Protecting Your Brand on Amazon
Success on Amazon is both more accessible and more precarious than ever before. Many sellers dedicate enormous energy to sourcing, listing optimization, and marketing, yet overlook the legal infrastructure that ultimately determines whether their business will endure or collapse when challenged.
In a recent podcast episode of Ecomcy hosted by Vincenze Toscano, guest Jeff Holman discusses questions of brand ownership, patent protection, and infringement exposure, and other aspects of Amazon selling.
Trademarks and Patents: Different Tools, Different Timing
Amazon sellers often ask whether they should secure a trademark or a patent first. The answer depends on what they are protecting and how they plan to bring the product to market. Trademarks protect a brand’s identity, which includes names, logos, or symbols that help consumers distinguish one seller’s goods from another. Patents, by contrast, protect the substance of the product, such as its structure, function, or ornamental design.
With patents, timing can be unforgiving. In many jurisdictions outside the United States, public disclosure or even early sales can eliminate patent rights altogether. Although U.S. law provides a limited grace period, international rights often vanish the moment the product is offered to the public. Sellers with genuine innovation must therefore secure patent filings before launching, or they risk losing protection entirely.
Trademarks operate on a more flexible timeline. Sellers can begin selling under a proposed brand while pursuing registration, provided they first confirm the name does not infringe existing rights. Unlike patents, disclosure strengthens the trademark application because evidence of commercial use is a requirement for registration.
Utility and Design Patents: Choosing the Right Weapon
Patents come in two primary categories, each serving a different strategic purpose.
A utility patent protects how a product functions or is structured. It is broad in scope, more costly to obtain, and more difficult to enforce, but it provides powerful, long-lasting protection against competitors.
A design patent protects the way a product looks. These are easier and less expensive to secure, but generally narrower in scope, allowing competitors to create similar alternatives with modest changes.
For sellers introducing a high-value or highly innovative product, pursuing both types of patents may provide the strongest protection, however, it is an investment that must be weighed against financial realities.
Budgeting for Legal Protection
For Amazon sellers, the hardest part of protecting intellectual property is often not deciding whether it matters, but determining how much to invest and when. Patents and trademarks require meaningful resources up front, often before a product has generated revenue. Unlike marketing campaigns that can be tested and adjusted, these filings are speculative investments, demanding commitment before the market has validated the product.
The practical approach is prioritization. A seller does not need to pursue every available protection at once. Instead, identify the highest risks and allocate resources strategically. A trademark may be the first priority for a brand-driven business, while a novel design or function may justify an early patent application. Since international protection can quickly become cost-prohibitive, sellers should focus only on the jurisdictions most relevant to their manufacturing and sales strategy.
Navigating Global Risk
E-commerce is inherently global. Products may be designed in one country, manufactured in another, and sold across dozens of jurisdictions. Each link in that chain introduces risk, and intellectual property rights are not automatically transferable across borders.
Patents and trademarks are territorial. A U.S. patent does not provide protection in China, and a U.S. trademark registration has no effect in Europe. Ultimately, sellers must choose which markets justify the cost of protection. Even global corporations with extensive resources protect selectively by focusing on jurisdictions with strategic value.
The Role of Contracts
Intellectual property rights are powerful, but they are not a substitute for sound contracts. Vendor agreements, distribution arrangements, and partnership contracts govern the day-to-day realities of doing business. Without carefully drafted agreements, even the strongest patent portfolio or trademark registration may prove useless.
Consider the supplier relationship, for example. If a manufacturer holds too much control over production without clear contractual limits, the seller risks dependency that can quickly turn exploitative. Similarly, poorly structured distribution agreements can lock sellers into disadvantageous terms or expose them to liability for another party’s conduct.
Well-drafted contracts establish clear expectations, allocate risk, and provide enforcement mechanisms before disputes escalate into existential threats. When combined with thoughtful IP protection, strong agreements form a comprehensive foundation for sustainable growth.
Scaling Safely
The lesson for Amazon sellers is this: legal infrastructure is not an optional layer to be added after success arrives, and it is a core component of building a business capable of scaling.
Protecting a brand involves more than filing a trademark or patent application. It requires aligning legal decisions with business goals, making calculated investments in protection where they matter most, and strengthening the relationships that underpin operations. The consequences of neglect (lost accounts, frozen inventory, stolen ideas, etc.) can dismantle years of effort in a matter of weeks.
Sellers who approach Amazon with the same sophistication in their legal strategy as they do in their marketing strategy are the ones best positioned to endure. In a marketplace defined by volatility, sustainable growth belongs to those who invest in legal foresight as deliberately as they invest in sales.
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*Disclaimer: This content is for general informational purposes only and does not constitute legal advice in any jurisdiction or create an attorney-client relationship with any attorney or law firm, including Intellectual Strategies. This might include legal advertising for applicable jurisdictions. Any discussion of past results, strategies, or outcomes does not guarantee similar results in any future matter. The views expressed do not necessarily reflect those of Intellectual Strategies or any affiliated organizations. Listeners, viewers, and readers should consult a qualified attorney for legal advice specific to their situation.
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