There’s a brand from which I purchase direct that’s generated significant volume for us every year. As of late, unfortunately, many sellers have jumped on their listings, which has caused our volume to drop notably.
I spoke with my business development manager last week, and he mentioned that they are enrolled in Brand Registry, but have never been very diligent in managing their listings. Their plan is to report every seller for infringement to completely clean up their listings, and then try to add legit sellers oin a case-by-case basis.
I told him that this was a very bad idea because, among other things, we would get hit with multiple violations for no reason, not to speak about the fact that the listings would stop all sales immediately. Do y’all know if it’s possible to select a couple of sellers (only 2 of us are authorized to sell their products) as authorized on Brand Registry, and kick out / set restrictions for everyone else?
There have been other sellers who have made reference to brands that are using “white lists” with Amazon which gate the process of making an offer on their listings.
Not on the “white list”? … Then, sorry “you’re not approved”.
Depends on how much work the brand is willing to put into it and whether they care about your profits or not (they might not really care that much).
The best way to stop supply chain leaks is
Some kind of tracking, whether that be serial numbers, or printing a code on the product corresponding to the wholesale account it’s being shipped to
Make all wholesale accounts sign an agreement to not sell on 3rd party marketplaces
Start terminating wholesale accounts and/or sending C&Ds/lawsuits to vendors who violate the agreement
Filing bulk infringement claims will likely get their brand registry enrollment terminated and rightfully so. Their products aren’t counterfeit and IMO selecting “counterfeit” on an infringement claim is making a false statement. Let’s put it this way, Vorys is a big time Amazon bully, and they don’t file infringement claims even though that’s the easiest way to remove a seller. There’s a good reason for that.
Getting the brand gated and restricted is something for the big boys, and probably because they’re selling directly to Amazon or have some other special agreement with them. (Or had Eddie bribe them to do it)
If you want the brand to do a bunch of work though, you’ll probably need to negotiate some kind of agreement where you’re the sole authorized Amazon seller, but you’ll also compensate them for that privlidge and for them to defend it.
That is a terrible plan.
It’s literally* throwing out the baby with the bathwater.
Sales will slow if not stop, trust will be eroded between authorized resellers and the brand, and some authorized accounts will be irrevocably damaged.
What you are looking for is brand gating. Nearly impossible to do unless the brand has been attacked multiple times with legit counterfeit issues.
If you can prove these attacks, you have a chance but will need legal counsel to pull it off with Amazon’s legal dept.
You can also advise the brand to go the route of the transparency program which should accomplish the same goal albeit at a cost and work. If the other sellers can’t get the transparency codes, they can’t sell the product on Amazon. The brand holds the key to that.
Technically you’re supposed to apply transparency labels to ALL units produced. Using it to enforce selective distribution is a violation of the program guidelines. I dunno if this is enforced though or not. I looked around for a way to report a brand for this a few years ago but haven’t found one.
It is possible to do this on a case-by-case basis with a judicious application of the RaV (‘Amazonese’ for “Report a Violation”) Tool (link, Brand Registry 2.0 Dashboard), as is explained in the SHC’s Report intellectual property infringements (link) - but it may well prove more-expeditious for the concerned RO’s legal representation to send a carefully-crafted Demand Letter, via Certified Mail, directly to Amazon’s OGC (“Office of the General Counsel”).
Generally-speaking, that latter is the methodology that RO’s have been using for many years to create the type of ‘white-listing’ that our friends @Lost_My_Marbles & @GGX (and @dwat0870) speak of.
My guess is what you said is the BEGINNING of the process to possibly get a brand gated. If it was simply sending a demand letter we would see attorneys advertising brand gating services andd sending the same form letter for every brand.
I know how hard it is to work with Amazon from years of experience, but I’m a bit disheartened after reading all your comments… I thought brands would have it a little easier to enforce action, especially the well-known ones (this one isn’t Nestlé, but you can still find it in all major grocery stores in the US).
Another solution I’ve proposed to the manufacturer is adding us as an additional user or registered before reporting every seller, as outlined in the Brand Registry FAQ. If they agree to this, I’m thinking this might be the easiest and quickest way, and I’m assuming we would not be affected by a general swipe of the sellers of their listings.
As our friend @ASV_Vites alluded upthread (and has previously mentioned several times before, both here & in the OSFE), the key is centered upon an ability to demonstrate, convincingly, that a pattern of abuse exists solely because Amazon’s practices and procedures have facilitated damage for which those are in and of themselves liable.
I do not doubt that the row is tougher to h_oe (broken for default Discourse Filter, which doesn’t like street-slang for whόre), nowadaze, than it was when we ourselves secured Brand Gating in 2017 by following exactly that path.
Well, if they’re willing to illegally file a bunch of false counterfeit claims to protect your sales, if they choose to go that route (ultimately that’s their decision as the brand owner), I would distance yourself as much as possible from it. You should definitely not suggest that they do it and be careful with anything you say or write that can potentially be used against you in court.
Also, it sounds like that brand doesn’t actually have a counterfeiting problem or any problem that actually justifies brand gating. You just want exclusive rights (and also maybe to sell at a higher price) to Amazon sales. If the brand wants to enforce selective distribution that’s their job to do with product tracing, cease & desist letters, cutting off vendors, and lawsuits. It’s not something that Amazon should be granting just because it’s asked for.
While gating is not possible even with very large lawyers like Nike - folk are still abritrage selling Nike shoes on amazon even though Nike officially does not sell on amazon.
The best course of action is reporting all other sellers for selling materially different items. Which is a counterfeit claim viz a viz BR.
The issue here is unless you can prove the items are materially different, that is also almost impossible.
Anything else would just be considered Black or Grey hat so not even worth mentioning here.
You’re making a lot of incorrect assumptions. I do not want exclusive rights to sell that brand, and I’m not suggesting that they file a bunch of false counterfeit claims. I just don’t want to be hit with some of those violations for no reason, and am just trying to determine what the best course of action is, as there are indeed many sellers offering their products that are dubious at best, since they were not purchased from the manufacturer themselves or any of their distributors, while they’re still selling them at ridiculously low prices.
First course of action would be for the brand owner to make a test buy to see if the products are legitimate or not.
If you’re authorized to sell on Amazon (and the brand owner knows your storefront) then they shouldn’t be including you on the IP claim. If they’re filing the IP claim against the entire listing that’s just wrong since the listing itself is for an authorized product.
I may yet again prove to be mistaken (an all-too common occurrence, dadgummit), but I believe it’s precisely because Nike (like many another major player in Retail Industry) has, by and large, severed ties with Amazon that this practice has been allowed to continue.
But if they wanted to, Nike could shut those sellers down with their lawyers, my only point was that Nike, as large as they are, doesn’t enforce their strict supply chain when it comes to Amazon - I would say a small brand would be hard pressed to enforce it without spending a few $'s behind cease and desists.
So they are technically selling a materially different item without warranty - the key is to be able to bring that to amazon’s attention. That’s all I’m saying.
Well of course, Amazon at the end of the day cares about Amazon, if a brand doesn’t want to work with them, they’re less inclined to be helpful to the brand.
As for them selling a materially different item, the report infringement page only offers 3 choices
“A product detail page is unlawfully using my trademark (e.g. in product title, product images, product description).” – This is not the case. The detail page is likely created/managed by the brand owner if they’re part of brand registry
“A product or its packaging has my trademark on it.” – This refers to a product that has your trademark on it that you did not create (if I made a bunch of t-shirts with my own brand with the Nike swoosh on it, it would fall under this)
“A product is counterfeit” – Materially different is NOT counterfeit. Counterfeit strictly means un authorized reproduction of the product. If the brand owner authorized it’s manufacture it is not a counterfeit product.
I don’t know if brand registry offers more options, but unless there’s some option for “used sold as new” or the like, none of those 3 describe the infringement that’s happening.
