Authored By Haviland Macy Marie Kebler, Esq. & Samantha Pendley
The rise of E-Commerce in the pandemic and post-pandemic periods have sellers looking at ways to protect themselves from counterfeiters and unauthorized sellers. Billions of dollars are generated a year through Amazon.com. Amazon Sellers range from individuals selling and shipping from their garage to Health and Beauty Moguls, such as Pharmapacks. Amazon has become a ubiquitous selling location, both in the United States and Worldwide, thus like other E-Commerce platforms, most Amazon sellers at some point will likely face infringers and counterfeiters.
One past strategy to counteract or address infringers and counterfeiters is setting Minimum Advertised Prices (“MAP”) for your products. MAP is the minimum price a manufacturer sets for their respective authorized resellers. This price is always set by the manufacturer and is federally mandated. Consistent pricing will protect the Brand’s Intellectual Property rights. After MAP is set by the manufacturer, if not enforced, any violations have the potential to lessen the value of the products. It further has the ability to tarnish any relationships between authorized resellers and the manufacturer should the MAP not be enforced. Allowing MAP undercutters to continue selling, may erode the business relationship between Manufacturers and authorized resellers. These unauthorized resellers are often also violating the Manufacturer’s Intellectual Property Rights which can be actionable under Federal and State Laws, including the Lanham Act, 15 U.S.C. § 1051 et seq. and under 35 U.S.C. § 271 in a Court of Law.
Additionally, unauthorized sales have the potential to be counterfeit, defective, or goods sold without important manufacturer protections. When a consumer receives these kinds of goods, they may contact the manufacturer who is caught in a difficult situation, choosing whether to offer customer service on an unauthorized product to ensure positive customer relations. Most brands that sell on Amazon have MAP policies to protect their brand value and profit margins. However, since Amazon does not enforce MAP policies, it has become the responsibility for brands to enforce their own MAP policies. Some of Amazon’s own incentives can even make MAP undercutting more prolific. Incentives like the “Buy Box” and better placement for the lowest priced goods will often show an unauthorized seller that is undercutting MAP in a more prominent place than an authorized seller or the actual manufacturer. With Amazon’s stance of non-enforcement, manufacturers that find unauthorized sellers undercutting MAP must directly contact the sellers using the contact information on the Seller Central Page. Often this is an arduous process with limited success.
As a Seller on Amazon, an additional strategy for brands to enforce their Intellectual Property is through the Amazon Brand Registry. Amazon Brand Registry allows a Seller to register their Federally protected Intellectual Property with Amazon and unlocks a powerful suite of tools that allow for increased control over product detail pages, the ability to provide advanced seller support, as well as open access to advanced marketing and advertising tools for the brand owners. While Amazon Brand Registry does not directly target unauthorized resellers, it can be useful in protecting Intellectual Property and provides easier detection of infringements of Intellectual Property. While policing a brand and enforcing MAP policies may seem daunting, it is an important step to control an E-Commerce business and to protect your valuable Intellectual Property.