Protecting Your Brand From Unauthorized Resellers, Part 3: Identifying Resellers

August 22, 2018

Unauthorized online resellers are a growing brand protection problem for a manufacturers, particularly as consumers continue to do more and more of their shopping on sites like Amazon and eBay. Unauthorized resellers purchase products in bulk from third-party sellers (generally at discounted prices) and then resell them without the manufacturer’s authorization or consent. These resellers harm a company’s brand, and they often violate a company’s resale policies, such as its minimum advertised price (MAP) policy.

Unauthorized resellers can be stopped – learn more in Part 1 and Part 2 of this series – but one major problem in doing so is simply identifying the reseller. Resellers hide behind fictitious names, DBAs (“doing business as”) or Amazon storefronts.

Yet manufacturers are not out luck. Here are three ways to discover these resellers’ identities.

Internet Searches
This may be obvious, but the first step in identifying resellers is to perform a simple Google search on the reseller’s name and/or storefront. Sometimes the reseller name will be linked to a certain company or is connected to that reseller’s own website. This makes identifying the reseller easy. Manufacturers can also work with an attorney to conduct public records searches, which pull data from all Secretary of States’ websites and reveal any fictitious or trade name registrations. Spending time scouring the Internet can often be the most effective and efficient way to identify a reseller; however, it is far from a foolproof method.

Test Buys
When Internet searches fail, the next step is to perform a test buy from that reseller. By purchasing a product from the reseller, manufacturers can secure a return address for the company. This provides a valid address in order to begin the enforcement or take-down process against that reseller, such as a cease-and-desist letter. This method has limitations. For example, this is ineffective for resellers on Amazon whose sales are “fulfilled by Amazon.”

DMCA Subpoenas
The final step in identifying a reseller is issuing a subpoena under the Digital Millennium Copyright Act (DMCA). Under Section 512(h) of the DMCA, a copyright holder “may request the clerk of any United States District Court to issue a subpoena to a service provider for identification of an alleged infringer.” This approach can be used when an unauthorized reseller is using a company’s images to sell products on Amazon or eBay. In this scenario, a DMCA subpoena can be issued to obtain the reseller’s information. The main drawback of this method is that it can take time.

If you need assistance with identifying unauthorized resellers or general questions related to unauthorized resellers, please contact KJK’s Brand Enforcement team:

David Posteraro, Partner, Brand Enforcement, Intellectual Property and Cybersecurity & Internet Privacy
Alex Jones, Associate, Brand Enforcement, Intellectual Property and Corporate

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