Today, Amazon announced that starting September 1, 2020, all Amazon.com third-party sellers will need to provide their actual name and address publicly for shoppers to see. By making the identities of sellers no longer anonymous (with sellers using “doing business as” or “DBA” names), it will be much harder for sellers to conceal their real identities. This development makes it much easier for brands to see the true identities of sellers offering the brands’ products on Amazon (including finding out that retailers, authorized to sell in brick and mortar but not online, have actually been trying to sell online under DBA names – yes brands, some of your retailers have been lying to you all along)
Some brands will get excited about this news, thinking that now knowing the identities of these sellers will make it easier for the brands to go after unauthorized sellers or retail arbitrage sellers. Yet, the news is not all as positive as brands may think:
- The true identities of many Amazon.com sellers have been available to see on the Amazon Mexico website for years. If not there, MAP monitoring companies PriceSpider and Trackstreet have both compiled information huge lists of Amazon.com seller identities. Bottom line – finding Amazon.com seller identities is not as hard as brands may make it out to be.
- Many brands may use this newly revealed seller information to send cease & desist letters to the sellers, seeking to stop unauthorized sellers from selling the brands’ products on Amazon.com. However, most brands don’t have the proper legal foundation to overcome the “first sale doctrine” legal protection that most sellers today have in the US. This federal case law gives sellers – including unauthorized Amazon sellers – the right to resell products without explicit permission from the brand. Yes, a brand *CAN* invest in developing a proper legal foundation around how it protects and enforces its trademark (e.g., through an online reseller policy), so as to eliminate first sale doctrine as the legal protection commonly used by unauthorized Amazon.com sellers.
But most brands aren’t prepared to make these legal investments, or even aware of the specific complexities of addressing first sale doctrine. So, from today’s announcement, Buy Box Experts expects that a number of brands anticipate that they will now be able to file cease & desist letters against these newly unveiled Amazon.com sellers, even though those brands don’t have an adequate legal basis to go after these sellers. Some of the smaller sellers will likely be scared away from selling the brand’s products, but larger sophisticated gray market sellers that know the first sale doctrine law will simply ignore these cease & desist letters, and may even fight back against the brand with a suit indicating that the brand is coming after them with threats that are not legally supported.
The moral of the story is that every brand that cares about controlling who is representing its products on Amazon.com should be:
- protecting its trademark with a well-written and constantly enforced online reseller policy. Talk with an IP attorney that is well versed in online marketplaces.
- avoiding short-cuts using cease & desist letters that aren’t legally grounded
- reading our new book “Controlling Your Brand in the Age of Amazon”, co-written with Whitney Gibson at www.vorysecontrol.com
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