Did you know brand registry doesn't mean that you get to decide who lists your product on Amazon? We've recently seen an uptick of sellers falsely accusing competitors of counterfeit, resulting in a suspension from these tools. In this episode Chris & Leah discuss the consequences of these false IP claims & the proper way to use brand registry.
[00:00:07] Chris: Hey everybody, welcome back to Seller Performance Solutions. I'm Chris McCabe of ecommerceChris, I'm here with Leah McHugh, also of ecommerceChris, how you doing Leah?
[00:00:14] Leah: Good, how are you, Chris?
[00:00:16] Chris: Good. I think it'll be better after we get some things off our chest today. In terms of craziness we've seen with IP, intellectual property claims, I think some brands are either misguided or misled into believing they can accuse anyone of counterfeit that they find popping up on their listing at any time. I'm not sure why after all the content floating around out there, I suppose there is some contradicting material, but I'm not sure why so many brands just run muck and believe that they can accuse anyone of counterfeit without doing a test buy or without thinking of the potential consequences.
[00:00:51] Leah: Possibly because some lawyers are telling them that they can.
[00:00:55] Chris: Right, Right. Well, for their own, For their own gain, of course. Yeah. But for their own financial gain, lawyers are trying to act like you need a lawyer for just about everything that involves Amazon, which of course is, is not true.
But in this particular case, we've had sellers that are private label brands who are coming to us suspended, of course, account suspensions. We often hear from people immediately after that suspension happens. They're suspended for making false IP claims, or they're suspending their ability to make IP claims, I should say. They revoke their access to the IP reporting tools.
[00:01:27] Leah: Right, Or all of brand registry. I've seen both. Sometimes they just revoke access to the reporting tools. Sometimes they're revoke full access to brand registry, which means no more A+ content. None of the little perks that you get with brand registry, including the reporting tool.
[00:01:40] Chris: Right. I was leaving the brand registry part to you because you're dealing with that on a daily basis and seeing those nightmares. But, one seller that contacted us did manage to get reinstated. It's not that it's impossible to appeal it , but it has to be appealed properly. there's a certain amount of confessing going on.
I think I read it in part of their appeal, they were saying that their employee had gone a little crazy reporting people that they saw on the listings. And I guess my question to you is, do you think whether it's a lower level employee or not, are people just seeing somebody pops up on the listing and automatically going to the counterfeit reporting tool?
[00:02:18] Leah: Yeah, I mean, people of course are doing that. Which that tool is not for enforcing distribution agreements, it's for reporting counterfeit. So unless it's an actual counterfeit, somebody selling your product that you don't wanna be selling your product doesn't count as something that you can report with that tool.
And I think, I think that's the biggest misconception and I think that's been a misconception of brand registry since the beginning. Brand registry doesn't mean that you get to decide who lists your product on Amazon. That tool is not for reporting people that you don't want selling your product on Amazon.
That tool is for reporting counterfeits of your products. So products say you have done this test buy on, you've confirmed that it is in fact a counterfeit. That is what that tool is for. Similarly, the infringement tool is not for reporting people that, again, have maybe created listings for your products that you don't want sold on Amazon.
That tool is for reporting people who are legitimately infringing on your trademark. Like they're using your trademark in their product listing for a totally different product that has nothing to do with your brand. Right. And I think that's where people are running into issues. Another area we're seeing people run into issues is, You have access to brand registry while your trademark is still pending.
So we're seeing people reporting trademark infringement while the trademark is still pending with the USTPO and hasn't actually been accepted by the USTPO. And you don't have the right to report an infringement until that trademark is confirmed, so we're also seeing people get their brand registry revoked because they just immediately start reporting even though their trademark has yet to be accepted by the USTPO.
[00:03:55] Chris: Right. And of course, amazon as usual is sending the same message for every case. For every outcome you've engaged in, deceptive, illicit, or fraudulent behavior and no seller seems to understand why they're getting that. And then they come talk to us and we tell 'em, Look, you reported somebody for trademark infringement.
Your trademark was pending. A lot of people don't understand why they've lost access to A+ content or had their brand registry revoked because of false or unsubstantiated IP claims. That's the piece I'm having trouble understanding. Why don't they backtrack into, Well, we did report all these other people, Amazon threw those claims back at us.
We were over zealous. We didn't understand what we were doing or we had bad guidance from an attorney that wasn't an IP attorney, whatever it might have been. They never seemed to understand. I mean, I understand Amazon doesn't spell that out in the message. But I would think you, as the seller would know, oh, remember that stuff that we threw at Amazon last month that they threw back at us? That might be why we lost brand registry.
[00:04:53] Leah: Generally speaking, when I speak to sellers, they, they think that they've been using the tool correctly. It's not that they're intentionally misusing it, it's just that they don't understand how they are supposed to be using the tool.
I mean, similarly, a lot of brands give their distributors access to brand registry, and not a lot of sellers know that their distributors aren't supposed to report infringement because of course, if they're selling those products on Amazon as well. Amazon doesn't want somebody other than a brand owner with reasons to report other sellers. So again, it happens a lot because it doesn't actually spell out anywhere on Amazon that you're not supposed to do that. We just know it because we've seen it.
[00:05:33] Chris: Yeah. What I'm more driving at is, there must be material and content out there saying, Hey, look at this great new weapon against anyone who pops up against your listing. I think it's a failure for them to vet content that they're consuming. Maybe it's just a seller forums post. I don't really know. There's so much garbage content out there that tells you to do things you shouldn't be doing. But I'm wondering if it's just eagerness to take care of something that they've been sweating for a long time, that they've been annoyed about, that they can't fix by resolving through their distribution channels, Or are they just consuming articles and videos that are pushing them to do something that doesn't work?
[00:06:08] Leah: I don't even think it's just the sellers. I see services that does do this for people that get them in trouble too, or automated software that just blanket reports. Anybody selling your product as counterfeit, which again, is potentially going to get you into trouble. And before all the sellers do the like, well, I've been doing it for years and I haven't gotten in trouble.
I have that conversation every day. And yeah, you haven't gotten in trouble yet. That doesn't mean you won't.
[00:06:32] Chris: Right. There's tons of stuff you could be doing right now, live on the site that bots won't grab and flag and get somebody to review your account right away. Some people will, some people won't. This is the inconsistency of the tools and the SOPs inside Amazon, but that's also pretty well known at this point.
If something's not happening to you, that's happening to a competitor or happening to you, that isn't happening to a competitor, that's always the explanation. Inconsistent enforcement.
[00:06:59] Leah: So well, What I find interesting with this is that, I mean, was it this year? Was it last year? I don't know.
It all blended together in my head at this point, but when they first started doing this, most of the cases we were seeing were actually incorrectly flagged by Amazon. It seems that they have actually figured out a little bit better that either their SOPs or the automation where they are actually correctly identifying misuse of their tools and suspending for that.
Which I, professionally find interesting. It is good news for sellers and it's also not often that we see brand registry improve in a way. Good job brand registry,
[00:07:35] Chris: Right. IP attorneys are out there. If you don't know one, you need them to review what you're planning to do. Obviously if a product is fake and you can prove it's counterfeit, you don't necessarily need an attorney to help you understand if something's counterfeit. But in terms of making trademark or designer patent or copyright allegations, Leah and I aren't attorneys, but we can help steer you in the right direction. The one cautionary word of advice we'd advise you on here is don't just find the most vocal or omni present attorney that doesn't have IP attorney background.
I mean, in the Amazon space, most attorneys that are visible aren't IP attorneys and a lot of sellers don't seem to grasp the difference, which is unfortunate.
[00:08:13] Leah: Yeah. And also as a brand owner, you yourself should at least familiarize yourself with the difference between trademark or copyright and patent infringement, because we also see a lot of people report the wrong one for the wrong thing.
So yeah, good to know that for yourself. You don't necessarily need an attorney for that. That one's fairly easy to find definition for, but definitely worth looking into before you report any of those things.
[00:08:35] Chris: And registering copyright, You don't necessarily need an attorney for that either, right?
[00:08:40] Leah: But I regularly see sellers reporting counterfeit or reporting trademark infringement when they mean copyright or copyright infringement when they mean trademark. So good to familiarize yourself with what the differences are between those different types of infringement.
[00:08:53] Chris: Yeah. If you're a private label brand owner on Amazon, I would say it's essential.
So definitely. Any questions on anything we talked about today, or if you've had your ability to report IP claims revoked and then appealed it successfully or unsuccessfully, let us know. We will be happy to steer you in the right direction. Thanks again. We will talk to you soon.