Trademark System Bias


Welcome to a series about the threat and impact of questionable trademarks.
Scroll to the bottom for an ordered list of posts, or go to the Index.

TM System Bias, Part 04b: Online Biz and Amazon

Trademarks referenced by this series are included only to illustrate how Trademark System Bias affects outcomes. See more. All opinions are my own. I'm not an attorney and you're not my client. When relevant, posts are sponsored or contain affiliate links. More Legal

Last updated on July 17th, 2020

In this post, you’ll learn how Amazon’s IP policies, unlimited brand names, and brand registry program all motivate creatives to apply for questionable trademarks.

How Search Engines Promote Frivolous Trademarks

Search algorithms on Amazon, Etsy, and Google reward business owners who include keywords in their listings. But this isn’t the only way Amazon incentivizes questionable trademarks. 

Unlimited brand names, IP policies, and Amazon’s brand registry program are strong motivators for securing questionable trademarks. 

When these factors are combined with the search algorithm benefits of keyword-rich “brand” names, frivolous trademark applications are inevitable.

Amazon understands buyer psychology. One factor in buying decisions is quality, and an indicator of quality is specialization. 

For example, suppose you are shopping for a garlic press on Amazon. Two brands might be “Ninja Kitchen” and “Lucky Goldstar Auto Parts.” If you buy it from the auto parts brand, I’m wondering what else I can sell you.

Unlimited Brand Names on Amazon

You’re not gonna believe this, but…

Creatives can generate a different brand name for every niche (bearded men, dog lovers, etc.), or even every single listing.

Many of the similar “brand” names you’ll find online are a consequence of the current search algorithms on Google, Amazon, and Etsy. A single business owner may have multiple “brands” competing against each other for the top position in the search results.

Thankfully, most of these crazy “brands” have no effect on the current trademark crisis because they are not registered trademarks. The downside is, they are ALL affected when a keyword in their brand name becomes a registered trademark.

Amazon and Etsy IP Policies

IP policies at Amazon and Etsy provide strong motivation for sellers to register questionable trademarks. This fact is critical for USPTO to understand so that common sense can be applied to current examining procedures.

Merch by Amazon’s Content Policy states “We do not permit designs that incorporate trademarks which you don’t have the rights to use.” Sounds perfect, right?

As this blog post at My Lifestyle Dream explains, the Merch By Amazon’s Copyright / Trademark Policy extends beyond the limits of the law.

Amazon’s infringement letter to the product creator stated: “The Content Policy applies to your designs, product names, keywords on the detail page and the “brand” name selected.

So even if there’s no valid issue with the trademark owner, the 70K+ users of Amazon’s print-on-demand platform must observe a red line that’s far beyond what the law requires.

Amazon’s Automatic IP Infringement Response

As an example:

Suppose you’d like to create an artsy t-shirt for bird lovers, picturing a dozen favorite birds. There are many birds you can’t include in the design or the description:

  • Blue Jays
  • Cardinals
  • Orioles
  • Eagles
  • Ravens

Any registered trademark is off-limits, even if the design is clearly fair use of the term, even if the trademark is in another class of goods.

Etsy’s Terms of Use explains, “Our policies, which are based on case law, best practices and the Digital Millennium Copyright Act (DMCA), require Etsy to remove specified content when we receive proper notice of infringement.”

Amazon’s software automatically rejects products if any word in the title or listing “matches” a known trademark. And a product’s successful listing is no promise of its eligibility to remain on the platform.

Claims of IP infringement cause immediate product listing suppression and a “ding” on the “guilty” seller’s account. Multiple “dings” result in account termination, though nobody knows how many it takes to lose one’s account with Amazon or Etsy.

Amazon, Etsy, and other marketplace platforms understandably refuse to take sides in IP infringement issues. Ignoring a claim puts them at risk of lawsuits. And it wouldn’t make good business sense for them to manually investigate disputes.

I’m gonna say that again for all you “skimmers”:

Amazon, Etsy, and other marketplace platforms understandably refuse to take sides in IP infringement issues. Ignoring a claim puts them at risk of lawsuits. And it wouldn’t make good business sense for them to manually investigate disputes.

On Fighting Frivolous Trademarks, Part 04b: How Amazon Drives Frivolous Trademarks by Morgan Reece

If a trademark owner claims IP infringement against you on Amazon or Etsy, it’s your job to convince them to remove it.

#groveltime

Amazon Incentives for Trademark Owners

These policies make it difficult for sellers to defend themselves from overreach.

But that’s not the worst of it.

Amazon offers additional support and copycat protection to those who join their Brand Registry. Trademark registration is required. Brand Registry makes IP-infringement-based removal of competing products fast and easy, even when no actual infringement exists.

And, as was shown above, there are great benefits to including popular keywords in one’s brand name. Take, for example, “Crazy Cat Lady.” Here’s a list of trademark applications for this phrase:

Crazy Cat Lady Trademark Applications

Are you starting to get the picture?

I’m not saying, “The sky is falling! The sky is falling!”

Here’s what I’m saying: “Tut, tut, it looks like rain.”

This is Part 4b of a 12-part series about the threat and impact of questionable trademarks. The next post is Part 5a. Or see below for a complete list: