Combating Counterfeiters and Listing Hijackers on Amazon: A Brand’s Guide

Introduction

For brands and legitimate sellers on Amazon, the threat of counterfeiters and listing hijackers is a persistent and damaging reality. Counterfeit products not only erode your sales and brand reputation but can also lead to negative customer reviews and a loss of trust. Listing hijackers, on the other hand, are unauthorized sellers who jump onto your legitimate product listings, often selling inferior goods at lower prices, thereby stealing your Buy Box and customer base. Protecting your brand from these illicit activities is crucial for long-term success on Amazon. This article will provide business owners with practical strategies and tools to effectively combat counterfeiters and listing hijackers, safeguarding your brand and revenue.

Understanding the Threat: Counterfeiters vs. Hijackers

While both activities are detrimental, it’s important to distinguish between them to apply the correct defense strategy:

•          Counterfeiters: These are entities that manufacture and sell fake products under your brand name or using your intellectual property (trademark, copyright, patent). Their products are often of poor quality and designed to deceive customers into believing they are genuine. Counterfeiting is a direct intellectual property infringement.

•          Listing Hijackers: These are unauthorized sellers who list their products (which may or may not be counterfeit) on your existing Amazon product detail page (ASIN). They typically offer the product at a lower price to win the Buy Box, diverting sales from the legitimate brand owner or authorized sellers. Hijacking often involves trademark infringement if they are selling a product that is not genuinely yours under your brand name.

Proactive Measures: Building a Strong Defense

The best defense against counterfeiters and hijackers is a strong proactive strategy. Prevention is always better than cure.

1. Secure Your Intellectual Property (IP)

This is the foundational step. Without registered IP, your ability to enforce your rights on Amazon is severely limited.

•          Trademark Registration: Register your brand name and logo with the relevant national trademark offices (e.g., USPTO for the U.S.). A registered trademark is essential for enrolling in Amazon Brand Registry [1].

•          Copyright Registration: Register your original product images, descriptions, and other creative content with the U.S. Copyright Office. This provides stronger legal standing against unauthorized copying.

•          Patent Protection: If your product features unique functional or design elements, consider utility or design patents to prevent others from copying your invention [2].

2. Enroll in Amazon Brand Registry

As discussed in a previous article, Amazon Brand Registry is your most powerful tool for brand protection. It provides:

•          Enhanced Reporting Tools: The “Report a Violation” tool allows you to easily report suspected infringements (counterfeits, trademark, copyright, patent violations) directly to Amazon.

•          Automated Protections: Amazon uses the information from your Brand Registry enrollment to proactively remove suspected infringing content and unauthorized sellers.

•          Brand Store and A+ Content: These features help you establish a strong, unique brand presence, making it harder for hijackers to blend in.

3. Join Amazon Project Zero

For eligible brands, Project Zero offers even more robust protection:

•          Automated Protections: Leverages Amazon’s machine learning to proactively remove suspected counterfeits.

•          Self-Service Counterfeit Removal: Allows brands to directly remove infringing listings from Amazon without contacting Amazon, providing immediate action [3].

•          Product Serialization: A service that allows you to apply unique codes to your products, enabling Amazon to scan and verify the authenticity of every unit sold.

4. Utilize Amazon Transparency Program

Similar to Project Zero’s serialization, the Transparency program adds unique, scannable codes to your products. This allows Amazon and customers to verify authenticity, preventing counterfeits from reaching customers and providing a strong deterrent for hijackers [4].

5. Monitor Your Listings Diligently

Regular vigilance is key. Even with Amazon’s tools, proactive monitoring is essential:

•          Manual Checks: Regularly check your product listings for unauthorized sellers in the “Other Sellers on Amazon” box. Look for suspiciously low prices or poor-quality images.

•          Automated Monitoring Tools: Consider third-party software that can automatically monitor your ASINs for new sellers, price changes, and Buy Box ownership.

•          Customer Feedback: Pay attention to customer reviews mentioning product quality issues or discrepancies, as these can be indicators of counterfeits.

Reactive Measures: Taking Action Against Infringers

When proactive measures aren’t enough, you need to take swift and decisive action.

1. Send a Cease and Desist Letter

Often, a formal cease and desist letter from your attorney can be effective in deterring hijackers or small-scale counterfeiters. This letter puts the infringer on notice of your IP rights and demands that they cease their infringing activities.

2. Report Infringement Through Brand Registry

If you are enrolled in Brand Registry, use the “Report a Violation” tool. Provide clear evidence of the infringement, including:

•          Your registered trademark, copyright, or patent number.

•          The ASIN(s) of the infringing listing(s).

•          Screenshots or photos demonstrating the infringement (e.g., counterfeit product, unauthorized use of your logo).

•          A clear explanation of how the listing infringes your IP.

Amazon will investigate and, if your claim is valid, will typically remove the infringing listing.

3. Test Buys

If you suspect counterfeiting, perform a test buy of the alleged infringing product. This allows you to inspect the product firsthand, gather evidence of its inauthenticity (e.g., poor quality, incorrect branding, different packaging), and use this as evidence in your infringement report to Amazon.

4. File a DMCA Takedown (for Copyright Infringement)

If the infringement is purely copyright-related (e.g., unauthorized use of your images or text), you can file a Digital Millennium Copyright Act (DMCA) takedown notice directly with Amazon. This is a legal notice that compels online service providers to remove infringing content.

5. Pursue Legal Action

In severe or persistent cases, especially against large-scale counterfeit operations, legal action outside of Amazon may be necessary. This can include:

•          Lawsuits: Filing a lawsuit in federal court for trademark, copyright, or patent infringement.

•          Customs Enforcement: Working with customs authorities to seize counterfeit goods at the border.

The Role of Legal Counsel

Combating counterfeiters and hijackers can be a complex and ongoing battle. An experienced Amazon IP attorney can provide invaluable assistance:

•          IP Strategy: Help you develop a comprehensive IP protection strategy, including proper registration.

•          Enforcement: Assist in drafting and sending cease and desist letters, filing infringement reports with Amazon, and managing the entire takedown process.

•          Litigation: Represent you in court if legal action becomes necessary.

•          Monitoring: Advise on or manage ongoing monitoring efforts to detect new infringers.

•          Strategic Advice: Guide you through Amazon’s evolving policies and help you adapt your brand protection strategy.

Conclusion

Counterfeiters and listing hijackers pose a significant threat to Amazon sellers, but with the right strategies and tools, you can effectively protect your brand and maintain your competitive edge. Proactive IP registration, diligent use of Amazon’s Brand Registry and other programs, and consistent monitoring are essential. When faced with an active infringement, swift and decisive action, often with the support of legal counsel, is critical to minimize damage and restore your brand’s integrity. Protecting your intellectual property on Amazon is not a one-time task but an ongoing commitment to securing your business’s future.

Should you require assistance in developing a robust brand protection strategy, combating counterfeiters, or addressing listing hijackers on Amazon, I encourage you to reach out to Yomtobian Law. My firm is dedicated to empowering Amazon sellers with the legal expertise and strategic guidance necessary to safeguard their brands and ensure their continued success in the dynamic e-commerce landscape.

References

[1] Amazon Brand Registry. “About Brand Registry.” Amazon Seller Central, https://brandregistry.amazon.com/. [2] U.S. Patent and Trademark Office. “Types of Patent Applications.” USPTO.gov, https://www.uspto.gov/patents/basics/types-patent-applications. [3] Amazon. “Project Zero.” Amazon.com, https://brandservices.amazon.com/projectzero. [4] Amazon. “Transparency.” Amazon.com, https://brandservices.amazon.com/transparency.