Updated: Oct 3
One of our favorite (and most eyebrow-raising) things to do with executives at brands and manufacturers is to search their product name or category on Amazon and see what shows up. It’s a logical first step in determining an Amazon strategy, given that almost 70 percent of all product searches start on Amazon. What we usually find is eye-opening, especially when the brand or manufacturer isn’t selling their products on the marketplace. Typically, we see:
Products they don’t make showing up under searches on their brand name
Unauthorized sellers selling their products, most of which are unknown to the manufacturer
Counterfeit items are represented as authentic products from the manufacturer
It’s shocking to these executives that their products and company are represented so poorly, but it’s also not much of a surprise. Amazon makes up a whopping 50% of all U.S. e-commerce. As such, it’s become a place for opportunists and bad actors (i.e. counterfeiters) who are looking to take advantage of brands that aren’t proactively managing their presence on this massive marketplace. Amazon has announced that it will provide more data to law enforcement to help crack down on fakes, but the truth is that brands and manufacturers need to take control.
Unfortunately, there’s a misconception that there’s no way to control this situation. Some think it’s impossible, that Amazon is too big to control, or that their issues will just get lost if they voice a complaint to Amazon. The truth, however, is that there is a multi-pronged approach to brand management on the platform, and it only partially requires legal assistance. Let’s take a look at the steps every brand needs to take to protect themselves on Amazon, even if they’re not selling there.
Step 1: Register for an Amazon 3P Account
Even if you never intend to sell your products on Amazon (though we highly recommend you do), it’s essential to register for a third-party (3P) selling account. By doing this, you gain access to all of Amazon’s brand registry tools.
Step 2: Submit Your Trademarks to Amazon
You need to own trademarks to your brand and products as a pre-requisite, but once you do, you can take advantage of something called Amazon Brand Registry. This tool provides legitimate brand owners with a variety of rights within Amazon to control product listing pages, brand content, and a branded storefront, regardless of whether you are selling these products on the platform. Amazon actively encourages manufacturers to leverage this tool, as improved content and brand presentation from the authority in information about the products being sold on Amazon (that’s you!) ultimately results in a better experience for the Amazon customer. The Brand Registry tool also provides the ability for brands to submit complaints to Amazon when counterfeit products are found on the marketplace.
Step 3: Make Offers on your Products
Even if you have zero intentions of selling on Amazon, we usually recommend that manufacturers set up a product “on offer,” meaning for sale. This enables you to receive data about the sellers listing your products and allows for ongoing monitoring of who is selling your products. If you don’t want to sell on Amazon, simply set your prices very high so that no one will buy the items. You’ll still get the data but you won’t show up at the top of the product listings.
Step 4: Establish Good Channel Management Practices
Using Amazon’s Brand Registry is only one leg of the stool to enable you to control your brand on their platform. But it won’t solve all your problems. You also need to establish a set of channel management processes and best practices. This includes creating a well-thought-out resale/distribution agreement that outlines whether or not a reseller can sell on Amazon. There might be specific resellers who you want to sell there, others you may not. This agreement should authorize not only where the reseller can sell your products, but also who they can sell your products to. The challenge for many brands and manufacturers is that they might sell their products to a reseller or distributor, who then turns around and sells that product to 20 other resellers. To control this, your distribution agreement also needs to contain language that holds the primary reseller (the one that purchased from you) accountable for the actions of the resellers that buy from them, including limitations on Internet and Amazon selling.
It’s also a good idea to develop a “minimum advertised price” (MAP) policy, that prohibits resellers from selling your products below a set price. If you find a seller on Amazon with your products listed below that price, there’s a good chance they’re either unauthorized to sell your product or they’re counterfeiters. Good channel management practices, backed up by a solid reseller agreement, are a key tool in managing how your products are represented on Amazon.
These agreements and policies (MAP and distribution policies) can be complex legal documents. We recommend consulting your legal council to set these up (and Enceiba can help – we have some very capable and reasonably priced law firms we’ve worked with that are experts in this area).
Step 5: Monitor and Enforce Your Brand Policies
Even once you’ve completed all the steps above, you need to enforce your brand policies. This includes monitoring Amazon regularly, issuing counterfeit complaints to Amazon, and sending cease and desist letters to anyone who violates your trademark or breaks your resale agreement and MAP policy. You need to be prepared to stop selling to a reseller if they violate your agreements, and you may even need to take legal action. Luckily, these issues typically do not escalate to this level. The majority of bad actors will back down and simply move on to take advantage of other brands that are not as proactive as you are.
Step 6: Create Material Difference in Your Product
One final ‘insider tip’ to managing your brand on Amazon is to create a “material difference” in your product between sellers that are authorized and those not authorized to offer your items. A key way to create this difference is to offer a manufacturer’s warranty that is only in effect if the seller offering your product is authorized. If an unauthorized seller attempts to offer your product on the marketplace, they are in effect selling a different product. With this “material difference”, you create a legal means to compel Amazon to tell you who is selling your product and also provide an additional basis to pursue counterfeit claims. And once you know who a seller is, you can pursue legal action if necessary.
If this all sounds like a lot of work, it’s because it is a lot of work to protect your brand on Amazon. Together with our expert legal partners, Enceiba now offers Amazon Brand Management, wherein we help brands establish a world-class presence on Amazon while eliminating unwanted resellers and providing ongoing monitoring to ensure your products and brands are being presented according to your high standards.
Want more information about protecting your brand on Amazon? We can help. Feel free to reach out to us at email@example.com. We would love to hear from you!