Recommended Reading: Fromer and McKenna, "Amazon's Quiet Overhaul of the Trademark System"

Despite all the hoopla about the Supreme Court's rulings in Tam, Brunetti, and Elster, how much do those rulings affect the everyday practice of trademark law? One could argue that Amazon and its Brand Registry have had much more of an impact.As Professors Fromer and McKenna argue: " 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." Fromer, Jeanne C. and McKenna, Mark P., "Amazon's Quiet Overhaul of the Trademark System" (June 19, 2024), California Law Review, Volume 113, forthcoming 2025. Available here

Abstract

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.

Amazon's impact raises profound questions for trademark law, and for law more generally. There have been powerful players before, and other situations in which private dispute resolution procedures have affected parties' behavior. But Amazon's effect on the legal system is unprecedented in scale and scope. What does (and should) it mean that one private party can so significantly affect a legal system? Do we want the trademark system to have to continually adapt to Amazon's rules? If not, how can the law disable Amazon from having such a profound impact? In this regard, we explore the ways in which Amazon's practices might both help and hurt competition, be harmful to the trademark system, and reshape how we think about trademark law at its foundation.

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Introductory text Copyright John L. Welch 2024.