There are two questions that I get more than any others in discussing brand protection with prospective clients:
- “When is the right time to engage on brand protection?”
- “Where do we start with this whole brand protection thing?”
With the recent exponential growth of online marketplaces, such as Amazon, and the added fuel of Covid-19 this past year, it’s no surprise that the number of conversations in which these two inquires (or some form of each) are multiplying.
So I said to myself, “Self, why don’t you put pen to paper (figuratively, of course – we have computers at Retail Bloom) and plot out some basic guiderails on these two ponderings?” And here we are.
Let’s take them in order.
When is the right time to engage on brand protection?
… Yes. It’s both that simple and yet, as you may be saying to yourself right now, not at all that easy. While there is absolutely no bad time to set brand protection in place and retake ownership of your brand, there are really two main points in the brand journey at which I typically intersect with a brand and start the brand protection project:
The brand is a medium-sized brand, has been on Amazon for 5 to 10 years or more (either selling 1P, selling 3P, or “not at all” – notice the air quotes – on the marketplace) but has never really “capped” or put restrictions on sellers as it relates to selling online.
In these situations, the brand typically has more than 100 grey market (unauthorized) sellers with their brand product listed on Amazon. There are roughly another 40 to 50 on Walmart, and many more one-off sellers with a product or two on Ebay.
Is this ideal? Of course not. But that’s why I’m talking with them. Also, the question asks what is the right time… not what is the ideal time.
This, and many similar scenarios, calls for brand protection work and sooner rather than later. There is no mess too big to toss a brand protection effort out the window. If the legal foundation of policies and agreements is not laid quickly, the problem will only grow, the number of sellers will increase, and prices will continue to spiral downward until all involved parties are forced to cut and run. It’s basically the opposite of ‘a rising tide lifts all ships.’
The brand is seeing real success either in brick-and-mortar growth or through several key online retailers, and it is starting to see its products pop up through unknown sellers on Amazon, Walmart, Google, and Ebay.
When this happens, with the brand still being a relatively small brand, top brand personnel will begin fielding complaints from its key retail partners. It might sound something like “Why are you selling product X for $17.43 on Amazon? I have to charge $19.95 just to make keystone.” Or “Why are you saying MSRP is $24.99 if it’s for sale online for $18.72?”
This is a much more ideal time to launch a brand protection project: The sales channels are still controllable, the retail partners are few and manageable, and there is less “clean-up” time needing to be invested before ongoing maintenance can be set in place.
I’ll wrap up this portion by just reiterating that “YES” – if you’re wondering if it’s a good time to put brand protection measures in place, it is.
Where do we start with implementing brand protection?
If you’ve cheated and read some of my previous blogs, well, thank you. This should sound somewhat familiar, but worth repeating: It is important to go to the source of the problems and not just treat the symptoms.
The way we start with any brand client is to 1) Complete a brand assessment to get a lay of the landscape, review what efforts have been or are underway currently, and form a brand protection strategy and 2) Create a proper reseller program and accompanying agreements or policies that incorporates the plan resulting from #1.
Typically, 8 out of 10 brands I talk to have tried to do symptom work before realizing it’s both endless and ineffective and initiating a conversation with us is best to get to the roots.
“Symptom work” would include efforts such as MAP (minimum advertised price) monitoring, sending cease and desist letters, submitting Brand Registry or Vero complaints, sending MAP price violation notices, etc. What these all have in common is that, without the proper foundation in place, they are essentially pointless – possibly dangerous as well.
Without the reseller program in place, the MAP enforcement efforts, the “unauthorized seller” removals, and the Brand Registry complaints (absent dramatic infringements such as horribly counterfeits, etc.) here-and-there are without legs.
To provide just a snapshot of this concept—a MAP policy is only enforceable against your brand’s authorized sellers. Now, you may be asking, “How do we indicate who our ‘authorized sellers’ are?” … And we’re back to the reseller program.
Brands must be careful in trying to enforce their trademarks “willy-nilly” (if you will) as the First Sale Doctrine shields sellers generally. If you send threatening letters to unauthorized sellers, they may turn right around and claim business interference, etc. referencing their rights under the First Sale Doctrine.
Two questions should be spinning around in your mind right now:
1) What would make them “unauthorized” (properly)
2) How do we overcome this principle?
… And we’re back to the reseller program.
About The Author
Andy Buss is the Legal & Corporate Development Specialist at Retail Bloom. As both an attorney and an entrepreneur with a background in marketing, Andy provides a unique and valuable perspective when it comes to sustainable brand growth. When he's not sharpening his ping-pong skills in the break room, he can be found tirelessly pursuing the best way to keep brand clients ahead of looming online threats. Be sure to follow him on LinkedIn.
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