Robert Wright is an intellectual property attorney and the owner of Wright Private Label Law, which specializes in IP protection in the E-commerce space. Robert is passionate about intellectual property law and has helped hundreds of clients across the globe protect their intellectual property on Amazon, Shopify, and other e-commerce platforms.
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If someone steals your product photos, Amazon has a process where you can go and say, Amazon under the penalty of perjury, I think these sellers are using my product photos, you need to take them down. And I think my record is like 48 minutes from the time I filed a complaint to having another listing taken down. And it’s not because I’m an amazing lawyer, and it’s not because I was able to just draft the most beautiful takedown complaint ever. It’s literally because Amazon self interest.
Welcome, everyone to the firing the man podcast show for anyone who wants to be their own boss. If you sit in a cubicle every day and know you were capable of more than join us, this show will help you build a business and grow your passive income streams in just a few short hours per day. And now your host serial entrepreneurs David Schomer and Ken Wilson.
Welcome everyone to the firing the man podcast on today’s episode we are joined by Robert Wright. Robert is the owner of write private label law which specializes in intellectual property protection in the e commerce space. Robert is passionate about intellectual property law, and has helped hundreds of clients across the globe protect their intellectual property on Amazon, Shopify and other e commerce platforms. Welcome to the show, Robert.
Hey, thanks. I appreciate you all having me.
Absolutely. So to start things off, tell us a little bit about yourself.
Yeah, well, you know, I I’m a lawyer by trade right so that’s that’s what’s the on the 10. So lawyer by trade got into law and I kind of blame my parents right like as a kid, there would always be you know, courtroom dramas on in the background. They love to have the TV on so you know, Perry Mason or law and order Matlock was was big in the household. And as I headed off to college, trying to figure out what in the world am I going to do with myself? I, interestingly enough, started kind of going down the psychology road and like, psychology seems kind of neat. took one class in that and said, No, that’s not for me at all. But thankfully, was taking a government class kind of at the same time, and that was that kind of had a little bit of a A law lean to it. And then that led to a constitutional law class which I loved, which led to an international law class, which I really liked. And before you know it, I had enough credits to be a pre law major and what a pre law majors do they go off to law school. The cool thing, though, was, as I was I was kind of embracing the law. I’m trying to figure out how I wanted to make that my profession. It was also the advent of the Internet really becoming what it what it what it is now, right. And so there was file sharing, and there was Napster. And I mentioned, bear share and all that sort of stuff going on. And my music collection, admittedly went from a couple of songs do a lot of songs, and I thought that was pretty great. I thought technology was pretty cool. And when that all got shut down, I wanted to understand why you know why this, the very first thing that they teach you, they want to kindergarten that you should share it with your friends? Why is that so wrong? Right? So I went into law school, with an interest in the law and interest in technology and interest in what I ultimately came to learn was intellectual property and quickly learned that you know what it’s not sharing with your friends that stealing and stealing is wrong. They also teach you that in kindergarten that you shouldn’t steal. And as I moved out of law school and tried to figure out what I want to practice, right, you know, do I do personal injury to owner to criminal defense? Do I want to you know, do I want to be Matlock? I said, No, I want to do what I love and what I’m passionate about, which is trademarks and copyrights and talking about patents and working with entrepreneurs. And that led me to the launch in my law practice. And that was well and good until the day that someone walked through my virtual doors of a virtual law practice and I got a Facebook message that said, I’ve been hijacked Can you help? And all of a sudden, like, I was, I was kind of freaking out admittedly, I’m like, Oh my god, there’s something here there’s my client is in the back of a car somewhere. And this is like taken and he’s getting the message out and you know, what about how am I going to help this guy, you know, and I’m like, you know, what do you need Where are you? Can you you know, what sounds Do you hear around you know, trying to defend To location and he’s like, and they said no, my Amazon listings been hijacked. Do you do that sort of thing? I’m like, hijack What is this? And so that was really my introduction to the world of, of Amazon law or private label law. And I quickly it was interesting after that people started coming through my doors and it was no longer Hey, can you help me with my trademark or Hey, I’ve got these products or I’ve got these photos and I need to copyright Can you okay with that? It was literally I’ve been hijacked. Can you help Brand Registry? Is that something that you assist with? Can you help me get brand gated in this this all is very Amazon specific and private label specific nomenclature started popping into my world. And I said, you know what this is, this is really cool. Like, I’m all about this. And so I actually went to a mentor and said, teach me teach me how to sell private label because this this is a brave new world here, right? The ability to kind of sit and make money while you sleep. And I want to learn about that, but then I selfishly did it because I’m I wanted to help support my clients. And so when someone would come to me and say I’ve been hijacked, I want to understand what that means. I want to understand how that affects their business. And so my thought was, by stepping into their shoes, that was really the only way I was going to be able to do that. And so, a long, long answer your question is, I’m a lawyer. I’m an intellectual property geek, and I’m a private label seller, and I couldn’t be happier.
Very nice, very nice. Well, I’d like to start with getting your listing hijacked. That’s happened to me, that’s happened to Ken. And for some of our listeners who are unfamiliar with what this means. Can you kind of explain that and then talk us through the steps that one may take in order to correct this?
Yeah, absolutely. So I think one of the biggest misconceptions about Amazon is that when you create a product detail page, you own it, you’ll hear sellers talk about it all the time, my listing, it’s not your listing, it’s your product photos, and it’s it’s your product and it’s you know, it’s your advertising copy, you know, the details of the product. listing page of yours. But the page itself is owned by Amazon, right? By creating that listing. And by giving you the opportunity to create that listing all Amazon has given you is the right to create a page and their big, ginormous catalog of things, right? And so understanding that you don’t own your product detail page, and then anybody per Amazon’s own terms of service, anyone selling the exact same product, not only can they list on your listing, they have to or they’re violating Amazon’s Terms of Service. So the first one it doesn’t it dismisses notion that Oh, it’s my listing. It’s not your listing. It is a listing in a catalog and it’s brand specific, and it’s got UPC codes associated with it. And there’s all sorts of things that make it feel like yours, but it’s not yours. Right. hijacking is technically, you know, when you go to Amazon and you press that buy box, whoever has that buy box gets the sale, right? And for most private label sellers, if you’re doing everything right, you’re going to be the only one that’s ever associated with that buy box, but as people have returns or people are counterfeiting or people are hijacking. They’re going to land on your listing, they’re going to be in the other sellers selling this right. And if they ultimately undercut you on price, well guess what? They’re going to take control of the buy box. And all of a sudden, you know, for that, for that normal Amazon person, you know, the consumer doesn’t know anything about the stuff that we do is private label sellers. They don’t, they don’t they don’t care who they’re buying it from. They just they see it, they press buy, and then you know get shipped off to them, right, that doesn’t affect them at all. It affects us as sellers though because we want the sales we want to be the ones in control the buy box, making money and so hijacking is when someone who shouldn’t have taken that buy box from you and is effectively stealing your sales. Now, what do you do about it when it happens? Well, at this point, you kind of have to ask yourself, Am I brand registered? Or am I not brand registered? Okay, Brand Registry is a program that Amazon offers that seller to community. Basically, you get better listings, you get access to enhance brand content. You Get more advertising opportunities, things like storefronts and sponsored ads. But Thirdly, and kind of most importantly, from a protecting your brand perspective, it gives you access to a dedicated support team that’s staffed 365 days a year 24 seven. And if you have an issue, someone is copying your listing someone’s on, you’re taking the buy box from you, you can report it to this team and per Amazon’s own statistics 94% of the time, that team is going to take action in your favor, which is a really good thing, right? So if you have a listing that’s been hijacked, and you’re brand registered, the simplest thing is to work through the Brand Registry portal, report it to the team and let Amazon take care of it for you. If that’s not the circumstances that you find yourself under, maybe you’re a newer seller and you haven’t brand registered, meaning you haven’t invested in a trademark registration, well, then you’ve got to use Amazon’s own terms to your benefit, right. If we know that anybody can list on a product detail page, provided they’re selling the exact same person product, what you need to do is figure out a reason why the person who’s hijack your listing isn’t selling the exact same product. Now, there’s a lot of different strategies that you can employ. You know, I really encourage sellers who are worried about this, they’re not brand registered yet to really make their branding predominant in their product photos. Don’t just if you’re selling a spatula, and you maybe you’ve got a nice little sticker on the box or whatever, but you decide not to show that in the product photos. I think that’s to your detriment. You want to make it very clear that that product detail page is for your brand of spatula, right? It’s actually better if you can put the the branding on the product itself, show that in the product detail photos so that if I’m a hijacker and I’m looking at this listing, I know man, this is a spatula, it’s got special branding in it, that’s going to be difficult to hijack. I’m gonna get a fine I’m going to get found out. I’m going to go move to a listing that’s a little easier to take the buy box from because I don’t want to get in trouble as a hijacker because I get in trouble too many times. My Account will get shut down and then I’ll have to try to start a new one. It’s just a, it’s a bad game. So number one, making your branding very, you know predominant in your in your product detail page. Otherwise bundling your item or adding a bonus item you know a spatula with a would be a good thing for a spatula and maybe like an egg ring or something right together small cheap little bonus item not only shows additional value to your customer, but it also makes it more difficult to hijack if I’m a hijacker coming to a listing. And I know I’ve got to provide both a spatula and an egg ring. Okay, I don’t have those, it’s gonna be a pain in the butt to deal with. I’m going to move on to the next listing. So just naturally doing some things that are preventative like that will keep you from being hijacked. But in the event that you are, do a test, buy and then fit you know, take down your order number. Take photos of the product in the box when it arrives. If you want to take a video of you opening the box just to keep everything aboveboard and document document document But your job at that point is basically to figure out as many reasons why what you received is different than the listing, and then reporting that to Amazon through their Amazon report infringement portal, and just saying, Hey, listen, I’m a seller. And this listing is for a spatula, and it’s, here’s the UPC code associated with a spatula, and we’ve got a sticker on the box with the branding on it and I bought from this other seller. Here’s the order number. Here’s some photos and you can see the spatula doesn’t have the sticker on it. It’s a generic spatula doesn’t have the branding, the UPC sees seems to be missing. Oh, by the way, the box that I have is a red box and this one came in a white box is difference difference, difference difference. And again, coming at it from a perspective of I’m not saying this person can’t sell a spatula. I’m just saying that if they’re selling a spatula on this product detail page, it has to match 100% here’s why it doesn’t. They need to go off and make their own product detail page I’ve used prior to me being brand registered with my brand I’ve I’ve had to do that a number of times, that strategy has been very successful. For me, it’s a little bit of a pain because you do have to place a test by. But you know, that’s just part and parcel of doing business on online these days, especially on Amazon. So just kind of bake that into your time and a little bit of your money in your coffers, too, because you’re going to be buying some spatulas that you may or may not want.
Oh, very nice. So I’m sure there are some of our listeners right now that are thinking I have no intellectual property. mechanisms in place for
people like that, right? Like I’m a seller, I don’t have any intellectual property. Yeah, I get that a lot. Which is, which is interesting. And there’s nothing that’s further from the truth. I mean, you have your brand name, I mean, private label selling your private label is a brand name, right? A brand name is trademark, right? names, logos, slogans, all proper trademarks, as long as they’re associated with a product. And if you’re doing that in your business, you absolutely have intellectual property and it does To be protected, when it relates to trademarks, you don’t have to register to have one. So the way trademarks work is as soon as you put a name, logo or slogan on a product, you have rights in the geographic area where you sell. Now for traditional retailers, that’s, that’s fine. You know, you can have a nice little brick and mortar store here in Louisville, Kentucky, and about 50 miles around, people come to the store and they know the brand. And you know, I’m never going to be selling to California or Utah or Idaho or wherever else and life is fine, right? I don’t need to register anything because I’ve got my little sphere of influence. If I had to try to enforce my rights, I would I would have the illegal ability to do that. But when you sell online, you sell a little bit of everywhere, but not really anywhere, right? You’re selling in pockets. I love to look at my Amazon report to see where in the world am I selling these things right and it’s as random and so you know, geographic pockets of influence don’t really work in the on the online world and so registering a trademark with In the country that you sell, so you’re in the States, be the United States Patent trademark office. All of a sudden your geographic sphere of influence is the entire United States. It’s not just little bubbles of where you sell. And specifically for Amazon, that trademark registration is going to be your key of entry into the Brand Registry program. The Brand Registry program is going to give you the better listings with the enhanced brand content, the additional advertising opportunities and then the brand enforcement portal. So in terms of intellectual property is a seller you absolutely do. You’ve got your your trademarks, your name, your logo, your slogan, I’d also say that you have copyrightable works. And this is something that sellers miss a lot, right? When you go and take product, you have product photos taken or you’re taking the product photos, those photos are copyrightable works of authorship, your retail packaging, you know, if you come up with some designs on the box, or maybe it’s a stylized box, it’s a special type of box. That’s that could be a copyright. The design certainly isn’t this stuff. realization of the box can be copyrightable, the listing detail the product detail page, the sales copy, again, a copyrightable asset. If you have an instruction manual or a book or you know manual that you’re putting with your product, copyrightable, sometimes the product itself, if you’ve designed it is actually copyrightable as well. So if you sell a pool flow, and it’s in the shape of a doughnut, and it’s a doughnut that you’ve created, that’s a copyrightable asset. Again, all things that can be, you know, protected by registering your copyright at the United States copyright office if you’re here in the state. One word of caution, though, as you go out, and you hire people to take your product photos or hire people to create your logo or hire people to design your doughnut pool float. The way copyright law works is a little bit counterintuitive. Just because you pay someone to create a work like that doesn’t mean that you own it. Okay? copyright law really respects the rights of authors, right. And so when you hire someone to take those products Photos, they may deliver the JPEGs or the PDFs or the AI files or however they’re delivered, and you own those files. But the author continues to own the copyright unless you get what’s called a copyright assignment agreement. Sometimes it’s called a work made for hire agreement, basically a contract that says this this photograph that you’re taking Mr. photographer, those are, you know, copyrightable works of authorship and their works for hire under copyright law, to the extent they can’t be works for hire. All right title and interest in into the work is being assigned to me, the person paying the bill, you’ve got to have that specialized agreement in place. Otherwise, you only own half of what you actually intended to own, which are things like product photos, product detail page, sales, copy, carton design, stylized box, design manuals, that sort of thing. Or specifically, if you’re having a specialized product design, and it’s a it’s more of a graphical work things like pool floats, maybe you have a spatula that’s in the shape of it. Maybe Instead of just a boring basic spatula, it’s in the shape of a unicorn or a panda bear or something like that design element would be copyrightable. And just as free as blank check anybody that wants to go out and sell spatulas that era of unicorn parts on you can go to town with that, that’s, that’s fine.
I would also say the other aspect would be patents. Now I’m as a as a seller. When I think about patents, their utility patents and their design patents. I spend most of my trying time trying to avoid patents as opposed to patenting something you know, getting it getting a properly filed and then enforcing it. That seems to be more work than a lot of sellers are really able to do. But if you have something that is unique, novel, non obvious, you’ve got a spatula that has a special button that flips a certain way that’s unique to the spatula space that’s possibly patentable if you have a kind of a unique design. It’s not a unicorn or a panda bear story. design, maybe it’s just, you know, smooth edges or curves or something, then you possibly have a design, patent, and play. Again, if you see something that’s unique with the way that your products looked or unique with the way that they function, you should be thinking patent. And that may or may not be something that you want to invest in protecting. So lots of intellectual property in play, just because you’re selling private label, just because you’re finding stuff off the shelf, putting your brand name on it, getting it to market, it doesn’t mean that you’re not being innovative. That doesn’t mean that you’re not being entrepreneurial, doesn’t mean that you don’t have anything to protect. In fact, it can be anything to the contrary, you’ve got a lot to protect. It’s just a matter of which elements you want to protect and invest in.
I’d like to dive a little bit deeper into the patent conversation. And I hear sellers run into this all the time where they have a very good idea. It’s a unique novel idea, but it’s unproven in the market. And so they are, they need to order inventory. They need to get all their products, there are all these expenses that rack up before they’ve even made $1, or this products been proven in the market. And then you add patent protection on top of that, which I think is very important. Right. But it’s it’s another layer of expense. So what would be your advice to somebody that has a really good idea has capital constraints and, but also wants to protect it this idea? What what’s the right time to file? And what, you know, what general commentary would you give to that person?
Yeah, you know, it’s a good question, because it’s very much a reality for a lot of sellers that are doing something innovative, right? As folks come to me, and they’re like, Listen, I’ve got this really cool idea. And I think it’s gonna be, you know, something really special in the marketplace, but it’s not proven yet. And I don’t really know and I’m gonna have to, you know, invest in a mold or I’m gonna have to invest in some r&d expenses and should I patent it? My question is always a back to them as always this okay? Do you if you if you do have the money to invest in the actual patenting, right? Do you also have the money to invest in the enforcement? And I think I think sellers do themselves a disservice when they’re like, okay, I can scrounge together, you know, $2,000 for the design patent, I can scrounge together $10,000 to get the utility patent filed. But if you don’t have any money left in the coffers, once you’re in market, once the patenting you know, paperwork has made it through the prosecution process to actually go around and like take down everybody, then I don’t know that it was really worth the investment in the first place. So my first conversation with folks is, don’t just look at Do I have enough money to file and ask to be Do I have enough money to file and Do I have enough money to start enforcement because you know, without without that enforcement piece, you’ve just got a nice fancy piece of paper sitting in a drawer. It’s not doing too much good, right. Other considerations that I have are You know, the design patent route really is is the more affordable the two routes. I mean, I just quoted the 2000 for the design patent at least 10,000. For a utility patent, those are ballpark figures. I mean, they vary depending upon the nature of of the innovation, right. But But long story short, a design patent, much more straightforward process, much less expensive than a utility patent, which is, you know, a much more elaborate prosecution. It’s a much more elaborate application. Really, it says, So first of all, distinguishing between the two dive design elements that I want to protect, or is it really the utility of this item that I care about? If it’s the design pattern, you know, wow, okay, cool. Do you have the money to do it? Do you know, can you enforce it? Great, easy conversation. If it’s the utility piece, there is a mechanism by which you can file what’s called a provisional patent. It’s basically it gives you saves your spot in line gives you a year to kind of, you know, get things sorted out, you’ve got a great innovative idea. Maybe you’re starting to Work on bringing it to market. But you’ve got a basically a year where you’ll have prior rights as opposed to everybody else where you can kind of sort that out and figure that out. So if you do have something that’s it’s the utility that you want to protect, you certainly want to speak to someone and kind of evaluate whether or not a provisional would make sense before moving forward with, you know, a $10,000 investment for a full blown utility patent. But I would also say, don’t, don’t look at intellectual property in a vacuum, right? So many people want to look at IP, and they just look at patents or they just look at trademarks, or they just look at copyrights. Really, I think intellectual property is used most effectively when it’s used as wrapping paper, right? If you have an invention, something innovative, and you can patent a piece of it great. Also make sure that you trademark the branding also, maybe there’s some copyrightable elements to start wrapping that layer of protection around it. No, don’t don’t just look at those small little individuals. silos have what has to be patent or it has to be trademark, or it has to be copyright. It could be all of them, if you look at it the right way. And and frankly, you know, copyrights much more cost effective than patents, trademarks kind of in between. and really whatever capital investment that you have to protect your business to protect your brand. So making sure you’re getting the biggest return on investment, the most bang for your legal buck, based upon the money in the coffers, the innovation that you have in front of you, and what you care about, you know, in terms of enforcement.
Now, I’d like to dig a little bit deeper into the copyright and images. So I think it’s pretty prevalent in the e commerce space that we were talking before the show about no say go look on another platform and search your brand or your keywords and you see images and you know Alibaba and all that Can you maybe cover what to do if that happens and maybe on Amazon And then maybe if you see it on another platform?
Yeah, it’s a great question, Ken. And it’s interesting because as Amazon gets a lot of software and it’s way better, they don’t care about sellers and they don’t do enough and some of that’s true, but I will say is that Amazon has a vested interest in making sure that they run a legitimate platform and Brand Registry 2.0 where people, you know, are taking their business seriously. They’re doing things that legitimate businesses do like protecting their brands with a trademark. They gave them special benefits of you know, the better listings and the more advertising and the brand enforcement. That’s right.
As as that’s that’s had a positive effect. Right. So hijacking as we talked about earlier, is actually it kind of been tamped it down a little bit because, you know, those the copycats and counterfeiters in the like understand, okay, that’s a brand registered brand. I’m not going to deal with that because I’m going to get taken down. I’m going to go find some low hanging fruit that’s helped the platform. But what I’ve seen is actually an uptick and just frankly, more egregious copying. Have people taking product photos, and just creating a new listing and just copying and pasting those product photos and then selling, you know, a spatula with somebody else’s product photos. Similarly, eBay, you know, search your brand name your keywords on eBay, you’ll see all sorts of your product photos, pop up, product details, pages pop up, go to Alibaba, go to Walmart, go to other online platforms put in your brand name put in your keyword. And my guess is more often than not hearing this as your product photos pop up, and even your product detail page details. What do you do with that? If that happens, right? Well, those are all copyrightable work. So if you’ve been doing everything that businesses who do you’ve registered copyrights along the way, the law and I kind of talked about it, I was coming into law about the time that the internet was becoming, you know, what it is? One of the things that helped spurred that were a lot of conversations that, you know, large platform providers had with Congress, they basically there’s something called the Digital Millennium Copyright Act, right. And so you enlarge you know, Internet Service Providers at that time. Go to Congress and say, listen, we understand how copyright law works. We understand if we’re hosting infringing content, we’re equally as responsible as whoever posted it. But guess what Congress, like we’re not in the business of really sorting through content to see if it’s infringing or not. We don’t want to do that. And if we have to do that, the internet’s not going to grow, because we’re not going to take on that risk. So Congress come up with a plan, right? So Congress came up with a plan, they came up with the Digital Millennium Copyright Act, which basically says, Hey, Amazon, hey, eBay, hey, Alibaba, if you’re a large internet platform, and someone comes to you under the penalties of perjury, you know, you know, hand on the Bible scouts honor and says, Listen, I think this content is mine. I think it’s infringing. I want you to take it down. If you as a platform, owner, have a mechanism and a process and a procedure by which you can receive those complaints and then take action on them very quickly. You’re absolved from copyright infringement. We’re going to we’re going to give you get out of jail free card, you get to step Out of out of the situation, which is exactly you know what those ISP wanted way back when, when they were, you know, talking about the Digital Millennium Copyright Act. So, if someone steals your product photos, Amazon has a process where you can go and say, Amazon under the penalty of perjury, I think these sellers are using my product photos, you need to take them down. And I think my record is like 48 minutes from the time I’ve filed a complaint to having another listing taken down. And it’s not because I’m an amazing lawyer, and it’s not because I was able to just draft the most beautiful takedown complaint ever. It’s literally because Amazon self interested. Amazon has the bigger pocket between Amazon and you know, Joe counterfeiter, right? Like if any lawyer worth their salt is going to go after the deeper pocket Amazon wants to be out of that situation. And so if they get a complaint under the penalties of perjury, saying Joe counterfeiter stole, you know, my product photos, of course, Amazon’s gonna take action because it’s to their own benefit. They get to absolve themselves of liability, so why wouldn’t they so 48 minutes is a no brainer. In terms of Yeah, we’ll remove these other people and let them let them figure it out. eBay has a similar policy. Alibaba has a similar policy. etsy has a similar policy. If you scroll down whatever the platform is, scroll down to the terms of service and typically, most of the time it’s in the terms of service themselves. It’s it’s a copyright takedown policy or it’s the DMCA takedown policy. It’ll show you exactly how to report infringement what to do, and if not, if it’s not the terms of service sometimes some larger platforms actually have an intellectual property policy that standalone but just give that a look work through the policy if someone has taken your stuff you know, take them down like you know product photos are expensive, I don’t know you know, I don’t take my own product photos. I pay someone that to take them they’re not inexpensive. I’d like somebody else to pay that fee if they want to. If they want to drop ship my product or they you know they lawfully you’re able to sell my product for you because they purchased it for me. Okay, well, that might be one thing, but take your own pride. photos because I spent a couple hundred bucks in these nice white background photos sorted and taken care of. Now, what happens if you’re accused of copyright infringement? What if someone throws this at you? Well, the DMCA, the Digital Millennium Copyright Act is pretty even handed. If you think you have been wrongly accused, you can actually file what’s called a DMCA counter notice. Now it’s not it’s not something that you do without thought. It’s very serious. You basically are calling the other side’s bluff. You’re saying listen, those people complained against me. They said, I’m a thief. But I’m not. And I’m so confident that I’m not that I invite them to sue me. If they don’t in the next seven to 10 days, Amazon, you can put the you know, this content back up. I mean, you’re basically inviting a lawsuit. So, you know, I don’t want people to run around thinking that you can just snipe down everybody with these compliance. Number one, you have to you’re doing an under penalty of perjury, so you don’t go to jail. You have to be serious about it. But then secondly, understand people can come back and say listen, you know, Amazon could put me back Because I didn’t copy your your stuff, or I have an exception to being able to copy yourself and stuff, maybe there’s a fair use exception is what it would be called. And I’m so confident that that I invite you to sue me, you know, you know, put up or shut up, basically. But it is I will tell you the whole the entire DMCA takedown process. It’s very effective. And it’s very, it’s very customer friendly in terms of accessibility and being able to use I’m always happy to help people do it. But it’s it’s navigable without having to hire a lawyer, which is a nice thing. And frankly, that’s what it’s meant to be in terms of giving people whether they’re sellers or otherwise a mechanism to kind of police themselves online.
One thing I’d like to cover is I think a lot of times as solopreneurs. When you’re you have $5,000 and you’re going to buy $5,000 worth of worth of inventory. You find yourself trying to do it yourself. And I’ll give you an example I filed my own trademark case It was a mess. It took 13 months to get approved. I, I picked a name that there was a very similar name out there. I, it just was an absolute mess, I will never do that again. And so what would be your advice to somebody trying to think about, you know, what can I do myself? And when does it make sense to pick up the phone and call an attorney?
Yeah, I’m going to kind of give you probably a different answer than most lawyers would would give you. And I think it has to do with the fact that you know, I’m in business outside of the law, because I understand what it’s like to have a $5,000 budget. And I tell clients, especially selling private label, you never want to do anything to the detriment of you having product and market because if you don’t have a product, you don’t have a business and if you have a business, having a trademark or having an LLC or having a whatever doesn’t really matter, right? You’ve got to have product. So really, the question is one around, you know, as you look at all the things that a seller needs to protect they need to protect their personal assets. You need to be operating through a proper business vehicle as quickly as possible. And I’m talking about a limited liability company or a corporation. You know, as soon as you’re able to make that investment, you should do that. Because if your personal assets aren’t protected, you know, your house is on the line, your car is on the line, your personal bank account is on the line, you want that removed from the field of play as quickly as possible. Great. That’s protocol number one. protocol number two is really kind of to your point David, finding a brand name that functions as a trademark and then that’s available right so number one, you know trademark, the best trademarks shouldn’t describe the products. They shouldn’t even be suggestive of the products they should be a fanciful, you know, made up term, the best the strongest trademarks in the world are completely invented. The second strongest trademarks in the world are brands that brand names that are arbitrary things like Apple for computers, right? That’s arbitrary apple. We all know what Apple is, but You know, computers like you would think Apple and computers until they’re put together and they’re sold as a product, right? So coming up with a trademark that functions as a trademark and then one that’s available, you know, doing a clearance search, before you do a full on investment and a trademark application before you actually bring a brand to market, I think is a really good early step because I had a client one time that, you know, they had just, you know, paid me to do a trademark registration, the first thing I do is go and clear the mark and make sure it’s available. And then no one else is using it. They had a really weird name. And it was so weird. I’m like, I’m not going to find any results like this one’s just going to sail right through. I’ll spend five minutes on this and then I’ll move on to the application. And sure enough, like someone not only had someone come up with the same random term, the same made up word, but it was the same exact product that my client had just put an order in for. And so thankfully, we were able to Stop the presses. Were able to do a rebrand very quickly and then get her to market but had she Not done that kind of first step, you know that that clearance search, on best case scenario, she would have gotten the product market, sell it off as quickly as possible hope that other brand that’s already fully registered with the trademark doesn’t doesn’t notice. And then you know, redo some product photos, redo the branding, you know, kill that product detail page, create a new one, it would have been, you know, a little bit of a mess, a little bit of cost. But that’s kind of best case scenario. She’s certainly not winning on that worst case scenario that that brand it was a larger brand is monitoring the space. And as soon as she gets to market, she sued for trademark infringement. And then she’s got to defend the lawsuit. And then she’s either got to settle or go to court and like, basically, her business is dead before it even started, right. So that clearance search, making sure that you’re the brand name, you’ve chosen functions as a trademark and is available. hugely important. You know, in a lot of circumstances, I mean, I would even do, I don’t even do that before you do an LLC or incorporate just because if you’re bringing product to market and you’re slapping a name on it, you’ve got to make sure that that name isn’t taken. Because otherwise you’re going to be doing a lot of course correcting later on down the road. Then once you get those things sorted, your personal assets are protected, you’ve made sure that your brand name is available as a trademark, then you can start thinking about registration and Brand Registry should be done early days just because of the benefits that it gives you in terms of the better listings and the additional advertising. You know, but it’s it’s a it’s a privilege. It’s not a right. You don’t have to have it. I know a lot of people that sell successfully on Amazon, they sell dumb, boring basic products. They’re not really the type that naturally get hijacked. They’re not brand registered and they do just fine right brain registry is further down the road for them. But as soon as you’re able to do that, I think that’s advisable and at that point, you’ve protected your personal assets, you’ve protected your brand. Then you’ve got to start thinking about kind of cleaning up your copyright stuff, right the product photos are assets to your business, your retail packaging as you get that created in this You want to make sure that you’re taking ownership of everything in your business, because you’re either going to need that to fend off the competition later on when you become successful, or when you look to exit, and you want to sell the business, you know, so you know, people who buy businesses, they want to make sure that everything is you know, there’s as little risk as possible somebody is going to shell out six, seven figures for Amazon business. Yeah, you have to have a great product catalog. Yes, you have to have great sales numbers. Yes, you have to have a great profit loss sheet. You also have to have your IP locked down. And that means registered trademarks. And that means registered copyrights. You’re just more likely to get more for your business. If you’ve done those things along the way. Then if you try to do it at the end, or if you haven’t done it at all, so again, never do anything to the detriment of products because if you don’t have products, you don’t have a business. But as I tell clients, make sure that legal is a line item in your budget, and you’ve just constantly got a little money put in those coffers, so that when You’ve got sufficient funds, you can do the trademark clearance, you can do the trademark registration, you can register the copyright. You don’t have to do it all in one in one go. Rome wasn’t built in a day. But if you do it a little bit along the way, you’re just going to be you’re going to be in a good spot.
So Robert than trying to get a pulse on the econ space right now, in terms of violations, IP violations, so we’re like maybe the top one or two calls you’ve been fielding from your clients. You know, Robert, I need help. This happened, this
thing happened. Number one is account suspensions. That seems that there seems to have been a big uptick there. And this is this isn’t so much IP related. But again, it goes to the legitimacy of Amazon’s platform and its sellers are creating their accounts. They’re immediately being suspended and they’re being asked for utility bills. And they’re being asked for, you know, a business license, right. I deal with a lot of sellers who have virtual businesses, right. That’s why you sell private label you want work from your laptop, you want to be on the beach, you know, you know, surfing the internet and you know, getting sales and doing all those sorts of things. And that’s become a challenge for a number of folks kind of understanding what Amazon’s really asking for. Yes, they’re asking for utility bill. But what do you do if you don’t have a utility bill? In the name of your business? What if you’re operating through a virtual address? What if you’re operating through a Registered Agent? What do you do? And so I’ve seen a number of sellers try to give Amazon what they’re asking for but really gumming up the process. You know, when you get that notice as a new seller, Amazon’s basically asking you to verify your identity. Okay, so number one, your business license. That’s not something with your city or your county. They’re asking for your Articles of Organization, they want to see your Certificate of Incorporation, show them that you’re a legitimate business. If you have a utility bill, meaning water, gas, electricity, TV, phone, internet, the list kind of keeps changing a little bit and you You have that in the name of your business, great, awesome, perfect should be a no brainer to get you up and running. If you don’t, well, then you need to provide your personal utility bill and you need to explain to Amazon Hey, Amazon, I’m a real business and here’s my business license and you see my name on the business license. Oh, by the way, I, you know, operate my business out of my personal residence. You know, here’s the utility for my personal residence residence. But you can see, there’s my name on the utility bill, there’s my name on the business license, they’re the same. I’m the same person, please open my account. Right, generally speaking, just being keeping it simple, stupid, you know, giving them exactly what they’re asking for and a clear explanation will help you know, overcome that suspension pretty quickly, where the process gets gummed up and starts to extend out weeks if not months, is just, you know, throwing documents over no explanation, no context giving copies of passports when they haven’t asked for passports giving, you know, I live with my father. Here’s the Here’s my father’s utility bill, but not explaining that, you know, you live with your father. You know, just being honest, being upfront explaining in simple terms generally helps overcome that. So I’ve seen a big uptick in that, in terms of Amazon, making sure that their their platform is is filled with legitimate sellers, which is a good thing for people who are already selling on the platform. I’ve also know the copyright thing that I mentioned earlier in terms of, you know, hijacking, being kind of tamped down and I give your programs like Brand Registry to Dotto, a lot of a lot of credit for that. They have programs like transparency and Project Zero, which are other, you know, brand enforcement programs that Amazon has. I think they’ve done a really nice job of kind of addressing that problem. But where they fallen short, and I suspect what they’ll be addressing next is kind of the more generic, you know, copy and paste copycat thief that we seem to have on the platform right now. So again, I’d circle back to that conversation we had about the Digital Millennium Copyright Act, you know, monitoring the platform and then when you see something When it’s stolen your stuff and taking action on it, you know, I mean, those are your assets you have a right to make sure that someone doesn’t steal them. You know, take advantage of the process that Amazon presents to you and can you file a DMCA takedown complaint?
Very nice. This has been incredibly helpful. We end every episode with a fire round where we ask the same questions. Ken you want to take them out with fire round?
Ken Don’t take me out
I’m as ready as I was born ready.
All right. Excellent. I see you have some books behind you on the on the shelf. What is your favorite book?
You know, it’s not up there but it’s one that I’m reading for the first time and it is it is passed on my Tim is Tim Ferriss books, which I have back there which I love Tim Ferriss, it’s MJ DeMarco is the millionaire Fastlane. If you have not read that as an entrepreneur, you need to it will have for me, it’s articulated a lot of things that I’ve always felt in terms of entrepreneurship and frankly wealth and what wealth really means. It’s an amazing book and I’m only a third of the way through it so I can’t wait for that. The other two thirds it’s it’s pretty it’s for me. It’s been. It’s been groundbreaking.
That is a powerful statement that it surpasses Tim Ferriss books. I’m a huge
well selfishly I love Tim Ferriss because generally just being a lawyer, I read a lot of stuff right and so like when I’m not doing legal stuff, like reading is not generally something that I’m inclined to do even though I know I shouldn’t do it. I love Tim Ferriss stuff because he kind of chunks it out. And it’s consumable in small chunks. And it’s a good message to but MJ DeMarco, I’m telling you read it, it’ll change your life.
Yeah. All right. Next up on the list is what are some of your hobbies?
Some of my hobbies? Oh, geez. I don’t have a lot here. building businesses are a hobby for me. You know, my hobby right now is back in the day. I’ll give you like A kid hobby and then what I do now, I used to be an avid autograph collector and memorabilia collector. So I would spend a good bit of time sending baseball cards, football cards, basketball cards. You know, requesting photos from celebrities, I have a private pretty large autograph collection from from being a kid spent a number of years doing that. And I got into collecting the New York Yankees memorabilia, so signed baseballs and game use stuff. Huge Yankees fans that that was a hobby haven’t touched that for a number of years. So if you’re interested in autographs or Game News, junkies memorabilia, good deal. here recently has been playing around with Facebook groups and understanding how to grow Facebook groups and trying to figure out a way to monetize those and so I I’m always learning and not necessarily through books, although I’m trying to do better about reading. But I took a course on how to grow Facebook groups and I’m the proud owner a Facebook group dedicated to giving daily golf tips even though I’m not a huge golfer, we’ve grown over over 3500 members and they get golf tips every day. And I’m just trying to figure out what I get a kick out of posting stuff in there. You know, repurpose content from from YouTube and link to it. I’ll give the golf quotes. I’ll ask questions. They’re just kind of growing communities i think is a kind of an interesting hobby of mine.
That’s awesome. Yeah, I’ll have to go check out that golf group because I need all the tips I can I can get
one every day. It’s daily golf.
David, do you wanna? Do you want to round out the questions?
You bet? What do you think sets apart successful e commerce entrepreneurs from those that give up fail or never get started?
Ah, gee, is there just one thing if I had to if I had to say one thing, it’s determination. You know, I and I think everybody suffers from this right? We live in a time in a day in a time where we need immediate gratification. If we take this course, by the time we finished, the course, will just have millions of dollars. Or if I sell this product, it’s gonna just take off virally. And you know, I’m gonna make millions of dollars. Life doesn’t happen that way business doesn’t happen that way. You know, you will have failures, and you will have success. And you have to be patient, and you have to be determined. And you just have to kind of push through the uncomfortable and push through those failures to the other side. And if you’re determined, and you’re willing to do that you’re willing to, you know, wait, the inevitable amount of time that is going to be for some people, it’s six months. For some people, it’s six years for some people, you know, it’s 20 years down the road as opposed to just you know, okay, well, that didn’t work. So nothing works. I’m going to go off and just do something else you have to be determined to be successful would be my answer.
Very nice. And lastly, how can people get a hold of you?
Yeah. Oh, yeah, absolutely. If you are a private label seller, Or an e commerce seller and you’re thinking about doing private label, you can head on over to www.privatelabelprotection.com. I have a business protection blueprint that you can download. It’ll lay out in the question we talked about earlier, like, what kind of intellectual property Do you need to think about it, basically lay out the four steps that you should be taking to protect your private label business. So So give it give it a give it a look, give it a download, talks about LLC talks about trademarks, talks about copyrights, and it talks about all the weird stuff that happens when you sell on Amazon like account suspensions hijacks in the light.
Very nice. We will post a link to that in the show notes.
Thank you, Robert. I really appreciate your time. This has been a just awesome interview and to all of our fans, get it get in touch with Robert, for all your intellectual property needs.
I appreciate the opportunity to be on join the conversation always like talking shop and yeah, we’ll speak soon. Oh, sure. Very nice. Thanks.
Thank you everyone for tuning in to today’s firing demand podcast if you’d like to say Episode head on over to www.firingtheman.com and check out our resource library for exclusive firing demand discounts on popular e commerce subscription services that is www.firingtheman.com/resource. You can also find a comprehensive library of over 50 books that Ken and I have read in the last few years that have made a meaningful impact on our business, or that head on over to www.firingtheman.com/library. Lastly, check us out on social media at firing the man in on YouTube at www.firingtheman.com for exclusive content. This is David Schomer and Ken Wilson. We’re out
Transcribed by https://otter.ai