Protecting Your IP When Selling on Amazon

Jun 29, 2021

Tips That Will Help You Set Yourself Apart from Other Amazon Sellers and Keep Your Intellectual Property Yours 

When selling on Amazon, it’s important to abide by the rules set by the e-commerce giant. You must comply with Amazon’s Intellectual Property Policy for Sellers to be able to sell your products. On top of that, compliance with all federal, state, and local laws and Amazon policies is required. Violating IP rights of brands or other rights owners may have dire consequences for a seller, such as the loss of selling privileges or even harsher and more serious legal consequences.

This blog will help you understand what intellectual property is, the various branches of IP, and the importance of protecting your intellectual property when dealing with online marketplaces like Amazon.

Four Types of Intellectual Property

1. Copyright – This type of intellectual property is given to someone who creates an original work which they authored–like a book, poem, song, or movie. According to the Copyright Alliance, these rights include the right to reproduce the work, to prepare derivative works, to distribute copies, and to perform and display the work publicly. This is especially helpful when you sell a book or an e-book on Amazon.

 

2. Trademark – This is what is unique to or defined by your brand on Amazon. This will help differentiate your products from your competitors. These are words, phrases, symbols, and/or designs that are used as “source identifiers”. This means that a brand wants the consumer to immediately think about their brand before anything else when they see a certain word, image, or slogan.

 

3. Patent – A patent is an exclusive right granted for an invention. According to the World Intellectual Property Organization (WIPO), a patent provides the patent owner with the right to decide if the invention can be used by others. This will protect your inventions when you sell them on Amazon.

 

4. Trade Secrets – Trade secrets are rights on confidential information or company secrets. For the information to be classified as a trade secret, it must be commercially valuable, only known to a few individuals, and there must be steps taken by the owner to keep the information a secret. An example of this would be KFC’s secret spice recipe or Coca-Cola’s formula.

 

By applying for a trademark, you are essentially preventing competitors, both online and off, from using your brand and competing listings to sell products with your trademark. This can also help stop others on Amazon from marketing and selling a brand that’s been gaining in popularity and catching the eye of other sellers.

Within the umbrella of the trademark, there are a few subcategories. The first is known as word mark, which protects the actual word or phrase used by a brand. Color, font, and style do not fall under this protection, only the text. Another is the design mark or the logo itself. Last is trade dress which refers to the overall appearance of the product or service.

It’s better practice to have your first trademark be a word mark since it offers the broadest protection. Once you trademark the word itself, you can present it in any way you please, using various fonts and colors. Logos on the other hand may undergo different changes as a brand evolves over time, so it’s best to protect the actual word or phrase first. As an Amazon seller, if you want to protect your brand as you see substantial growth, you need to consider trademarking, and for everything else, you should invest in Amazon sales forecasting software so you can follow trends to get an accurate estimate and prepare for future demand. 

Understanding the Strength of Trademarks

The public needs to be able to distinguish the branding associated with your product from your competitors–a trademark becomes stronger when it’s more distinctive. A brand is recognized as a trademark and can be protected only when it’s distinctive (consider a simple piece of fruit that doesn’t indicate anything specific, yet an apple with a bite taken out of it is more unique). The list below shows how strong a trademark is, going from weakest to strongest.

 

1. Generic – Generic trademarks make use of common words, descriptions of products, or descriptions of the seller themselves. You might not be able to register this because these are everyday terms that everyone has the right to use. For example, if you decide to use the word “tee” for a t-shirt brand, then it would be too generic. It would prevent other people from using that word for their own products, which is illogical as it essentially keeps people from using the name of the item as recognized in the English language.  

 

2. Descriptive – Descriptive trademarks use terms that describe the merchandise or service they are selling. These can be words that describe the color, smell, or texture of a product. For example, using the term “soft” to describe a blanket. This type of trademark can be protected, but only when you can prove its distinctiveness. Typically, the trademark must be highly utilized in commerce for a minimum of five years before it will acquire any kind of distinctiveness.

 

3. Suggestive – Suggestive trademarks register words that imply qualities or attributes of a product without necessarily relating to them in a literal sense. For example, using the term Greyhound for bus services or Netflix for an online streaming platform. It requires some sort of imagination from the consumer to connect the dots and understand the relationship between the brand name and the specific service or product they provide.

 

4. Arbitrary – Arbitrary trademarks use words or phrases from standard vernacular in an uncommon way. These words should be unrelated to the products that they represent. Apple is a good example of this. The brand is named after a fruit however, the company sells electronic products. 

 

5. Fanciful – Fanciful trademarks make use of made-up words or a new word that does not currently hold any meaning to the general public. These are especially strong since they have no meaning prior to being trademarked for a specific brand, and the word automatically becomes forever associated with their product or service. Xerox and Polaroid are good examples of this.


One way to make your brand distinct is to focus on the trade dress. As mentioned earlier, a trade dress is the overall appearance of a product or service. For a product, the trade dress may be the packaging, the displays, and even the design or configuration of the product itself. For a service, it may be the decor or environment where the service is provided. This makes a brand distinct and separates it from everyone else in the market. This is especially helpful to Amazon sellers trying to stand out in an often saturated market. 

Requirements For a Trade Dress

A trade dress must be both distinctive and non-functional. The functional aspects of a trade dress can’t be protected under trademark law. 

The Nonfunctionality Requirement is described under the utilitarian functionality doctrine, which states that a product feature is functional if either: the feature is essential to the use or purpose of the product or the feature affects the cost or quality of the product.

Distinctiveness Requirement

Inherent Distinctiveness means that the trademark is so unique that it can act as a distinguishable identifier from other sources of goods or services being sold. Only product packaging and sound marks can be inherently distinctive.

Acquired Distinctiveness is also known as secondary meaning. It implies that the trademark has gained significance among the public, and that the primary significance of the trademark is to identify the source of the product rather than the product itself. It is also determined by the length of time the trademark has been used and the exclusivity of use.

Examples of Trade Dress

Product Design or Configuration

  1. Christian Louboutin’s red bottoms
  2. Coca-Cola bottle shape
  3. Jack Daniel’s square-shaped bottle

Product Packaging Examples

  1. Jack Daniel’s “Old No.7 Brand Tennessee Whiskey” logo
  2. Levi’s Jeans “This is a pair of Levi’s” on the pocket print
  3. Maker’s Mark signature red wax seal

Nontraditional Trademark Examples

  1. In-N-Out Burgers’ interior design
  2. MGM’s “lion roar” for motion pictures and related services
  3. Grendene’s “bubblegum scent” for their shoes, sandals, flip flops, etc.

A trademark indicates the source of your goods and services and distinguishes them from the goods and services of others. Here are some pro tips about trademark protection:

1. Trade dress should accompany a design patent

2. Consider product packaging first since it can be “inherently distinctive”

3. Trademarks are an investment

4. Integrate the trade dress conversation at the product development stage

5. Use inspiration from major brands to create your own trade dress

Benefits of Registering with the USPTO

Registration with the United States Patent and Trademark Office (USPTO) provides official documentation and the legal presumption of national ownership of a trademark. The concept of a trademark as a commodity that holds value is an important part of the benefits of registration.

1. Exclusive right to use your brand nationwide. If you only have common law rights, meaning your brand is not yet a registered trademark, then you’re limited in geographic scope to where you’re allowed to use that trademark and that’s where you’ll have protection.

2. USPTO registrations can also be used as a basis to expand to other countries and to expand to international arenas.

3. The registration notice is usually published in official journals to give the public notice of new trademarks.

4. You have indefinite use of the trademark as long as you complete maintenance documents and continue using it in commerce.

5. If you have a trademark with the USPTO, you can apply to US Customs and Border Patrol so that any unauthorized shipments to you can be confiscated or destroyed.

Conclusion

As an Amazon seller, trademarks are an essential part of your business. Your trademark is the face of your business and it represents your reputation, and having one means that you’re making it easier for your customers to tell the difference between the specific products and services that your business offers and what other similar businesses may advertise. A registered trademark is something that investors, lenders, and franchisees look for because it shows that you are serious about your brand and that you want to grow your business. By registering on Amazon Brand Registry, you will be able to have more control over the products you sell on Amazon as well as the content on the detail pages. If you are looking to make your FBA business more competitive, Keyword Inspector gives you the tools you need so you can reach your full potential with features like reverse ASIN research. Combined with a trademarked product, the KI software can help you boost your business at an exponential rate.  

Courtney Moore

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