Should I Trademark My Amazon Brand?
What is the Amazon Brand Registry?
Disclaimer: This post arguably constitutes legal advice and in a way I am your lawyer now. At the end of this post, I will no longer be your lawyer, unless I already was before.
Amazon has recently changed its standards for becoming a member of their Brand Registry, which is the main resource Amazon sellers have for stopping people who counterfeit and infringe on their brands. In part because of these changes, I’ve been getting so many clients who sell on Amazon in the past few months that I’ve decided to make it a major part of my trademark filing practice.
Unfortunately, Amazon has made it much harder to get on their Brand Registry and stop other sellers from stealing your brand name. The roughest thing about it is that Amazon only seems to recognize trademarks that are fully registered, and not ones that are still in the process of being registered. The smallest amount of time you can hope for between filing of the application and registration of the trademark is eight months, and that’s when everything goes right.
Further, Amazon isn’t accepting logos and stylized trademarks. (Nov 7 2017 UPDATE: Amazon has loosened its requirements and now also accepts stylized words as well as logos as long as they have the wording of the brand name in them.) According to Amazon, “the Mark Drawing Type must be equal to ‘4 – STANDARD CHARACTER MARK’ or ‘1 – TYPESET WORD(S)/LETTER(S)/NUMBER(S).” So anybody who has a registered logo trademark, even if the logo has the name of the brand in it, is ineligible for the Brand Registry.
Is it worth going through the whole trademarking process?
It’s definitely worth it for Amazon sellers to file trademark applications for their brands. Having the power to kick counterfeiters and infringers off of Amazon is massive, and arguably essential, for an Amazon seller. I’ve even had a couple of clients who are in the unfortunate position of having to fight a counterfeiter or brand infringer who filed a USPTO trademark application before the legitimate seller filed their own. Now they are mired in long-term legal struggles just to have the right to use their own brand name.
Even without the Amazon Brand Registry, trademarking your brand name is essential.
Registering a trademark in the U.S. (and getting a legal opinion on your brand name from a U.S. trademark attorney) should be a priority for any business that sells products to U.S. consumers, regardless of whether they sell goods on Amazon. The following benefits justify the cost of securing any ecommerce/retail company’s U.S. trademark rights:
1. You eliminate the risk of somebody else filing a U.S. trademark application for your name or a similar name in your industry before you do, a problem that would severely limit, if not destroy, your ability to sell products to U.S. consumers. You would also likely be booted from the U.S. Amazon Brand Registry, even if you have a registered trademark in a different country.
2. You are more likely to avoid receiving a cease-and-desist letter out of the blue from an existing company with a similar name, pressuring you to lawyer up and possibly forcing you to change your brand name.
3. It makes your company more valuable as an asset if you’re interested in selling the company and exiting with a large payout.
4. Retail stores prefer to work with companies that have strong trademark rights established. Costco, for instance, insisted that a liquor company I worked with give Costco evidence that their trademark rights were in order before their product could go on shelves.
5. Having a U.S. trademark registration is the closest thing to owning an “international trademark” that a company can achieve; the United States is the world’s great cultural and economic hegemonic power.
Just get your trademark rights in order already.
So yes, if you sell products on Amazon, you should trademark your brand. The sooner a seller files an application, the better, before a Chinese-owned LLC registered in Wyoming files one first. I’m biased, but I recommend hiring JPG Legal (my law firm), using our online form, to do this.
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