The Nike-Amazon break up and what brands can (and Can Not ) do to Handle Amazon

The late George Carlin said, “if you can not beat them have them organized to be defeated.”

For manufacturers and brands struggling against the growth of counterfeit goods, unauthorized reselling and MAP policy violations on Amazon, providing Amazon directly through Vendor Central and engaging in Brand Registry provides hope Amazon may play enforcer on behalf of trademark owners.

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However, the recent statement that Nike is finishing its two-year partnership with the market shines light on a tough fact: protecting your brand on Amazon remains a challenge — even if you’ve got the clout of Nike.

“The deal was that Nike would sell direct to Amazon in return for Amazon eliminating fake Nike items and stopping unauthorized third-party vendors from selling Nike goods on its website.”

While Amazon doesn’t measure up to play enforcer directly (and obviously fell short of Nike’s expectations), it’s made many tools available to manufacturers seeking to win back some control over the market. But are they enough? What do manufacturers and brands will need to know about protecting trademarks, enforcing MAP pricing, combating counterfeits and plugging leaks in the distribution chain?

How manufacturers lost control

Bullet-tight wholesale and supply contracts have not prevented branded merchandise from popping up on online marketplaces. Normally, Amazon permits third party (3P) vendors to attach their stock to ASIN (Amazon Standard Identification Number) product pages provided that the products are authentic.

The frustration for brands is a lot of Amazon seller accounts are unidentifiable, with mysterious seller names such as Time for Bargains and ECommerce Distributors. They can not readily be identified as authorized retailers, nor can their wholesale or supply sources be tracked by brand owners.

A snapshot of some of those third party vendors list men’s Nike running shoes on Amazon

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The Issue of”leaky supply”

Although some sellers acquire goods through retail arbitrage (purchasing through retail channels or outlets and reselling online), 3P sellers can obtain product through”grey market” distributors who purchase closeouts from legitimate retailers and wholesalers. Per Amazon policy, such wholesalers must list these items as”Employed” (legal by first-sale philosophy ), but many will record as”New” for greater visibility and a opportunity to win the Purchase Box.

Distributors may wittingly or unwittingly provide 3P sellers. Authorized retailers may set up an Amazon account to move or transparent stock faster than they could sell in shop, using vague handles and different bill-to/ship-to addresses than their licensed accounts. Some view this strategy as”fair game” once merchandise from a given manufacturer is already listed on Amazon — particularly if it’s selling below MAP (Minimum Advertised Price).

Why Amazon won’t apply MAP

MAP agreements are created between manufacturers and licensed sellers. Since Amazon isn’t party to such agreements, it won’t intervene or apply MAP pricing on third party sellers. Likewise resellers who buy goods through grey market sellers or outlet shops and haven’t signed MAP agreements with producers aren’t bound to adhere to minimum advertised pricing policies.

For first-party vendors (brands and producers providing Amazon directly through Vendor Central), Amazon will not stick to MAP unless it is mentioned in the contract. Allegedly, getting Amazon to contractually agree to MAP is near impossible. Instead, Amazon imposes a reverse MAP, requiring 1P vendors to keep price parity rather than promote a price lower than available on Amazon. And it is no secret Amazon uses bots to track prices throughout the net and routinely reprices its listings to always match or beat them.

What about the Brand Registry?

Joining the Brand Registry as a producer or trademark owner provides you greater influence on your brand’s content and how it’s presented on ASIN pages.

Prior to”Brand Registry 2.0,” both 3P sellers and brand owners can make edits to ASIN content, with brands’ edits weighted higher and approved at Amazon’s discretion. Third-party sellers may even reassign ASINs to various categories. The most recent iteration of this program gives brands only admin rights over content and categorization.

But, ASIN pages belong to Amazon, and Brand Registry doesn’t give control over which vendors attach their stock to ASIN webpages, pricing or the Purchase Box.

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Brand gating

In 2016, Amazon started restricting the ability to record certain brands and ASINs as”New” for new third party sellers (brand gating). To become ungated for these things, sellers need to pay around $1500 per trade and submit statements proving they obtained product from legitimate distributors or the maker itself.

Brand gating isn’t meant to safeguard brands from unscrupulous sellers (nor do brands get some of the charges ). Amazon’s objective is to maintain counterfeits away from the site and maintain consumer confidence with the platform. Amazon does not involve brands in the approval procedure for new vendors that apply, and as long as their origin is valid, it matters not whether an ungated freelancer is blessed with the manufacturer.

Because brand gating only applies to new vendors, tens of thousands of grandfathered sellers remain exempt from these policies.

While today brands are able to apply for gating via Brand Registry, approval is at Amazon’s discretion and the process can take a long time. If your application is successful, it is no guarantee every one of your brand’s ASINs will be gated, and you might just be gated in the”offered as New” level.

Amazon may additionally gate a new or ASIN without a brand’s understanding if it receives sufficient counterfeit complaints or speculation.

Project Zero

Project Zero is Amazon’s new(ish) counter-counterfeit program. It uses machine learning how to scan over 5 billion daily listing updates and match back to brands’ trademarks, logos, images and more (supplied through Brand Registry). Additionally, it gives brands the self-serve capability to eliminate counterfeit sellers from their ASIN pages via their Brand Registry accounts.

Before Project Zero, manufacturers needed to continually monitor and report possible infringement for example sellers utilizing brand marks in names or branded merchandise pictures for their private label items (for which sellers could be contacted and requested to supply invoices and other signs. To establish counterfeit claims, Amazon required manufacturers to put a”test buy” from each vendor in question, submitting photographic and other evidence when a product was found to be a knock-off. This process was slow, and it was never guaranteed Amazon would eliminate reported listings.

While this self-serve privilege is meant to authorities only counterfeit listings, many manufacturers and manufacturers use it as a way to gate their ASINs and kick off anonymous or unscrupulous sellers — especially when the brand is a 1P seller competing with 3P merchants. This tactic isn’t without danger, if vendors appeal and can offer the required documentation to prove authenticity, the brand can face consequences if it is found to be abusing the program.

Only brands using a registered trademark are eligible for Project Zero.

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Transparency

A subset of Project Zero, Transparency is Amazon’s product serialization service which brands and producers can use to confirm product is authentic and protect against 3P sellers from listing ASINs enrolled in the program.

Transparency offers unique QR codes for each unit manufactured, and the newest puts 2D stickers on its product as part of their production procedure. (Amazon creates the codes, and producers must buy them from approved label providers like Avery).

For each ASIN enrolled in Transparency, Amazon will scan incoming stock to its FBA (Fulfillment By Amazon) warehouses and reject components with no labels (even when it comes direct from the manufacturer). Soon after registration, present unlabeled FBA stock is pulled with corresponding sellers eliminated from ASIN pages. Affected sellers get notice they have to acquire codes from the manufacturer to be re-listed or must remember their stock and stop selling on the market, even as Used. If they don’t offer the codes and continue to market following the warning mails, vendor accounts are suspended.

Sellers who meet themselves (FBM or Fulfillment By Merchant) must supply codes for every unit of affected stock through its Seller Central account before Transparency-enabled items can be sent or the orders will be canceled.

Like Project Zero, some manufacturers visit Transparency as another way to brand gate their ASINs and control that vendors can list on Amazon. However, involvement in Transparency requires a producer to go all in — codes have to be generated for each unit manufactured of each registered UPC, regardless of what channel it’ll be sold through, such as physical retail. This will not allow a brand to clear ASIN pages of rivalry or restrict authorized sellers from listing stickered goods obtained through licensed distributors or the grey market. Transparency only serves to confirm a product’s authenticity, not to handle a new supply chain.

Having said that, Transparency or any item serialization solution helps manufacturers identify where merchandise came from and can help identify rogue retailers or retail partners violating policy and contractual arrangements.

For many producers, using Transparency serialization provides Amazon too much visibility into its supply chain and supply data. In light of major brands like Allbirds calling Amazon outside for private labeling its knock-offs, this concern is legitimate. Stickering each unit with Amazon’s QR codes also indicates to retail and channel partners that you are closely connected with Amazon, which might exacerbate present channel conflict.

Amazon personal label. Allirds – can you tell the difference?

If you decide to use your own serialization service over Transparency, you may still use this as evidence for”May be counterfeit” or”Used as fresh, no factory warranty” complaints filed via Brand Registry, however you’ll have to place a test purchase and proceed through the normal claims process.

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Are Brand Registry tools ?

It’s apparent that Amazon’s objective is protecting Amazon. Brand Registry exists to guarantee product content precision and fight counterfeit goods — not to resolve supply chain problems or give manufacturers a direct procedure to gate vendors it does not approve of.

Amazon protects and values 3P vendors with long sales histories and positive reviews, and worth its customer even more.

No brand will get special treatment on Amazon.

Though third party listings for Nike products dropped 46 percent between February and September 2018, the match of whack-a-mole never ceased, with grandfathered sellers continuing unchecked and new sellers finding workarounds like generating new ASIN pages for limited products. Additionally, brand performance dropped 15 percent as Nike’s own listings (with fewer reviews and sell-through background ) competed for visibility and”Amazon Choice” standing in categories and search.

The fantastic news is smaller brands and manufacturers will probably be more satisfied than Nike with Registry and its tools. The high-scale requirement for brands like Nike creates higher-scale problems with unauthorized selling and counterfeits than the normal business. Now’s Brand Registry 2.0 could be adequate for manufacturers who want a more compact method to report IP infringement, ASIN hijackers and counterfeit products, and protect the accuracy of product descriptions and other content.

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