Amazon's Quiet Overhaul of the Trademark System
Amazon’s dominance as a platform is widely documented. But one aspect of that dominance has not received sufficient attention-the Amazon Brand Registry’s sweeping influence on firm behavior, particularly in relation to the formal trademark system. Amazon’s Brand Registry serves as a shadow trademark system that dramatically affects businesses’ incentives to seek legal registration of their marks. The result has been a dramatic increase in the number of applications to register, which has swamped the U.S. Patent and Trademark Office and created delays for all applicants, even those that previously would have registered their marks. And the increased value of federal registration has drawn in bad actors who fraudulently register marks that are in use by others on the Amazon platform and use those registrations to extort the true owners.
Amazon’s policies also create incentives for businesses to adopt different kinds of marks. Specifically, businesses are more likely to claim descriptive or generic terms, advantageously in stylized form or with accompanying images, and to game the scope limitations that would ordinarily attend registration of those marks. And the same Amazon policies have given rise to the phenomenon of “nonsense marks”-strings of letters and numbers that are not recognizable as words or symbols. In the midst of these systemic changes, Amazon has consolidated its own branding practices, focusing on a few core brands and expanding its use of those marks across a wide range of products. In combination, Amazon’s business model and Brand Registry have overhauled the American trademark system, and they have done so with very little public recognition of the consequences of Amazon’s business approach.
