Do you need a trademark to sell on Amazon? Although you do not need a trademark registration to sell on Amazon, registration has many benefits.
Enrollment in the Amazon Brand Registry allows Amazon sellers to enforce their trademark rights on the platform.
Amazon first verifies with the trademark office that a trademark is legitimate.
Once verified, Amazon gives sellers enrolled in the Brand Registry access to special tools that allow them to monitor the site for unauthorized use of the Seller’s trademark. If the Seller identifies unauthorized use of the trademark, they can report it to Amazon.
Amazon will take action against trademark infringement by removing unauthorized listings and also reducing the reputational standing of the seller with the unauthorized listing.
Enrollment in the Amazon Brand Registry protects sellers against frivolous infringement claims from others.
The trademark registration creates a presumption in favor of the owner. The seller that is enrolled in the brand registry program is immune from notices of infringement filed by other sellers without integrity.
Ultimately, it helps protect buyers and sellers and the integrity of the platform as a marketplace.
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The Amazon Brand Registry has country-specific enrollment requirements.
In the United States, a trademark owner can enroll in the Amazon Brand Registry while a trademark application is pending.
Immediately after a trademark application is filed with the USPTO, an application serial number, referred to as an SN, is issued. The application may take a few days to appear on the trademark office website.
After it does appear, the trademark application serial number can be used for enrollment.
Amazon sends a unique code to the party listed as the USPTO “correspondent,” which is often the attorney of record. The code is used to authenticate that the Amazon Seller owns the trademark registration.
A trademark is no longer eligible for enrollment in the Amazon Brand Registry program if the USPTO ultimately rejects it because it does not adhere to the legal requirements.
Therefore, it is recommended to speak with a trademark attorney before filing a trademark application and launching a brand.
There are many reasons why the USPTO rejects trademark applications. Some can be overcome with thoughtful amendments or comments, while others cannot. Appeals of decisions by examiners have a low success rate.
Many international brand owners and attorneys note that the US trademark application process is one of the most rigorous in the world. US registration is treasured because of its usefulness, and hundreds of thousands of applications are filed each year.
A thorough process with many procedural and substantive requirements keeps those registrations meaningful.
The weight and respect given to the USPTO and registration process enable platforms like Amazon to rely on registrations to determine who is the rightful owner of a trademark. A registration also indicates that a trademark is valid.
Trademark registration has many advantages for brand owners, in addition to eligibility for Brand Registry program enrollment. It is prized and valuable.
If other sellers are using your trademark without your permission, it may hurt your brand’s reputation.
Those sellers may not offer quality customer service, and they may be selling inferior products. Negative reviews and poor customer experiences with the infringing products hurt your reputation. The use of interior or dangerous products can also hurt your customers.
The Brand Registry is designed to protect customers and sellers from confusion and fraud.
The Brand Registry transparency program helps sellers and Amazon verify the authenticity of goods. The Brand Registry counterfeit crimes unit works with law enforcement to stop counterfeit goods from entering the marketplace.
Cease-and-desist letters to unauthorized users are much more compelling if they include a registration certificate.
If a trademark dispute ends up in court and the owner has a registration, the burden immediately shifts to the other party to prove that they have rights to the trademark.
The Amazon Brand Registry program also provides enrolled sellers with tools to search for and report unauthorized use of trademarks.
Create a Brand Registry account to review all the available tools and benefits.
On the other side of enforcement is defense.
If someone alleges that your brand infringes on their intellectual property rights, they may demand that you stop using the trademark and turn over your profits. A trademark registered with the USPTO is defendable in this situation.
Trademark registration creates a legal presumption that the trademark is “valid” and that the owner of the registration owns the brand.
This presumption is allowed because the USPTO has done the job of reviewing the evidence and applying a meticulous examination process to the submission.
A brand registered with US Customs and Border Protection also has advantages.
Stopping counterfeit products from being produced and sold online can be difficult. However, the Customs and Border Protection agency has a robust system of checks to stop counterfeit products from entering the country. You simply notify customs when legitimate shipments are planned.
Registration with US Customs and Border Protection is a straightforward process. Registration of a unique trademark makes it easier for customs to do their job and stop counterfeit products from entering the country.
Trademark registration is country-specific, aside from the European Union and the Organisation Africaine de la Propriété Intellectuelle (OAPI).
Registration in the United States is generally not recognized in other countries, and vice versa.
A treaty system, referred to as the Madrid System, allows owners of trademarks to easily apply for registration in countries around the world. This streamlines the process and reduces fees in some cases.
Enforcement of trademark rights can also be used as leverage to settle disputes in other countries.
Registered trademarks are afforded broader rights than unregistered brands.
Unregistered brands typically have geographic limits defined by their area of activity. The scope of goods and services is also limited for enforcement of unregistered brands. Unregistered trademarks are often not afforded broad exclusive rights.
An unregistered brand runs the ongoing risk that someone else will register the trademark with the USPTO. An unregistered owner may be able to challenge the registration of a junior user, but the unregistered brand owner is at a procedural disadvantage.
Registered trademarks are considered exclusive to the owner.
A trademark is a word, phrase, symbol, design, or combination of these things that identifies the source of goods or services.
Consumers use trademarks to instantly verify the origin of goods and services, using only their eyes.
Consider your smartphone.
You likely have a preference for a particular phone maker. If you go to a store, whether online or brick-and-mortar, you are looking for a particular brand of phone. You are not looking for a generic smartphone.
Trademarks help the consumer know who made the phone, and they allow the phone maker to set itself apart.
Branding, the public image, reputation, or identity conceived of as something to be marketed or promoted, is part of a trademark because it helps identify the source.
When you purchase an Apple iPhone, the sharp, well-made packaging is part of the experience. The iPhone box is instantly recognizable to consumers and is therefore part of the brand.
A good trademark is therefore distinct. But what does that mean?
Trademark law puts trademarks on a spectrum of distinctiveness.
A word or image that describes the product or service, or a feature or result of the product or service, is a “descriptive” trademark. If Amazon.com called itself “The Retail Website,” that would be highly descriptive.
A descriptive trademark does not help consumers find products or services. Imagine if you told your neighbor that you bought your new garden hose at The Retail Website. That might mean homedepot.com or lowes.com.
A suggestive trademark is one that, on its face, implies or alludes to the goods but does not describe them outright.
As an example, the trademark office offers Coppertone® for sun-tanning products. This sun-tanning product will give you a copper tone. But if you didn’t know it was a skin product, you might think it was a paint product.
An “arbitrary” trademark is a word that has nothing to do with the product category. Apple® is the most commonly used example. An arbitrary trademark is considered strong.
A fanciful or coined word, one that is made up, is the strongest kind of trademark from the perspective of trademark law.
Consistency is important for establishing a brand that consumers recognize.
Most coffee shops look pretty similar, but the way you can tell you are at a Starbucks, in addition to the signage, is the trademark green aprons and branded cups.
When you start selling on Amazon or use other online platforms for your product listings, there are only a handful of ways to consistently convey your brand to the customer.
The seller should use every opportunity to consistently establish the unique image of the brand and seller.
Consistent branding should be used for product categories, product images, enhanced brand content, a seller account, and even when providing seller support. Each chance the seller has to highlight the overall brand while also optimizing the storefront, the seller should.
Look at an Amazon listing by your favorite brand store and notice how consistently unique branding is used, whether it is the word mark, color, or language.
Established companies commonly issue “Brand Guides” or “Brand Style Guides,” which dictate all the ways that a brand can be consistently presented. The font, colors, designs, and wording are carefully chosen and consistently used.
The more unique the branding, the easier it is for infringement to be spotted using the brand registry tools.
If you are using generic photos, descriptions, and colors that many other sellers are also using, it makes it difficult for your customers to distinguish your product listings and difficult to stop copycats, even when using the brand registry program.
Consider this iconic Heinz label. It’s instantly recognizable because of the coloring, font, and arrangement, which have only been subtly changed over the decades. If the label were updated every year, it would not be iconic.
If a different font was used for the ketchup label, the Heinz label would not have the same recognition across categories, which is highly useful.
For many brands, a trademark represents the majority of the value or worth of the business.
Inventory comes and goes, but the trademark lasts forever. A trademark registration can be renewed indefinitely, as long as the trademark remains in use.
The “goodwill” is the recognition of the brand in the marketplace. Goodwill includes online reviews, social media followers, website backlinks, and news articles. The goodwill is directly related to the trademark.
The sale of a trademark typically includes goodwill, which is listed as an asset in a business purchase agreement. A trademark, therefore, increases the value of your business.
The fact that you have gone through the process of registering a trademark is a value add for your business. Some buyers may consider trademark registration essential.
Because there are many reasons why an application to register a trademark might be rejected by the USPTO, registration solidifies the validity of the brand.
Because the application process for registration can take a year or more, potential acquirers of your business see registration as highly prized. Amazon’s brand registry program helps trademark owners retain the value of their businesses.
Eric Eagle Hartmans is a trademark attorney in Los Angeles, California. He works with many Amazon Sellers, helping them with brand strategy, trademark registration, and enrollment in Amazon’s Brand Registry. He also represents clients for the purchase and sale of trademarks and companies.