Maybe it’s cold, and you need some winter gloves. You know the brand of your favorite coat and remember who made your warmest sweater. Gloves, however, have always just been gloves, purchased without too much thought. So you open up Amazon and search: “winter gloves.”
On the first page you might see a brand you’ve heard of, like Carhartt, whose W.P. Waterproof Insulated Glove, priced in my search at $24.37, has been positively reviewed thousands of times. Scroll a bit further and you might find the venerable Isotoner offering another popular basic glove.
Mostly, you’ll notice gloves from brands that, unless you’ve spent a lot of time searching for gloves on Amazon, you’ve never heard of. Brands that evoke nothing in particular but which do so in capital letters. Brands that are neither translated nor Romanized nor transliterated from another language, and which may contain words, or names, that do not seem to refer to the products they sell. Brands like Pvendor, RIVMOUNT, FRETREE and MAJCF. Gloves emblazoned with names like Nertpow, SHSTFD, Joyoldelf, VBIGER and Bizzliz. Gloves with hundreds or even thousands of apparently positive reviews, available for very low prices, shipped quickly, for free, with Amazon Prime.
Gloves are just one example; there are at least hundreds of popular searches that will return similar results. White socks: JourNow, Formeu, COOVAN. IPhone cables: HOVAMP, Binecsies, BSTOEM. Sleep masks: MZOO, ZGGCD, PeNeede.
These “pseudo-brands,” as some Amazon sellers call them, represent a large and growing portion of the company’s business. These thousands of new product lines, launched onto Amazon by third-party sellers with minimal conventional marketing — stocking the site with disparate categories of goods, many evaporating as quickly as they appeared — are challenging what it means to be a brand.
They’ve also helped overwhelm the U.S. Patent and Trademark Office, which, not unlike an Amazon shopper, has for years found itself mystified by pseudo-brands as it continues to approve them. Maybe they’re the future of shopping. They’re certainly part of the now.
FRETREE grows in Shenzhen, China
There isn’t too much to say about my FRETREE gloves, which were $7.99 with free next-day shipping. They’re gray and logo-free. They work with touch screens and run a bit small, as I was informed by reviewers.
FRETREE products are sold by an Amazon seller called Pouss, whose other products include water bottles, USB hubs and inflatable lounge chairs. The FRETREE trademark, which was obtained in July 2019, lists 20 sorts of goods, including “ice cream scoops,” “animal-activated pet feeders” and “camping grills,” but not gloves. “The wording ‘FRETREE’ has no meaning in a foreign language,” the trademark says. It is registered to Li Nuo, who lists an address in a business park in Shenzhen, China.
Almost half of top Amazon sellers — those selling more than $1 million in the U.S. — are in China; about one-third of Amazon’s Chinese sellers overall are estimated to be in Shenzhen, according to Marketplace Pulse, which tracks e-commerce marketplaces.
Amazon has been successful in recruiting Chinese entrepreneurs to sell abroad, opening “cross-border e-commerce parks,” where sellers can get assistance with logistics, branding and navigating Amazon’s platform. For the last five years, the company has also hosted summits for Chinese cross-border sellers. Last year’s conference, held in Shanghai, was attended by more than 10,000 sellers, many of whom see, in Amazon, an alternative to increasingly saturated domestic platforms.
A seller in the U.S. might start with a brand idea and need to figure out how to get it manufactured; a seller connected to a factory in China’s manufacturing capital needs to figure out how to sell to Americans, which Amazon has been working hard to facilitate.
“If a Chinese factory is able to give a better price than a seller in America, Amazon is happy with that,” said Kian Golzari, who works with marketplace sellers and corporate clients to source products from China.
“It’s branding versus selling,” Golzari said. “If you’re selling massage guns” — a category where there is no preexisting dominant brand to contend with — “you’re just selling until the market gets flooded, and then you move on.”
Even in obscure categories, success on Amazon can be hugely lucrative.
That’s not to say that conventional branding doesn’t matter on Amazon. The company has been courting major brands since the early 2000s. But in certain categories — commodity goods or types of products where shoppers don’t have much brand loyalty in the first place — a product can succeed without a brand or even despite one.
In those categories, sellers mostly “use Amazon’s brand name to sell their products,” said Kevin King, a longtime Amazon seller and consultant. If an item is on Prime, it’s got a high star rating, and it’ll be at your house in a couple days, a listing can get attention.
The rapid rise of cross-border discount selling on Amazon is adequate to explain the success of minimally branded products on Marketplace. It is not quite enough, however, to explain Amazon’s utterly pervasive and unique new branding language, which is neither specifically foreign nor descriptive of the products in any obvious way. These brands may fail to tell the stories of the products they’re intended to sell. But they tell quite a story about Amazon itself, and the U.S. trademark regime, which is creaking under their weight.
Building a brand, Amazon-style
Amazon’s Marketplace has made it easy to sell almost anything to almost anyone, resulting, perhaps predictably, in frequent reports of counterfeit items, misleading listings and dangerous products. Among Amazon’s numerous and wide-ranging efforts to address seller and customer concerns is Brand Registry. First created in 2015 and opened widely in 2017, Brand Registry was pitched to brand owners as a way to combat counterfeits and to control how their brands appear on Amazon in general. It gives owners control over product listings that contain their products and the ability to protect themselves against unauthorized sellers using their names. Crucially, Amazon said on its site, “it gives you more access to advertising solutions, which can help you increase your brand presence on Amazon” as well as to “utilize the Early Reviewer Program to gain initial reviews on new products” — a sanctioned method for improving a product’s search result.
If you’re feeding a brand-new listing into the Amazon machine and doing so without a preexisting brand or customers, getting into Brand Registry is extremely important. To achieve real and lasting success on Amazon, it’s vital.
As of 2017, it also requires a registered trademark.
The process of obtaining a U.S. trademark is, by global standards, fairly slow and labor-intensive; the process can stretch beyond a year. But an application’s success depends, in part, on the mark itself.
“There’s a spectrum of distinctiveness,” said Elizabeth Milesnick, a partner at IdeaLegal in Portland, Ore., which itself is a participant in Amazon’s IP Accelerator Program, through which sellers can join Amazon’s Brand Registry before obtaining a trademark, often in a matter of weeks, by applying with the help of approved law firms. “It starts from generic, like ‘glove’ for a glove,” she said, which would be nearly impossible to register. “At the extreme other end, when you’re superregisterable is when it is something like a made-up word, like Xerox,” she said. Or FRETREE.
“There are only so many English words, and pretty much every new good they sell on Amazon will have its own brand,” said Timothy Wang, a partner at Ni, Wang & Massand. This firm, according to CompuMark, a trademark analytics firm, ranked 12th among U.S. law firms in total trademark applications for 2019.
Many of Wang’s clients work in cross-border e-commerce and sell on Amazon. “A lot of foreign vendors aren’t too sophisticated in designing a trademark,” he said. “A lot of people just come up with random letters. If you just have a bunch of random letters, people can’t say this is too similar to their marks, and it’s easier for you to get the trademark registered,” he said.
The trademark rush
Among trademark attorneys, and at the U.S. Patent and Trademark Office (USPTO), the rise of trademark applications from China has been treated as somewhat mysterious.
“The trademark volume has absolutely exploded over the last five years,” said Robert Reading of CompuMark, the trademark analytics firm. “Last year, 14% of all U.S. trademarks were filed by Chinese applicants. The year before that it was 10%.” Most of the time, he said, trademark registrations tend to originate from larger firms filing for many marks, although that does not appear to be the case in China.
According to CompuMark’s analysis, he said, “these tens of thousands of applications actually have a much higher registration rate than the major U.S. law firms representing large U.S. companies.” Their success in getting approved can likely be credited to the names: Compared to something descriptive, or familiar, or to which a registrant is emotionally attached, a completely novel application — he used the example of an application covering balls for ballpoint pens under the mark “bYwxbYjb” — will just “fly through.” Other theories for the rise include monetary incentives provided by the Chinese government for obtaining foreign intellectual property rights or a concerted effort to clog the USPTO.
Speaking to a House subcommittee in 2019, the USPTO commissioner for trademarks, Mary Boney Denison, outlined what she called “Emerging Threats to the Integrity of the Trademark System and the Impact on American Consumers and Businesses.” Among them was the deluge of trademark applications. “In recent years,” she said, “the USPTO has seen a significant increase in the number of applicants who are not fulfilling their legal and ethical obligations to file accurately and in good faith, particularly with respect to claims that the mark is in use in commerce.”
Many applications, she noted, would include specimen photos, meant to demonstrate the existence of a product that could be trademarked but that had been Photoshopped. “Inaccurate and fraudulent claims of use,” Denison said, “threaten to undermine the reliability of the trademark register.”
As a countermeasure, the USPTO made it public that, beginning in August, it would begin requiring applicants be represented by a U.S.-licensed attorney. This, according to CompuMark, resulted in a surge of applications in July — peaking at 20,670 — and a meaningful decline in applications by October.
In an interview with Inventor’s Digest magazine in February 2019, Denison suggested one driving factor in the registrations. “We are not sure, but we think the existence of Amazon’s Brand Registry, while encouraging trademark registrations, also may be one reason we are getting fraudulent filings,” she said. More than 200,000 brands have joined the Brand Registry since launch, according to Amazon. It would take only a fraction of that number to create noticeable change at the USPTO; taking into account that trademarks are being reserved for future use as interchangeable e-commerce verification documents, the connection is difficult to dismiss.
Contributing to the confusion is the narrow but significant value of a trademark within Amazon. While the USPTO describes trademarks as “brands,” which are “used or intended to be used to identify and distinguish the goods/services of one seller or provider from those of others,” on Amazon, obtaining a trademark is just one more part of the seller onboarding process.
FRETREE, for example, was trademarked in July 2019, just before the August attorney rule went into effect. To Amazon’s platform, FRETREE is as much a brand as any other.
But the store is what matters — not the products, not the brand. The thing to be named, cultivated and protected by trademark isn’t a product or a line of products but rather this thin, valuable conduit to American consumers, particularly to the more than 100 million American subscribers to Amazon Prime.