When we have a brand protection client call the firm, the first thing that we ask them is,
“Do you have any of the following intellectual property rights: registered trademark, copyright, or patent?”
Intellectual property can be broken down into three categories:
– A trademark is the protection of a name, symbol or design which is used to identify source goods or services. A subpart of trademark is trade dress, which is “ the overall appearance and image in the marketplace of a product or a commercial enterprise. For a product, trade dress typically comprises packaging and labeling. For an enterprise, it typically comprises design and decor.”
– Copyright law protects works of original authorship, such as novels, poems or musical compositions.
– Patents provide the protection of ideas such as inventions or technological processes.
A seller does not necessarily have to be registered for a trademark or a copyright, but in terms of enforcing on ecommerce platforms, it is beneficial to have registered rights.
Occasionally, we will get calls from clients stating that someone is not complying with their MAP (Minimum Advertised Pricing), or that someone has joined their listing and they are the sole owner of the listing on Amazon. These are not enforceable complaints; a seller cannot enforce their IP rights with these arguments.
Minimum advertised pricing refers to when a manufacturer tells its distributors and retailers that they cannot advertise the products in their inventory for less than what the manufacturer says. On Amazon, this means that you cannot list the price you want to offer customers.
Amazon makes it very clear that MAP pricing does not constitute intellectual property infringement.
The same thing goes for joining a listing; if you create a listing, you grant a perpetual license for someone to use your images and any words on the listing.
Lastly, enforcing distribution; this also does not constitute IP infringement on Amazon. That is when there are two parties to a contract, you cannot enforce distribution; essentially filing reports and trying to demand authenticity just to make sure that only authorized sellers are selling your products.