The Lowdown

Amazon Brand Protection is Broken: Here’s How to Fix It

By James Thomson and Joseph Hansen

Amazon has brands playing whack-a-mole to address counterfeit issues. It’s time to put down the mallet and adopt a proactive enforcement strategy.

Amazon Brand Protection is Broken: Here’s How to Fix It

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Dr. Jochen M. Schaefer

Dr. Jochen M. Schaefer

6 months ago

I have read your article and must say that I do not share your views in a couple of points based on my own professional experience in my capacity as long-term Legal Counsel of the World Federation of the Sporting Goods Industry (WFSGI) and Lawyer in Private Practice: – The contribution states that only trademark owners should be allowed to define who can sell and who cannot. What is neglected in this conclusion is that under the current law regime and the doctrine of exhaustion principle plus from a free trade of goods and services perspective it does not work at least within the EU. Let me illustrate this with a concrete example: If I purchase an Apple original product, even if from a seller who is not part of the authorized distribution channel ofApple, I have all the rights of this world to post it again for sale on amazon. With the first sale, the the trademark rights and other IP rights are exhausted exhausted and Apple is not entitled at all at all to block me from doing so. If they do, they would be severely liable and would breach antitrust laws. – Regarding your comments about takedown… Read more »

James Thomson

James Thomson

6 months ago

Thank you for your comments, Dr. Schaefer. We are not proposing that brands should outright be allowed to gate any unauthorized sellers, as that would completely change Amazon’s flywheel. Instead, we are looking for ways to reduce problems with products that are highly likely to be counterfeited – today, Amazon already enables certain types of seller gating through its Brand Registry program, while Walmart.com and Target.com require certain restrictive approvals for additional sellers to be able to list items. Yet, Amazon allows sellers with no selling experience to show up with seemingly unlimited amounts of inventory on items that aren’t even sold or distributed in the country from where the seller identifies itself. While the first sale doctrine is a broad protection for sellers, it can be supplanted when brands implement and enforce material differences or other quality controls, yet getting Amazon to enforce such trademark protection is a very slow, frustrating process for trademark owners. I don’t pretend to have a perfect solution here, but believe that there must be a better, and creative way to slow down the massive influx of counterfeit product onto the Amazon marketplace, while still allowing sellers of non-counterfeit products to be able to… Read more »

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