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Originally published on September 15, 2022, updated January 4, 2024
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Learn more about the four pillars of intellectual property from a senior attorney at Cabilly & Co., a leading law firm that represents thousands of Amazon sellers around the world.
You know that wonderful feeling when your business runs like clockwork and you have all your ducks in a row? No? Well, that’s probably because you're an Amazon seller, where the rules of the game are constantly changing and innovation and agility are key requirements to any sort of success.
Amazon's policies change quite frequently, causing you to adjust as you go. Nevertheless, there are some constant foundations that can help you grow your brand and business, enforce your rights, stay out of trouble, and provide stability in this crazy (yet fascinating) online world. Understanding the Amazon intellectual property policy is one of them. In this article, I'll share everything you need to know about intellectual property on Amazon.
When it comes to intellectual property on Amazon, you always need to think of two things:
But how do you know if you're violating a patent, trademark, or copyright? When can you protect your rights?
While you certainly can't become a trademark attorney overnight, we can promise you one thing: if you acknowledge the four basic pillars of intellectual property, you’ll avoid 80% of the suspensions on Amazon and will be able to better protect your own rights.
Amazon sellers need to know these four main pillars of intellectual property: trademarks, copyrights, design patents, and utility patents. Each pillar protects your intellectual property, or IP, in a different way.
While this pillar is probably the most well-known, I still receive a lot of questions about the Amazon trademark policy in particular. Here's the key information about trademarks to keep in mind.
Trademarks protect brand names and logos that are used to market products or services. When you register a trademark, you register it in a specific category (such as apparel or electronics), in relation to a specific type of product.
Trademarks protect brand names and logos that are used to market products or services.
For instance, the trademark “Nike” is registered in class 25 (the clothing category) in relation to “footwear.” You can see one of Nike’s many trademark registrations from the United States Patent and Trademark Office (USPTO) database below.
Having a trademark is particularly important for Amazon sellers because it's the only way to gain access to the Brand Registry program, which is a game-changer when it comes to building and protecting your listing and enforcing your IP rights.
When you're ready to file a trademark application, keep in mind that it can take nearly a year for the US trademark office to review and process it. Luckily, you can enroll in the Brand Registry program shortly after you've filed your trademark application and still receive its benefits. Just remember, you can only enforce your trademark once it's gone through the entire registration process.
The trademark office may refuse a trademark application for a variety of reasons. The most common reason is that your brand name or logo is too similar to another trademark in that class. For instance, if you attempt to register the trademark “Apples” for electronics, or “ADIDIS” for shoes, your trademark application will likely be rejected.
The best way to avoid this is to conduct an availability search before you apply for the trademark and before you ever start using it on your products. Don't go into the manufacturing phase without knowing about any problems with your brand name. This is where most of the Amazon trademark infringements come from.
If you fail to do this and don't have the proper protections in place, your brand will be left exposed and "hijackers" can more easily start selling knockoffs on your listing. The lack of a trademark registration can also stand between you and a successful Amazon exit.
To effectively ward off Amazon hijackers, it's crucial to keep a watchful eye on your product listings every day. While manually checking for other sellers may work in the short run, it becomes impractical if you have a high volume of items. To stay ahead of the game, many sellers turn to third-party services like SellerPulse by eComEngine.
Get notified when the number of sellers on your listing changes. This proactive approach could be the key to preventing hijackers from selling counterfeit versions of your private label or branded products.
Copyrights protect photos, texts, and graphic designs. Unlike other forms of intellectual property on Amazon where registration is mandatory to have a protected right, it’s optional to own a copyright.
Copyrights protect photos, texts, and graphic designs.
Here are some examples to help explain the Amazon copyright policy. If you took a photo on my iPhone, you own the copyrights. If you’ve designed a bag with a unique illustration of a dog, you could remove any other seller who reproduced this illustration on their listing without securing a registration. You simply prove to Amazon that you’ve designed this illustration first and file a copyright complaint through the Brand Registry.
Keep in mind that if you want to file a lawsuit based on copyright infringement (and not just a complaint to remove the listing), you will need a copyright registration to protect your rights in court.
To avoid copyright infringements, the rules are simple: don’t use third-party text, photos, or graphic designs. Use your own text and images on your product detail page. Be original and don’t copy even a single sentence. This will prevent 95% of copyright infringement cases.
Utility patents are the most “serious” of IP rights. They are also probably the least common because it can be difficult and expensive to obtain a utility patent. That being said, many of the large sellers on Amazon have faced patent infringement at some point.
Utility patents protect the way an item functions. They are granted for a term of 20 years if the invention is considered new and useful. For example, the first telephone was invented and patented by Alexander Graham Bell in 1876.
Utility patents protect the way an item functions.
As a private label seller, you want to make sure you do not infringe on any patent by conducting a search through a professional patent attorney. If you’ve created a new product, you may want to consider a utility patent to protect your item and increase the value of your entire business.
While utility patents protect the way an item functions, design patents protect the way a product looks, including its shape. Think, for example, of the immediately recognizable shape of a Coca-Cola bottle. That shape was protected by a design patent.
Design patents protect the way a product looks.
As a seller, you should take into account that most companies who designed a unique product secured a design patent to protect it. Naturally, the best way to avoid a design patent infringement is to design your own product, or at least change the design significantly. An attorney can help you perform a design patent search and locate any existing patents and avoid infringement. If need be, make changes to your product now to reduce the risk of infringement.
Once you've gone through all the effort of registering your IP rights, you can start enforcing them. This looks a little different for each type of IP. Trademark registrations are mostly used to remove hijackers and counterfeiters, while design patent registrations can shut down competitors who are selling a similarly designed product. A copyright registration can be used to take down sellers who use your photos, texts, or graphic designs. And while a utility patent can be difficult to enforce, you should take the time to learn about Amazon’s Neutral Patent Evaluation procedure.
Intellectual property might seem overwhelming, and it’s hard to know where to start. But if you understand the four pillars of intellectual property on Amazon (and continue to monitor your brand), you can sleep a little easier at night. If you need help protecting your IP, reach out to Cabilly & Co. today!
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