EP #314] [ENG] - Importance of trademarks and patents to protect your brand - CJ Rosenbaum

EP #314] [ENG] - Importance of trademarks and patents to protect your brand - CJ Rosenbaum Unknown Speaker: Welcome to The Ecommerce Lab By Ecomcy. This is the place for everything related to Amazon Private Label and eCommerce. Learn exactly what you need to start or scale your business. Get insights from the top industry experts who will discuss the latest trends and best practices in the world of Amazon. From choosing products and sourcing from a supplier to setting up your Amazon account and marketing your business, you will hear it here. Let's get started. Here is your host, Vincenzo Toscano. Speaker 2: Hello, guys. Welcome to another episode of The Ecommerce Lab By Ecomcy, the place where everything related to Amazon FBA, private label, and e-commerce. My name is Vincenzo Toscano, founder and CEO of Ecomcy, and today we bring you another special guest. His name is CJ, and he's the founder of everything that specializes in effectively suspensions and legal things at BrandProtectionAmazon.com. This company, I was speaking to CJ, they are the best at what they do and it's everything that has to do with Protecting your business from Amazon, which we know Amazon is always here to try to pretty much take advantage of you. So hopefully on today's conversation, we're going to be talking about some of the latest things that have been happening around resellers or how to make sure you can protect your brand from them. And other things that are happening in this space when it comes to that. So, CJ, it's a pleasure to have you on the show. Thank you so much for coming. How are you doing? Speaker 1: I'm doing great, dude. I'm excited to have this conversation with you. Thank you for having me on The Ecommerce Lab and I'm ready to rock and roll and share what I can. To help people and companies that are selling products on Amazon and also those of you who have distribution rights for big brands on Amazon. We have both sides of the fence. Speaker 2: Love it. So I guess let's start with a quick intro by yourself. I mean, you have such an amazing background when it comes to, you know, supporting Amazon sellers. So tell us about you, the company, and then, of course, we can dive deeper into the topic. Speaker 1: Yeah. Well, we are the number one firm in the world when it comes to helping individual Amazon sellers, large and small, get your accounts back and get your listings back. That's what the firm was built on, amazonsellerslawyer.com, and I've got the greatest team. I mean, we're the best because of the team behind me. Vin Famolaro, Rahul Farha, my partner Rob. There's about 30 of us now. And the team really is what drives our endless successes for Amazon sellers. In around 2017, 2018 or so, what Amazon sellers started to do was to try and get exclusive distribution rights to sell branded products on Amazon so that they can get all the sales and control the pricing. And only a handful at first were successful. Some of those people are our clients. So that's what then led us to what's called Brand Protection Amazon, where we help sellers who have distribution rights to big brands stop unauthorized sellers. Okay, so I recognize baby, we are on both sides of the fence. We're the best at what we do at both helping sellers and also helping those who have distribution rights to brands. And those are the two, The two things I'm most excited about. Speaker 2: Yeah, love it. I think that's, you know, the perfect, essential focus I want to have on today's conversation, which is everything when it comes to, you know, having exclusivity deals, when it comes to distribution and how this is being, you know, getting tougher and tougher when it comes from the Amazon side of things. And also on the other side of the coin, like also if you have a brand, you don't want certain sellers to be selling your things without your authorization. So tell us, like, what has been going on lately with Amazon and how Amazon is effectively, you know, maybe supporting you along this journey, because it seems so far that they're clearly not. That's where experts, like I said, have to come on board and make, you know, the magic of supporting the business. But tell us more about that. Yeah. Speaker 1: Well, I see Amazon. Amazon just created the playing field. They built the stadium for you to access hundreds of millions of consumers, right? And then it's all about making money. Amazon wants to make as much money as possible, which means charging sellers as much as they can for storage and fees and pay-per-click and all that stuff. But they built the stadium for you. You would not be competing unless Amazon created this ecosphere. So I think it's not the big, bad, you know, Death Star, right? But it's pure analytical data-driven business. That's what it is. And what's been going on lately is that there's certainly a consolidation as to the number of sellers, and you got to increase your game and get better and more efficient. But it's still I still think it's the number one opportunity in commerce anywhere in the world right now. Speaker 2: I agree. So now I think something I've been experiencing a lot, and I'm going to start now from the perspective of, you know, brands are being suffering, you know, from all these things that you just mentioned, specifically the lack of protection that some of these brands are experiencing on the platform. You know, having people that without your authorization and effectively selling your product and you just, you know, struggling throughout the means that Amazon provides you. To enforce some kind of protection to remove these people effectively from the platform. So I'm sure you're experiencing this with your clients as well. And I'm sure you have also, you know, uncovered the best approach when it comes to combat that. So what has been your advice when it comes to people that come to you experiencing that? In the way of the best approach to navigating decision. Speaker 1: Okay, so it all boils down to, and it's the same information for brands as it is for sellers, okay? It all boils down to this in the United States, right? Do you have the right to sell the brand's products, right? Or if you look at the other side, does the brand have the right to stop you from selling its products? And that boils down to a body of law in the United States called the first sale doctrine, first sale doctrine. The brand's goal is to take the sale of the products outside the first sale doctrine. The individual seller's goal is to make sure it is inside the protections of the first sale doctrine. So what does it mean? It boils down to That what the consumer receives. Okay. So when you buy a product it has certain benefits, right like a warranty customer support if there's a recall getting that notice coupons or first your future purchases, right? So if the consumer is getting all the same benefits right that From an unauthorized seller versus the brand, then you are protected as a seller and the brand is impotent. They can't stop you, right? On the other hand, if the brand works something into those benefits that unauthorized sellers can't provide, Right. Then the brand can take it outside those protections and the brand can stop you. Right. So if you're a seller, you want to make sure before you dump, you know, tens of thousands or hundreds of thousands of pounds, euros or dollars into a product. Right. That the sale of that product is inside the first sale doctrine. The consumer is getting all the same benefits and you're safe. If you're a brand, right, you want to focus on making something in the benefits that an unauthorized seller cannot possibly provide. Okay, and I got a great example, okay? Speaker 2: Yeah, I was gonna ask you that. Speaker 1: There's a really fancy steak knives, cutlery, woo stuff. It's a German brand, right? If you spend money and you buy one of their knives and something goes wrong with the knife, like it becomes loose or whatever, Wusthof, their warranty says they'll take the knife, they'll send it back to Germany to have it repaired at the factory, right? If you are an unauthorized seller, you don't have access to that factory. That's it. Sales are outside the first sale doctrine. The brand can stop them. Okay, just one example. It almost always boils down to the warranty. And that's really, I would say, new sellers, kind of middle level experience sellers. Look at the warranty of the product that you're investing in and see if you can match it word for word. Look at that guarantee. Boom. Go for it. Right? Speaker 2: Yeah. I was going to actually mention that this could be a very interesting actual criteria for product research because a lot of people are looking for brands to distribute or represent. I've never heard they actually check on these criteria. Like, can I actually fulfill what the brand is promising in terms of after the purchase and anything? And that's where a lot of people come into, you know, the trouble that we're actually discussing right now. So that's a very good insight you're sharing with us today. Yeah. Speaker 1: You know, I would fine tune it a little bit, right? So if you're using like a Google sheet, right, or a spreadsheet or whatever, and you have the list of things you're looking at, I would add two things to it. Number one, is the brand trying to stop sellers? Because you don't need the complaint against you. You don't need the IP, the rights owner complaint. And then number two, can you deliver everything the brand delivers? Let's say there's a huge profit to be made, but the brand is giving people a hard time. Well, look at the warranty. If you can match it, then jump in. Speaker 2: Yeah, now something I'm also experiencing with Amazon, I'm sure you're also seeing this with resellers specifically, Amazon is getting to the point that it seems like they don't really want resellers on the platform anymore. They're making things more either working directly with the brand, or they're going directly into the vendor program, like they're making things very tough for you to get ungated or approve invoices to get ungated for certain brands. So do you feel with everything you're experiencing with your clients, that's where Amazon is transitioning into, to a point that the reselling business is kind of dying a little bit in the Amazon kind of world, right? Speaker 1: Yeah, I have to say the answer is yes. OK, so if you go back in the history of Amazon, Amazon built its business based upon third party sellers, its warehouse system, the ability to have every product on earth. They built it on third party sellers. Speaker 2: Right. Speaker 1: When the pandemic hit. The number of brands seeking to control who sold their products since all brick-and-mortar retail was closed down, it started increasing exponentially and it's continued. Now, Amazon's vendor system, Amazon would always compete with sellers. They see where the markups are and they would screw you over. Use your own data to steal your sales. But now we're seeing a huge increase In the number of brands that Amazon is giving extra protections to, the addition of all the tools and brand registry, and there's certainly a consolidation. I believe that Amazon strongly prefers for its consumers to buy directly from the brand or the authorized sellers. And there's going to be continued consolidation. It doesn't mean there's still not millions and millions and millions of dollars to be made. It's still a huge blue ocean. OK, so I still encourage people to sell on Amazon. We just got to be a little bit more careful, a little more thoughtful. Speaker 2: Yeah. Now, with all the things that you're going through, especially in 2025, with clients experiencing, you know, suspensions and kind of legal battles in the Amazon space, like, what would you say beyond this conversation we're having about resellers and exclusivity of brands? Is there a second thing that you'd like to bring to the table in terms of issues that you see sellers experiencing more than ever in 2025? Is there some specific thing you have identified that you'd like to point out? Speaker 1: Yeah, I would stress to sellers to get distribution rights to brands. As you learn more, as your capabilities increase, as you get better and better, approach the brands whose products you're already selling I need to try and get on their list to be one of their authorized sellers or try and get the exclusive sellers, the exclusive distribution rights, right, which is harder. And for each seller might be different, right? Like, you know, the newer sellers have been selling for like a year. You know, you're not going to go to J&J or Procter & Gamble and say, let me sell your products. But there are tons and tons of smaller brands and health and beauty and pet goods and outdoor in Baby products, right? Where you can go to the smaller brands at the trade shows and try and become their Amazon person. Hardware. I went to the Ace Hardware Show in San Antonio, maybe a month or so ago. I mean, there was like 800 different brands there. I mean, it was huge. So I would still I would go forward. But also, if you get a great deal on a pallet of products, check to see if the brand's given anybody a hard time, check the warranty and then jump in and sell. The goal is to make money. Speaker 2: Now, in these distribution agreements you encounter in terms of exclusivities, there's some clear kind of maybe language or mention that has to be put in place to make it, I guess, Amazon friendly, because we know Amazon is requiring certain documentation the moment that something goes wrong. And they have certain ways of wanting things to be presented for them to make an exception or allow you to do certain things within the platform, like getting un-gated and all of that. Going back to my question, like with this exclusivity agreements, is there certain things that have to be done differently for Amazon when you're working with these brands? Or it's pretty much as you will do for any other distribution channel? Speaker 1: You know, it's a great question. Since we are so geared towards people and companies selling products on Amazon, Let's say you went out and you picked up a brand of pens, Sharpie, and Vincenzo now has exclusive distribution rights to sell Sharpie pens. We could get a draft agreement over to you in about 15 minutes. And our agreement would clearly satisfy what Amazon wants because we kind of built it around that. So if you're doing it yourself or using a lawyer or a law firm who's not so experienced with Amazon, I'd probably say you're making a mistake. Because number one, if they make it Amazon compliant, it's going to take them more time, right? And number two, they might give you something that's not compliant. So if you're in that position, and you've now made the deal, and you just need the contract, you'll get in touch. At the end, we'll give you the email address and the phone number and the website. But since we've done, I can't even tell you how many of these things, it's really a really quick process for us to provide that agreement for you to then get over to the brand. Speaker 2: Cool. Now, another thing I wanted to bring to the table is infringements when it comes to potential patents and trademarks. This is something that's becoming a bigger and bigger issue in Amazon, right? We have a lot of clients that they have a very successful brand. They have a very successful product. And so in the encounter themselves, people from China copying the product, pretty much exactly the same, selling the product on Amazon. And we know that even if sometimes you put them through brand registry or escalated, sometimes the seller just don't get removed. You know, it takes a lot of Back and forth, and we know already the deal here. So I guess what I'm trying to get with this is like, how are you handling these things with your clients? Because it seems like Amazon on paper says that they're going to protect you if you have the patent or the trademark, but it's very slow when it comes to taking action, which sometimes translates in thousands of dollars being lost on sales because people are buying old products that resemble the same product you invented, you came up with a unique brand. So what is your advice on that? Speaker 1: Okay, so if your product really is different than what the Chinese are doing to mimic your product, For us, it's very easy to protect your sales and get rid of them. You have to have the intellectual property rights and a lot of sellers don't. But if you have them, there's really no reason why there should be any significant problems removing the infringers. But that means you have to have the IP rights. Your product has to be different. Okay, and the people having that trouble just don't know what they're doing in terms of handling it. So like listen, I don't know how to sell products on Amazon. I don't. Okay. I'm not good. Like I go to I've been to hundreds of trade shows and the only thing I think that I've picked out that I thought was gonna blow up, right, were these bone conduction headsets. So you guys have the ability to pick products, you have the ability to get traffic, you have the ability to create good listings. Our expertise, or not our expertise, I gotta use different words for various legal reasons. Our focus is on protecting what you develop, right? So I don't do my own plumbing repairs. I'm not an electrician. So I hire someone to do that stuff. And that's what your people should be doing. If they're having a significant problem and losing money to infringers, get in touch, okay? We have, and it probably won't continue, but it's been many, many years now. Practically a 100% success rate protecting your intellectual property rights because you're a brand. If you're having this issue, get in touch. The second thing you need to be aware of is that If you really don't have an intellectual property right to protect, and a big thing used to be like safety goggles, you know, if you're working with tools or woodwork, those plastic goggles that are clear, and people would sort of slap their brand on it and think they could stop the other sellers or the silicone gloves for lifting hot pans. Speaker 2: Commodities. Commodities. Speaker 1: If it's a commodity, there's nothing you can really do. It's a commodity. Your safety glasses, your silicone gloves are no different than the Chinese who are making it better and cheaper than you. And now you got to move on to something else. Speaker 2: Yes, yes. Which now brings me to my next question, which is, you know, when it comes to patents, usually people go down the route of design patent because much more I'm here to talk to you about how to make your business easier than a utility patent. But I've been hearing lately that it's not as easy as it used to be when it comes to enforcing it. So just high level, is this something you're also experiencing when it comes to design patent? Because at the end of the day, people can get very easy around that design patent and just keep selling the same thing as you. So what is your experience with that, for example? Speaker 1: All right, so it's been just about 10 years And our effectiveness, our efficacy is the same. So here's the story with design patents. They are much easier to get. They are much faster to get. And number three, they are much cheaper to get. The way that your competitors are getting around your design patents are by changing the product a little bit. We used to have a huge seller of diaper bags, right? And so you'd have a diaper bag and there's a middle section for the clean diapers, a sealed section for the dirty diapers, a section for the bottles with, you know, cooling things and keep it warm. Right, and the straps were wide and narrow and padded and whatever and they'd see a successful diaper bag. They'd add an extra pocket or a zipper. It's a different design and that's it. You don't have protection anymore, right? So with the design patents, The effectiveness is the same. If the product is, if your design is being infringed upon, we can stop the infringer. But if they've changed it, then we really can't. And it boils down to a legal test called the Egyptian Goddess Test. And what that really says is this, if it looks like a duck and it quacks like a duck, it's a duck. Speaker 2: That's it. Speaker 1: That's the whole test. It sounds funny, but that really is the test. So if the product is the same as yours, we can stop them with your design patent. But if they changed it by adding a pocket, a zipper, a pad, making it bigger, smaller, whatever it is, then your design patent no longer applies. But nothing has changed. We are just as effective as we were 10 years ago or about 10 years ago as we are today and tomorrow. Cool. Speaker 2: Now, another thing I want to bring to the table, cease and desist letters. This is something that, you know, Amazon sellers love because I always have this conversation with sellers. As soon as something goes wrong, they think a cease and desist letter is the solution. They just go into offensive mode and just try to hopefully that's going to make the trick, right? But we both know, especially Chinese sellers, they don't really care about cease and desist letters anymore to some extent. They don't care at all. Yeah, come and find me, right? Come and find me. Yeah, yeah. So tell me how now we get around this because they don't really care about the cease and desist anymore. What is your experience and are they actually effective anymore? Speaker 1: So it really depends on whether you have the ability to really stop them. And also who is sending the letter? Has a great effect, right? So Voorhees is a law firm here in the United States. Their office is in Cleveland, Ohio, which is sort of the middle of the country here. And they were sending like hundreds and hundreds and thousands and thousands of the same exact four page, eight paragraph letter. And I used to tell sellers to throw them in the garbage, right? And then I get a call from one of the lawyers over there and he's all upset. What are you doing? Why are you telling them to throw our letters in the garbage? And I was like, well, because you guys don't do anything, right? So then, VORYs, from time to time, will actually start a lawsuit, okay? It's pretty rare of what they do. So here's what sellers should do. If you receive a C&D, okay, you should analyze it. Almost always, the first seven claims are all bullshit. Sorry about the profanity here, but I'm gonna tell you, okay? But that last claim in the Vorhees letter that says that you might be interfering with a contract between the brand and an authorized seller, that claim usually has some validity or some merit. So you can look at your product, analyze the claims. Number two, for that last claim, write back to the lawyer and say, I received it. I take it very seriously. Our products are not counterfeit and I want to see a copy of the contract between the brand and the seller so I can see with my own eyes and then see what they send back. Okay. Speaker 2: Most of the time they don't. Speaker 1: Most of the time they send nothing. And if they don't show you that there's a contract, then their claim cannot be enforced. And it's a whole legal thing behind that. That's how you respond. Okay. Now, if you are the person sending the letters, right, make sure you're right. And I would send specifically, you can't sell my branded product for these reasons. Okay, and then identified very clearly. And if you do that, your letters may have some effectiveness. Our letters, we usually run a 70 to 80% effective rate in terms of stopping unauthorized sellers when we reach out to them. Okay, so we represent Manic Panic, for example. It's a hair dye company. The founders are these brilliant, brilliant women who started the company decades ago. When we reach out to a seller and we tell them why they can't sell, they almost always stop selling. And if they don't, then we make complaints about them. We knock them off. So if you're sending these letters yourself, no, don't send a bullshit generic letter. Identify the legal reason why they can't sell your products and you'll have more success. Speaker 2: Cool. And now, last question I wanted to ask you and then to come to a closure. This is a problem that I've been hearing more lately for some reason. And I know it's not that new program, but it's becoming more commonly known, which is Amazon Apex have a program, you know. Which is everything to do with patents. Just given that you specialize on that side of the field, do you have an understanding if this is really a program that people should sometimes pursue or is not advisable when it comes to patents? What's your recommendation with that? Speaker 1: It's a great program that Amazon developed. Also, unfortunately, I'm not even allowed, even though it's all that 30 people that work for me do is focus on Amazon. We're not allowed to call ourselves specialists. That's what we focus on, right? So if you have a utility patent, excuse me, the APEX system is really great. It is fast, it is cheap, and it's effective, okay? Now, If you are being accused of violating somebody else's utility patent and they file for Apex, right, you do the analysis. And if you're not violating, then you oppose it. But it's a really, really great program that Amazon developed because it's so much faster and cheaper than going to court. And if all your money is being made on Amazon, that's really where you want it to work, right? So if 90%, 95% of your money is coming from Amazon, you don't need to go to court. Use Amazon's own system because it's faster and cheaper. Speaker 2: I think, CJ, the conversation today has been amazing. Thank you so much for all the insights. I know we're only scratching the surface with this topic. There's so much more we can talk about, but I'm sure some people want to reach out, have a deeper conversation with you and explore your services, so I hope people can find you. Speaker 1: Okay, the best way to get a conversation going is to go to our website amazonsellerslawyer.com and there's a big case submit button. You put in your name, your number, your email, right? And then you get a call back for either me or a member of my client relations team. You can also email me, cj at amazonsellerslawyer.com. Sellers is plural, lawyer is singular. Okay, and listen, not only my old, I am old school, you can also call the telephone. You know, I think US is 0-1. You know, that's 2-1-2-2-5-6-11-0-9. But with the time zone differences, submitting your case at amazonsellerslawyer.com is probably the fastest way for us to get on a call. Also, I'm gonna do, I'm gonna ask something of you and your listeners, okay? Yes. So, pandemic is over, man, and I'm spending way too much time at home, okay? So if there's a group of sellers getting together, an event in the UK, please let me know. Get me an invitation. I love learning from sellers just like the people who are watching this, okay? I love to travel and give me a business reason to come to the UK so I can take advantage of Trump's tax benefit and take a nice trip. Speaker 2: Wait, wait, wait. Thank you so much for being on the show, CJ. Pleasure and hopefully see you soon. Speaker 1: Thank you, buddy. Speaker 2: Take care. Speaker 1: Bye-bye. Unknown Speaker: Thanks for listening to The Ecommerce Lab by Ecomcy. Be sure to subscribe so you don't miss an episode. While you are at it, we would appreciate it if you could leave an honest rating and review on Apple Podcasts, Spotify, or wherever you listen. That will make it easier for others to find out about the show and benefit from it. Want more? Visit our website at www.ecomcy.com where you can get your first consultation for free or find us on Instagram, Facebook and LinkedIn at EcomCy.