you are going to be selling to ensure that you are not infringing on another’s work. Once you have chosen a name, it may be smart to obtain intellectual property insurance, as most commercial insurance policies will not cover intellectual property infringement.
If you are selling a product made by another, then you may want to ensure that you are not selling or offering for a sale a product that is the subject of a patent held by another. You can limit your risk by entering into an “indemnification and hold harmless” agreement with the person or entity from which you purchase the product . If you are purchasing your private labeled product from a manufacturer you should ask them about the product:
- is it covered by a patent?
- who designed it?
- who else do they sell the product to?
- do they have a license to sell it?
- how long have they been producing it?
- will they agree to indemnify you from infringement claims?
If you have questions about protecting your product on Amazon contact the Law Office of Jason H. Rosenblum, PLLC today to discuss the details first.
DISCLAIMER: The information contained in this article is for informational purposes only and is not legal advice or a substitute for obtaining legal advice from an attorney.
Law Office of Jason H. Rosenblum, PLLC © 2016 All rights reserved.