New Way for Brands and Private Label Sellers to Protect Their Rights Online
When Brand Registry 2.0 was announced by Amazon, I told my team “brace yourselves.” I fully expected it to be a cluster. We staffed up. There were/are honest mistakes on both sides of the infringement problem. I just couldn’t conceive, however, of just how bad it was going to be for sellers and brands.
We’ve seen it all at eGP – rogue brands, rogue sellers, counterfeiters, black hat (the takedown company might not even own the intellectual property they are filing on!), IP “tricks” where a company’s IP is stolen…it’s awful.
For the first nine months or so, Amazon let brands get away with anything. Honest sellers were losing their listings, accounts and livelihoods to brands who refused to talk to them and who were making bogus complaints simply because they wanted to enforce MAP or get rid of unauthorized sellers…even when the products were bought from authorized sources.
Then the pendulum swung back, and Amazon finally heard what sellers had been telling them about brands who wouldn’t answer their emails, brands who refused to send retractions even though the seller was buying directly from them or an authorized distributor. Then Amazon started restricting brands’ rights through Brand Registry. Almost any seller could claim “bogus!” and the brand would lose their rights to enforce even though the enforcement was legitimate.
Even more frustrating, the bad actor sellers kept getting away with it. One account would be suspended and another one would pop right back up the next day selling the same counterfeit product. The one problem Brand Registry was supposed to fix was still broken.
The pendulum has been swinging back and forth ever since and it’s a hot mess for both brands and honest sellers.
Brands often don’t understand the consequences of taking down hundreds of sellers at once, for example. Suddenly the brand is besieged by dozens to hundreds of anxious, angry sellers all trying to get retractions. Frequently the brands often just want sellers off the listing and are surprised and troubled to find out these sellers are losing their livelihoods in some cases.
Additionally, some of these sellers will tell Amazon that the takedown was bogus (even if it wasn’t) and try to get Amazon to take away the brand’s right to enforce. Not answering sellers who email requesting a retraction is not a good option (anymore) because Amazon will take a dim view of that.
Sellers are sometimes shocked to realize that they are infringing on a rights owner’s trademark. They simply were selling their products under an existing listing. They assumed that if the listing was live on the platform, it was OK to sell that product. There was no ill intent, but they were still culpable. Sellers who were focused on buying inventory and making sales suddenly were responsible for understanding intellectual property (IP) law or face very steep financial consequences.
Furthermore, depending on what a brand is trying to achieve with the takedown, it may actually want to let some sellers back in but not others. For example, a brand may decide to let back on the platform those sellers who have bought from legitimate sources. Others want to take down sellers, not because of infringement, but for reasons like beefing up their channel strategy, selling direct or enforcing MAP (minimum advertised price) contracts.
Retractions of brand takedowns can be painful too. Often a rights owner sends a retraction that Amazon rejects. That usually happens because they don’t know exactly what Amazon needs to see in the retraction. It’s not as simple as it sounds.
They may put too many details in their retraction letters, or they add conditions or other information that Amazon does not allow. In a retraction letter, you state that you’re reversing a takedown and why you are doing so. You must acknowledge that it was your mistake in some way. Many of our brand clients are unwilling to say that because they don’t feel that they made a mistake, or their lawyer won’t let them say it.
Throughout this frustrating process, we have provided support to our brand and PL clients to help them manage the administrative side of online sales platform brand protection. We keep track of the sellers, retractions and final outcomes. It’s manual, it’s time-consuming, and it’s a lot of work for everyone involved.
We also consult with rights owners about the right way to take down an infringing seller, how to use Brand Registry properly, how to get what they want without hurting honest sellers and how using Brand Registry should not be the first option in most cases. For many who are having distribution channel issues or MAP issues, we help them fix their channel rather than inflict damage on sellers who are not responsible for a brand’s ineffective channel management. If the problem can be fixed at the source, then there is no need to take down sellers to get what they want.
For the genuinely infringing bad actor who is selling counterfeit or stolen goods, and who keeps popping up over and over again under another name, we help our brands conduct targeted takedowns and explore other more permanent options like Amazon’s Transparency program (now part of Project Zero), or getting a partial block on their listings against newly launched sellers. Some brands qualify for Amazon’s Exclusives program, which acts as a backdoor brand block against other sellers being able to list on their listings. We’ve helped them get bad actor seller details (real name, address, etc.) from Amazon so they can pursue legal actions.
There is no one silver bullet or perfect solution, but we try to help our clients find a solution that works for them and is compliant. Brand Registry today either doesn’t work or is horribly abused.
A New Approach
We have searched years for a better way. We are seller advocates…but Private Label and other brand owners are sellers too. We wanted to find a way to protect honest sellers while providing relief to brands who are suffering horribly from trademark, copyright, patent and counterfeit infringement issues. Finally, we put together a solution ourselves.
eGrowth Brand Enforcer™ combines software in the cloud with consulting and support services from eGrowth Partners. The software offers an elegant, clear dashboard that can track thousands of sellers across 100+ online platforms worldwide. The process is fully compliant with Amazon’s rules and protects sellers from unnecessary or just plain wrong takedowns.
It is effective because it allows sellers an easy way to provide proof that their items are authentic without taking them down first. They can upload their retail receipts or invoices, they are noted as authentic by the system, and they are left alone. The seller can keep selling.
If the seller is buying from an authorized distributor and the brand isn’t happy about it, they can go take up their grievance with the distributor who is violating their contract with the brand. As the brand plugs the holes in their distribution channel it might mean that sellers can no longer buy inventory from the supplier, but at least they can sell out of their current inventory and their livelihoods are not threatened. They are not violating a contract; they shouldn’t be punished.
Naturally not all sellers will respond. In which case there are several other steps in the process including getting the real names and addresses of the sellers from Amazon. This is a lot easier than I thought it would be. At that point, the brand can send a cease and desist to the handful of stubborn resisters. The last step is legal action. By that time, the software and our process have created a strong legal case for the brand that shows every step that was taken by the rights owner to protect its brand.
One other important point. Although Amazon is our primary platform focus, this tool works for 100+ retail platforms worldwide. There’s a lot of counterfeit activity on Alibaba, eBay and even Walmart.
If you want to know more about your particular situation, we are offering all of our clients a free scan of their brand on Amazon so that we can tell you exactly what’s going on.
Less Expensive IP Enforcement
Almost any established brand on Amazon or elsewhere can afford this service. It’s much less expensive than going with a law firm. Hiring a lawyer often means paying not only for the lawyer but also for a paralegal billing lots of hours to manage the entire takedown/retraction process.
It all adds up fast. Brands can spend tens of thousands of dollars a month or more just trying to keep up with what’s happening with their online sales listings.
But with eGrowth Brand Enforcer™, you won’t need the lawyers and the paralegal to do this manual, highly administrative work of tracking and managing what could potentially turn into hundreds to thousands of takedowns at a time.
Now I am not saying you won’t ever need an IP lawyer. You will, especially if you’re going to be writing cease-and-desist letters, or if you’re going to sue people, or if you’re going to be writing contracts for your distributors or enforcing a contract. You’re going to need a good IP/business lawyer for all of that. If you also need to subpoena Amazon for real seller names and addresses, that requires an attorney.
We have several IP attorneys that we recommend. We do not make referral fees or anything else from our attorney suggestions. We’ve seen these guys in action for our clients over the past few years and know they have the right stuff. They understand Amazon, IP law, business law and federal lawsuits. Their results speak for themselves.
Make Amazon a Fair Platform Again
OK. You’re laughing. I get it. However, our company’s mission is to help sellers, and most sellers – brand or not – want selling to be fair. Right now everything seems stacked against them. Readers of this blog know that I talk about dirty seller tricks a lot. Brand registry and bogus takedowns are a particularly harmful tactic used by bad actors. Selling counterfeit is a crime. Amazon cannot seem to get a handle on the problem. Each new program brings hope and chaos.
That’s why ongoing consulting is such a vital part of our service offering. We help our clients detect and protect themselves from bad actors. We help them clean up their distribution channels without resorting to illegal or unethical acts. We help them determine if they also need Project Zero or other Amazon programs for a complete solution. With eGrowth Brand Enforcer™ our goal is to make the system fair and more like Amazon intended – a tool for legitimate complaints without punishing honest sellers. Most importantly, we want to reduce the stress on all sellers and reduce the cost of brand enforcement.
Right now we are only offering eGrowth Brand Enforcer™ to current account management clients, but we will be launching this service to the broader community later this year.
We will reach out to you as soon as we’re ready. You can also talk to our team about becoming an account management client.
Another important point about eGrowth Brand Enforcer™, it is live and working well. It is not in a test phase. The results we’ve seen are amazing. Brands are seeing immediate impact in the first few weeks. We’re offering it to our clients first because we want to make sure that we can take care of them before expanding to the larger community.
It is a great leveler. It allows smaller or newer brands to enforce their rights in a cost-effective way on Amazon and other platforms where others are selling their product. It gives them the same types of results that the big brands obtain with their teams of lawyers.
The Battle Hymn of the Amazon Republic…
Even when you think an infringement problem is over, it’s not over– ever. Bad actors just keep on coming. For this reason, eGrowth Brand Enforcer™ is also an alert system. It detects when new players come on to your listings so they can be reviewed/handled quickly. Many newer rights owners don’t know that if you do not enforce your rights consistently or only enforce them selectively, you can lose your rights regardless of your USPTO filing. Getting a trademark or patent is only the beginning.
We’re super-excited to offer eGrowth Brand Enforcer™ to the community. It’s compliant with Amazon TOS, it automates an incredibly complex issue, it saves time, it stamps out counterfeit, trademark, copyright and patent infringement offenders, it’s cost-effective, it allows brands to enforce their rights without hurting honest sellers, and it brings sanity back.
The Elephant in the Room
I am a mind reader, and I’m guessing right now you are thinking, “how can they represent both brands and sellers? What if they end up taking down their own clients?” We are and always will be seller advocates. As I noted previously, brands and PL sellers are sellers, too. I see the pain on both sides when the system is broken and abused. It was/is extremely important to me in putting this solution together that we provide a new approach to brand enforcement that is effective and fair.
There will be brands that come to us who will not be a good fit because they are not going to follow our process, or they don’t actually own the intellectual property they want to enforce on, or they stole someone else’s IP, or they look at brand enforcement as a weapon they can wield with impunity rather than a shield to protect all their hard work.
Our internal onboarding process for eGrowth Brand Enforcer™ includes this checklist:
- Verify our client’s IP and claims
- Confirm they are willing to follow our approach
- Determine if they are willing to do the work of cleaning up their distribution channel (if that’s part of the problem) off platform
- Check that they make honest test buys in suspected counterfeit cases
- Investigate how the company did brand enforcement previously
- Client conflict check
In short, we are here to help honest brands and honest sellers. We won’t work with brands that don’t appreciate our approach or that have bad intentions. We already turn those guys away. It is possible that in the future we will find ourselves inadvertently in the middle of a dispute between two clients, and we will recuse ourselves if necessary. The whole point of our service is to avoid hurting honest sellers. If done correctly, the most an honest seller will be asked to do is provide their receipt or invoice. There will be no heavy-handed tactics.
HOW CAN WE HELP YOU?
We are known for helping suspended sellers get reinstated, but our goal is to keep sellers from being suspended in the first place. We have more than 25 team members passionately working 7 days a week to protect Amazon sellers like you.
Contact us for specific advice on your situation:
- Next speaking engagement – IRCE in June: Come meet Cynthia Stine in Chicago this summer: IRCE 2019 (June 25-28, McCormick Place, Chicago. Register here )
- Upcoming speaking engagement – Relentless Women Virtual Conference, from June 18-20. Relentless Woman is a 3-day virtual event with over 20 female e-commerce experts, including Cynthia Stine, and online business professionals sharing their experiences with you and teaching you how to launch, grow, manage, and protect your own online business. Learn more about the event and register here.
- Future speaking engagement — ecom Chicago. Cynthia returns to Chicago in October (October 16-18, Elk Grove Village, IL).
- Starting on June 10th, inventory that is stranded for an extended period will be classified as unsellable and MUST be removed from Amazon fulfillment centers. Keep an eye on your stranded inventory!
- eGrowthPartners and Online Merchants Group have the opportunity to work together now and then, and I thought I’d share a video OMG produced about online selling and sales tax on their Facebook page. Like their page as well – they fight for sellers! Click HERE
- Attn: apparel brands! This month Amazon is removing its generic size charts from all listings and making each brand create their own. This is designed to reduce size-related returns so take this seriously.
Our new Facebook Group Amazon Seller Advocates just passed 575 members! Join us for discussions of all things affecting Amazon sellers. Understand the context behind news announcements, changes to TOS and more! JOIN US!