Practical Ecommerce

Legal: Protect Against Counterfeit Goods with Amazon Brand Gating

There is no question that service providers like Amazon must constantly be on guard against nefarious third party sellers who might use their service for unlawful means. In order to build and maintain trust with its sellers and brands, Amazon must ensure that brand owners can stop the sale of counterfeit goods on its services. In recent years, Amazon has adopted new programs to protect this trust, one of which is brand gating.

Brand Gating Defined

What is brand gating? Brand gating is a means by which a brand owner may convince Amazon to exclude unauthorized third parties from selling the brand’s products on Amazon. By brand gating, a brand can control the resellers of products bearing the brand’s Amazon Standard Identification Numbers (ASINs), which prevents unauthorized sellers from listing the brand’s goods on the service. Brands can charge a fee, in some cases $1,500, for any new seller of the brand, which ads an additional barrier to entry to would-be counterfeiters. However, some brands have do not charge a fee.

Tips to Benefit from Brand Gating

To take advantage of brand gating, we typically recommend that brand owners file for trademark registration of their brands with the United States Patent and Trademark Office. Once trademark registration has been obtained, we then advise brand owners to participate in the Amazon Brand Registry. By participating in the Brand Registry, brands can take advantage of Amazon’s promise to deal with counterfeiting claims within four hours. Additionally, by participating in the Brand Registry, brands no longer have to perform a test buy before submitting a counterfeiting claim.

Once all of this is done, the next steps can be ambiguous at best. There is currently no public-facing means by which a brand can obtain brand gating. Experience, however, shows that brand gating is often open to larger sellers with extensive counterfeiting problems. It is not, however, exclusive to large sellers. Smaller sellers can also obtain brand gating by providing the right information.

There is currently no public-facing means by which a brand can obtain brand gating.

To aid Amazon in determining whether a brand should be gated, sellers should produce and be prepared to provide a list of ASINs to be gated. Brands should also be prepared to tell a compelling story about how counterfeiting has had an effect on their brand and provide specific examples of counterfeiting to support that story. It may take 4-5 weeks to have your brand accepted into the brand gating program. A brand can determine if it has been accepted by searching for one of its products and by clicking on the “Sell on Amazon” button. If a pop-up says selling requires approval, you’ve successful been gated.

What Does All of This Mean for Sellers?

For third-party sellers, meaning sellers that are not a brand, it means that they may need to either acquire direct approval to sell a brand’s goods on Amazon or pay a fee to sell products from a gated brand. For third-party sellers that buy their products at retail, it may also mean that they can no longer sell on Amazon because they cannot prove that they have the brand-owner’s approval to sell a gated product. To prove that a third-party seller is authorized, it may need to submit information, such as invoices showing direct purchases from a brand or a letter from the brand owner.

Though the cost of compliance may be high, third-party sellers face significant risk, such as an outright ban, if they do not comply. Gated brand notifications can be sent at any time, and Amazon appears to be scaling these changes, so more may be on their way. Third-party sellers are advised to not attempt to get around brand gating by listing items as used or by bundling restricted brands with non-restricted brands. Obtaining authorization is far easier than attempting to recover a blocked account through arbitration.

As always, if you have questions about brand gating, speak with an attorney.

John Di Giacomo

John Di Giacomo

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  1. dino September 6, 2017 Reply

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