Does your company sell or intends to sell products on Amazon? Are you worried that Amazon knockoffs are stealing your business? Or, maybe, someone accused your Amazon listing of patent or trademark infringement? If any of these questions concern you, we are here to help. Amazon Brand Registry, Amazon Project Zero, and Amazon Neutral Patent Evaluation Program are powerful tools that can either boost or destroy your business. Having a good trademark and patent attorney in your corner can make all the difference.
Amazon’s IP Policy Explained
Amazon understands that intellectual property (IP) assets–i.e., trademarks and patents–are powerful tools for building successful businesses. For this reason, Amazon provides several important programs to help its sellers enforce their IP rights. On the trademark front, Amazon Brand Registry and Amazon Project Zero enable sellers to fight counterfeiters and trademark infringers. On the patent side, Amazon’s Neutral Patent Evaluation Program gives patent owners the power to quickly shut down patent infringers. If you are not using these tools to grow your business, you are behind the curve.
Why Amazon wants its sellers to invest in IP?
To understand Amazon’s intellectual property policy, it is important to remember that the cornerstone of Amazon’s success is consumer trust. When a consumer purchases what she believes to be a branded product, but receives a counterfeit, trust erodes. After all, no one likes to feel duped. Next time, the deceived consumer will likely shop at a big-name retailer or purchase directly from the manufacturer, rather than Amazon. Losing customers is bad for business. Amazon knows this and, therefore, takes trademark infringement seriously.
Amazon Supports Trademark Rights
Furthermore, Amazon has a symbiotic relationship with its sellers, meaning that when your Amazon product sells well, Amazon makes money. Amazon knows that no one wants to purchase a product from a random company they don’t recognize. For this reason, Amazon wants its sellers to build successful and reputable brands. Brand loyalty is key to reinforcing consumer trust and increasing sales. For all these reasons, Amazon stands behind its sellers who have invested into federally registered trademarks. Amazon Brand Registry and Amazon Project Zero enable trademark owners to take down Amazon listings that freeride on their hard-earned branding success.
Buyers Prefer Patented Products
Finally, Amazon knows that its shoppers love patented products. Indeed, consumers perceive patented products as high-quality, innovative, and reliable. It is no secret that patents can boost sales and build consumer trust. Therefore, to encourage more patented products in its marketplace, Amazon allows patent owners to permanently shut down infringing listings, at no cost. This process is called Neutral Patent Evaluation Program, and it is an absolute gamechanger.
Amazon Trademark Infringement
Every business has a trademark. For example, the name of your company, the names of your products, and your logos are all trademarks. Your trademarks are your property. As your business grows and consumers begin to recognize your brand, your competitors will look for ways to freeride off your hard work by using your trademarks to steer your customers toward their own products. Good news is that Amazon gives its sellers all necessary tools to shut down such deceitful listings. However, if you have not taken the necessary steps to protect your trademarks, it’s your fault, and Amazon won’t do anything to help you.
First step: Apply for federal trademark registration
When you start a new business, you have an exciting task of coming up with a name. This is the best time to contact your IP attorney. Before you commit to a name, your IP attorney will let you know whether the name you selected can function as a source identifier for your customers. We have a whole article dedicated to this subject.
Once you have an attorney-approved name, it’s time to apply for federal trademark registration. The federal registration gives your business many important benefits (we also wrote an article on that subject). The bottom line is that every entrepreneur serious about his or her business should secure federal trademark registration for the business name. When it comes to applying for the federal registration, stay away from the DIY internet advice and trust an experienced trademark attorney to handle the application process. After all, your brand is at stake. Investing into marketing without having a federal trademark registration, is like building a sand castle on the beach–sooner or later, everything can wash away.
Second step: Enroll your trademarks into Amazon Brand Registry
When you file a federal trademark application, it gets assigned to a trademark examiner at the United States Patent and Trademark Office. If everything is done correctly, the examination process generally takes about 6 to 9 months. After the USPTO issues your federal trademark registration certificate, you can enroll your federally registered trademark into Amazon Brand Registry. The process is simple and self-explanatory.
Enrolling your trademarks into Amazon Brand Registry gives you access to several important tools. Indeed, Amazon provides VIP treatment to its Brand Registry sellers. First and foremost, enrollment in Brand Registry grants you the power to report Amazon listings that inappropriately use your trademark. Amazon will investigate each report and will require the violators to remove your trademarks and logos from their listings. Amazon has a special dedicated online portal for reporting trademark infringement, but it is only available to those enrolled in the Amazon Brand Registry.
Second, Amazon grants the Brand Registry members access to its powerful search and reporting tools. These tools enable you to efficiently identify listings that may be infringing your trademark and immediately report them to Amazon. Furthermore, Amazon will use its AI algorithms to proactively identify and remove infringing listings, even without your involvement. VIP service indeed.
Third step: Level up to Amazon Project Zero
In 2020, Amazon launched its most powerful counter-infringement program to date: Amazon Project Zero. Membership in the Project Zero is extremely exclusive. Project Zero gives you the power to unilaterally take down the infringing listings. This means that Amazon Project Zero members do not need to report trademark infringers to Amazon, instead, these elite trademark owners can take down the infringing listings themselves. This power to conclusively strike trademark infringement at the root is unprecedented.
Amazon grants membership to the Project Zero on a case-by-case basis. To apply, your federally registered trademark must be enrolled in the Amazon Brand Registry for at least 6 months. Furthermore, to be eligible for Project Zero membership, you must establish a solid track record of actively and accurately reporting infringing listings. Amazon requires that at least 90% of the listings you reported in the last 6 months, must indeed be infringing. Thus, frivolous or inaccurate trademark infringement reports will harm your chances of becoming a Project Zero member. Our advice: consult an experienced trademark attorney before you report suspected trademark infringement to Amazon.
The cherry on top: Amazon Brand Registry and Amazon Project Zero do not cost anything. Thus, if your business is not taking advantage of these programs, you are doing it wrong.
Amazon Patent Infringement
Now that we have covered Amazon trademark infringement, let’s switch gears to the patent infringement side. In 2019, Amazon launched Amazon Neutral Patent Evaluation Program to combat rampant patent infringement on its marketplace. This program allows patent owners to shut down listings that infringe even a single patent claim. The program is extremely efficient and effective. Traditional patent litigation can last years and cost millions of dollars in legal and expert fees. In contrast, Amazon Neutral Patent Evaluation Program limits each side to 20 pages of legal arguments and conclusively resolves a patent infringement dispute in under two months.
First step: Patent your products
If your business model is to simply import existing products and then resell them on Amazon, patents can’t help you. On the other hand, if your company designs or engineers its own products, you need to immediately consult a patent attorney. Failure to timely patent your products is a mistake that can cost you your business. In a free-market economy, a patent is the strongest–and, often, the only–weapon against an opportunistic competitor who steals your innovation.
Contrary to a common misconception, to obtain a patent, you do not need to engineer a product from the ground up. Instead, a single commercially meaningful innovative improvement that differentiates your product from the competition could be a basis for a strong patent. Just because patent law is complex, it does not have to be intimidating. Find a good patent attorney you trust and speak to him or her every time your team redesigns or improves one your products. As we said earlier, Amazon loves patents and so do its customers. A solid patent portfolio can help you boost sales, while shielding your products against opportunistic copycats. Win-win.
Second step: Enforce your patent rights
As we already mentioned, traditional patent litigation is cost-prohibitive for many businesses. Furthermore, effectively enforcing a U.S. patent against a foreign company can be next to impossible. Knowing this, opportunists from abroad flood the Amazon marketplace with Chinese copies of the U.S. patented products. Sounds unfair? It is.
Amazon decided to end this injustice once and for all by taking the patent enforcement process into its own hands. Amazon’s Neutral Patent Evaluation Process is an extremely efficient and cost-effective route for U.S. patent holders to conclusively shut down illegitimate Amazon listings. Therefore, if you suspect that a product sold on Amazon infringes your patent, you should immediately contact your patent attorney. Amazon firmly stands behind patent holders and their businesses, but Amazon cannot protect you if you don’t enforce your rights.
Amazon Neutral Patent Evaluation explained
First, to trigger the Amazon Neutral Patent Evaluation process, patent owner’s patent attorney must contact Amazon’s patent infringement department. The initial communication must identify the patent number, the infringed claim, and the infringing listing. Next, Amazon carefully reviews the patent infringement allegations. If everything checks out, Amazon sends a Neutral Patent Evaluation Agreement to the patent owner and the accused infringing seller.
Failure to respond = Loss
After Amazon sends out the Neutral Patent Evaluation Agreement, the accused seller has 21 days to accept. Acceptance is not optional. If the accused seller does not timely respond or does not agree to participate in the Neutral Patent Evaluation Process, Amazon will permanently shut down the accused listing.
Therefore, timing is critical. Accordingly, if someone accuses your Amazon listing of patent infringement, contact an attorney immediately. Ignoring patent infringement allegations is a fatal mistake. If the accused infringer fails to formally accept the agreement within the specified time period, it’s game over. After Amazon removes the accused listing, there is no way to bring it back.
The winner takes all
If the accused infringer accepts the Neutral Patent Evaluation Agreement, the process advances into the next stage. At this point, both the patent owner and the accused seller must wire $4,000 to the Amazon evaluator. To make the process fair, Amazon selects an impartial, experienced patent attorney to decide the case. In the end, the evaluator returns the $4,000 to the winner, but keeps the $4,000 deposited by the loser. Furthermore, if the patent owner wins, Amazon permanently shuts down the infringing listing. However, if the accused infringer prevails, the accused listing will remain on Amazon.
Don’t bring a knife to a gun fight
Each side has an opportunity to present its case. The patent owner gets the first and the last words. To prevail, the patent owner must establish that the accused product embodies each and every element of the asserted patent claim. On the other hand, the accused seller’s task is to prove that at least one of the claimed elements is missing. It is very important to note, that Amazon does not permit any other substantive arguments. Significantly, the accused seller cannot argue that the asserted patent claim is invalid. For this reason, Amazon Neutral Patent Evaluation gives patent owners a huge advantage over traditional litigation.
As we explained in our recent Amazon success story, if one of the parties is not represented by a patent attorney, it is facing an uphill battle. Indeed, Amazon patent evaluators are patent attorneys themselves and expect to see patent attorney arguments. Therefore, a layman’s appeals to fairness and common sense will almost certainly fall on deaf ears. Accordingly, if you fail to invest in the services of a battle-proven, U.S. licensed patent attorney, you are setting your business up for a big loss.
We are here to help
Whether you are an entrepreneur starting a new company or an established enterprise, building a strong IP portfolio can propel your business to new heights, especially if you are selling products on Amazon. However, trademarks and patents are highly time-sensitive, and, sometimes, even a short delay can result in irreversible loss of IP rights. Thus, if you are serious about building a successful brand, be proactive. An ounce of prevention is worth a pound of cure.
Finally, if you believe that someone’s Amazon listing is infringing your trademark or patent rights, let us know. Amazon has your back, but only if you actively and properly assert your IP rights. Within the last few years, Amazon has taken unprecedented steps to give U.S. trademark and patent holders an upper hand over illegitimate competitors looking to freeride on another’s success. If you don’t take advantage of the programs that Amazon deployed to protect your hard-earned business, you have no one to blame but yourself.
Our solutions, expertise and experience allow us to provide the insight, intelligence and knowledge to assist your business to establish, maintain and enhance the competitive advantage that it deserves in today’s environment.