Amazon Brand Registry is a tool on Amazon whose purpose is to help manufacturers “protect your intellectual property,” “manage your listings,” and “grow your business.” While Amazon Brand Registry can be a helpful tool for reporting infringement of a brand’s intellectual property (IP) rights on Amazon, this tool can quickly lead to significant risk for a brand if not used carefully and appropriately. In recent months, Vorys has observed brands increasingly reporting negative consequences as a result of improper or imprudent Amazon Brand Registry takedowns. Specifically:
- Brands have increasingly reported that the strategies they previously used on Brand Registry takedowns are no longer effective. This is because Amazon continually revises its position on what issues are reportable, actionable, and “high priority” to Amazon. For example, a recent trend Vorys has observed is that Amazon appears to be slower to respond to marketplace policy violation submissions, potentially signaling that Amazon does not view them as high priority violations of its own marketplace rules. Vorys has a dedicated brand analyst team supervised by attorneys, and both the analysts and attorneys directly interface with Amazon to understand these updates in real time, leading to more efficient takedowns on behalf of the brands that we work with.
- Brands have reported that they have been sued when they, or their third-party agencies, have done Brand Registry takedowns on the brand’s behalf. It is quite common for a brand to be working with a third-party agency that assists with policing the marketplace platform and submitting “Brand Registry takedowns” on the brand’s behalf. Sometimes these third-party agencies have little to no oversight by the brand and are making IP claims when they are not legal professionals. We frequently see “copyright” and “trademark” infringement being used interchangeably, or submissions for “counterfeit” items instead of the unauthorized resale of legitimate (not counterfeit) products. As a result of these tactics, there has been a recent uptick in lawsuits filed by the sellers affected from the Brand Registry takedown in state and federal courts across the country. The claims range from tortious interference with business relations, deceptive trade practices, defamation, and declaratory judgment claims. Vorys has handled the defense in a majority of these litigations, frequently with a high degree of success in winnowing down the claims asserted and, often, resolving the litigations entirely. However, direct and regular contact between the legal and business teams on Brand Registry takedowns can often avoid these litigations in the first place.
- Brands have reported that their ability to make Brand Registry takedowns has been removed or restricted due to what Amazon has deemed “abuse of the tool.” When brands or their third-party agencies make numerous Brand Registry takedowns that are ultimately rejected, reversed, or withdrawn, Amazon can, and sometimes does, punish the brand by suspending or terminating their ability to report infringements through Brand Registry. This makes it much more challenging for the brand to address legitimate IP infringements and other marketplace violations at a later point. This again underscores the importance of carefully and properly using the tool.
There are many unique factual scenarios and arguable infringements that require a nuanced understanding of Amazon and IP law to effectively use Brand Registry and not unnecessarily create legal risk for the company. Vorys has extensive experience handling Brand Registry reporting for our clients to ensure all infringement complaints are proper and legally compliant, as well as a dedicated team that is engaged directly with Amazon to understand the up-to-the-minute best practices and priorities for Amazon. This unique team, combined with the lines of communication, is what Vorys views as best practice for making the most of Amazon Brand Registry while effectively managing legal risk.