How to Protect Your Brand and Set Yourself Apart from Other Sellers
When selling on Amazon, it’s important to abide by their rules. You have to comply with Amazon’s Intellectual Property Policy for Sellers to be able to sell your products. Compliance with all federal, state, and local laws and Amazon policies is required. And violating IP rights of brands or other rights owners may result in loss of selling privileges or other legal consequences.
This blog will help you understand what intellectual property is, the various branches of IP, and the importance of protecting your intellectual property when dealing with e-commerce marketplaces so you can rise above your Amazon competitors.
The Four Types of Intellectual Property
- Copyright – This type of intellectual property is given to someone who creates an original work which they authored – like a book, poem, song, or movie. According to the Copyright Alliance, these rights include the right to reproduce the work, to prepare derivative works, to distribute copies, and to perform and display the work publicly. This is especially helpful when you sell a book or an e-book on Amazon.
- Trademark – This is your brand on Amazon. This will help differentiate your products from your competitors. These are words, phrases, symbols, and/or designs that are used as “source identifiers”. This means that brands want the consumer to think about their brand first when they see a certain word, image, or slogan.
- Patent – A patent is an exclusive right granted for an invention. According to the WIPO, a patent provides the patent owner with the right to decide if the invention can be used by others. This will protect your inventions when you sell them on Amazon.
- Trade Secrets – Trade secrets are rights on confidential information or company secrets. For the information to be classified as a trade secret, it must be commercially valuable, only known to a few individuals, and there must be steps taken by the owner to keep the information as a secret. An example of this would be KFC’s secret spice recipe or Coca-Cola’s formula.
By applying for a trademark, you are essentially preventing competitors to use your brand and competing listings to sell products with your trademark. This can also help stop competitors from trading off a brand that’s been gaining popularity.
Within the umbrella of the trademark, there are a few subcategories. The first being, word mark which means that this protects the actual word or phrase being used by a brand. There is no color, no font, and no style. Another is the design mark or the logo itself. Lastly, trade dress which means the overall appearance of the product or service.
It’s better practice to have your first trademark be a word mark since it offers the broadest protection. Once you trademark the word itself, you can write it in any font and use any color. Logos on the other hand, usually undergo different changes so it’s best to protect the actual word or phrase first.
Understanding the Strength of Trademarks
The public needs to be able to distinguish the mark associated with your product from your competitors. The trademark becomes stronger when it’s more distinctive. A mark is recognized as a trademark and can be protected only when it’s distinctive. The list below shows how strong a trademark is from weakest to strongest.
- Generic – Generic marks make use of common words or descriptions of products or the seller. You might not be able to register it because these are everyday terms that everybody has the right to use. For example, if you decide to use the word “tee” for a t-shirt brand, then it would be too generic. It would prevent other people from using that word for their own products.
- Descriptive – Descriptive marks use terms that describe the merchandise or service they are selling. These can be words that describe the color, smell, or texture of a product. For example, using the term “soft” to describe a blanket. It can be protected but only when you can prove its distinctiveness. Typically, the mark must be highly utilized in commerce for a minimum of five years before it will acquire any kind of distinctiveness.
- Suggestive – Suggestive marks register words that imply qualities or attributes of a product without necessarily relating to it in a literal sense. For example, using the term Greyhound for bus services and the term Netflix for an online streaming platform. It requires some sort of imagination from the consumer and the public to realize that this brand name is affiliated with a service or a product.
- Arbitrary – Arbitrary marks use words or phrases from the vernacular in an uncommon way. These words should be unrelated to the products that they represent. Apple is a good example of this. The brand is named after a fruit however, the company sells electronic products. Another example is Tesla which is named after a famous scientist, but the brand sells electric cars.
- Fanciful – Fanciful marks make use of made-up words or a new word that does not currently hold any meaning to the general public. It is also less likely for someone to use these terms to describe your particular good or service. Xerox and Kodak are good examples of this.
One way to make your brand distinct is to focus on the Trade Dress. As mentioned earlier, trade dress is the overall appearance of a product or service. For a product, trade dress may be the packaging, the displays, and even the design or configuration of the product itself. For a service, it may be the decor or environment where the service is provided. This makes a brand distinct and separates them from its competitors.
Requirements for a Trade Dress
A trade dress must be both distinctive and non-functional. The functional aspects of trade dress can’t be protected under trademark law.
Nonfunctionality Requirement
Under the utilitarian functionality doctrine, a product feature is functional if either: the feature is essential to the use or purpose of the product or the feature affects the cost or quality of the product.
Distinctiveness Requirement
Inherent Distinctiveness means that the trademark is so unique that it can act as a distinguishable identifier from other sources of goods/services in the marketplace. Only product packaging and sound marks can be inherently distinctive.
Acquired Distinctiveness is also known as secondary meeting. It implies that the mark has gained significance among the public that the primary significance of the mark is to identify the source of the product rather than the product itself. It is also determined by the length of time the mark is being used and the exclusivity of use.
Examples of Trade Dress
Product Design or Configuration
- Christian Louboutin’s red bottoms
- Coca-Cola bottle shape
- Jack Daniel’s square-shaped bottle
Product Packaging Examples
- Jack Daniel’s “Old No.7 Brand Tennessee Whiskey” logo
- Levi’s Jeans “This is a pair of Levi’s” on the pocket print
- Maker’s Mark signature red wax seal
Nontraditional Trademark Examples
- In-N-Out Burgers’ interior design
- MGM’s “lion roar” for motion pictures and related services
- Grendene’s “bubblegum scent” for their shoes, sandals, flip flops, etc.
A trademark indicates the source of your goods and services and distinguishes them from the goods and services of others. Here are some pro tips about trademark protection:
- Trade dress should accompany a design patent
- Consider product packaging first since it can be “inherently distinctive”
- Trademarks are an investment
- Integrate the Trade Dress conversation at the product development stage
- Use inspiration from major brands to create your own trade dress
Benefits of Registering to the USPTO
Registration with the USPTO provides official documentation and the legal presumption of national ownership of a trademark. The concept of a trademark as a commodity that holds value is an important part of the benefits of registration.
- Exclusive right to use your mark nationwide
If you only have common law rights, meaning it’s not yet a registered trademark, then you’re limited in geographic scope to where you’re allowed to use that trademark and that’s where you’ll have protection. - USPTO registrations can also be used as a basis to expand to other countries and to expand to international arenas.
- The registration notice is usually published in gazettes to give the public notice of new trademarks.
- Indefinite use of the trademark as long as you complete maintenance documents and continue using it in commerce.
- If you have a trademark with the USPTO, you can apply to US Customs and Border Patrol so that any unauthorized shipments to you can be confiscated or destroyed
Summary
As an Amazon seller, trademarks are an essential part of your business. Your trademark is the face of your business and it represents your reputation. Having one means that you’re making it easier for your customers to tell the difference between the products and services that your business offers and what other businesses offer. A registered trademark is something that investors and lenders and franchisees look for. It shows that you are serious about your brand and that you want to grow your business. By registering on Amazon Brand Registry, you will be able to have more control over the products you sell on Amazon as well as the content on the detail pages.
