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 before, 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 United States 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
There isn’t too much to say about my FRETREE gloves, which were $7.99 with free next-day shipping. They are, in quality and in origin, the sort of thing I might have bought at the discount store down the street (albeit there under names such as “Gold Medal,” “Polar Extreme» and “ThermaX”). 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 more popular of which have hundreds of positive reviews. 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, and holds two other trademarks with the U.S.P.T.O.: Dralegend and Corlitec, under which an assortment of products are listed on Amazon, including alarm clocks, flashlights, blowtorches and yoga mats.
Almost half of top Amazon sellers — those selling more than $1 million in the U.S. — are in China; about a third of Amazon’s Chinese sellers overall are estimated to be in Shenzhen. (This according to Marketplace Pulse, which tracks e-commerce marketplaces.)
Amazon shuttered its Chinese store, Amazon.cn, in 2019, after it failed to crack a market dominated by domestic giants like JD and Alibaba.
But it has been much more 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 like Taobao.
A seller in America 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. He advises his clients to build brands that might succeed in different contexts — on Amazon, sure, but also through Shopify, or in a physical retail store. Factory-direct brands in China, Vietnam and Eastern Europe might see in Amazon a simple sales channel.
“It’s branding versus selling,” Mr. Golzari said. “If you’re selling massage guns” — a category where there is no pre-existing 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. According to Helium 10, a service that tracks sellers on Amazon, one of the most successful deep-tissue massager brands, Opove, which is based in Shenzhen, is selling more than a $1 million worth of products each month. Its trademark, which describes nail clippers, scissors and electric razors, does not mention massage devices. Numerous smaller brands, including WuBeFine and UGBDER, are clearing six figures in monthly sales, driven by high search placement and customer reviews.
That’s not to say that conventional branding doesn’t matter on Amazon. The company has been courting major brands since the early 2000s. More recently, it has created hundreds of its own market-researched brands and fostered outside-but-Amazon-exclusive brands from companies large and small, even assisting, in some cases, with marketing — particularly when the partner is based abroad. 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. To the extent it has a brand, it’s more Amazon than UGBDER: sold under the Amazon banner, through Amazon Prime, fulfilled by Amazon and shipped in an Amazon box, perhaps even purchased through an Amazon device.
Reviews and search placement are important for any product on Amazon; in categories dominated by new and unrecognizable brands, getting an edge within Amazon’s various systems is singularly important. These categories attract sellers willing to practice black-hat tactics, including fake reviews, click-farming to boost search results, and competitor sabotage. Sellers operating under barely-established brands have a lot to gain and little to lose if Amazon decides they’ve gone too far. (A seller that depends on years of brand recognition needs to tread carefully; a factory selling under a half-dozen interchangeable trademarks, maybe less so).
The result is something like a trade war in miniature, with corresponding Amazon-specific battles over intellectual property, counterfeit products, product pricing and business ethics. “Even Amazon doesn’t really know how it works,” Mr. King said. “They know the big corporate picture, but the guerrilla marketing, the fake reviews, all the manipulation. They don’t understand it.”
”We work hard every day to protect the shopping and selling experience in our store,” an Amazon spokesperson wrote in a statement. “Bad actors that attempt to abuse our systems make up a tiny fraction of activity in our store, and we continue to evolve our tools and techniques to stay ahead of them. We invest significant resources in automated machine learning, manual investigations, and partnerships with others that are making it increasingly difficult for bad actors to commit abuse.”
Each internet platform is an economy unto itself, enabling different sorts of trade and transactions. Amazon’s economy is among the most instantly recognizable — it’s a place where you can buy and sell goods — and yet, as the undisputed leader in American e-commerce, it has started warping the familiar concepts on which it is built. It’s a place where feedback and testimonials, for example, have been formalized into something that can, and should, be obtained before your product really exists in the world; where “sellers” are both powerfully mercenary and yet worryingly feudal; where “shoppers” rank products first by logistical processing and shipping time, then by physical trait. It’s a place where it might be useful to have a brand like Carhartt, but perhaps not as useful as having accumulated the right metadata, or status, behind an interchangeable non-name: search ranking; ad placement; the right number of stars composed of reviews by the right number of people, the rate at which people click your listing, and the rate at which those people actually buy something.
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, as you might notice on eBay, nor descriptive of the products in any obvious way, as with forgettable, semi-generic brands stocked in brick-and-mortar stores or by other online retailers. 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 American 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 — even if they don’t sell there.
“For brand owners, enrolling provides you with powerful tools to help protect your trademarks, including proprietary text and image search and predictive automation,” the company declares. 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 says 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, in other words, and doing so without a pre-existing 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 an American 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 super-registerable, 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 American law firms in total trademark applications for 2019.
Many of Mr. 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 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.
“I think the name of the brand has become less and less important,” said CJ Rosenbaum, an intellectual property lawyer who estimates that between 10 and 15 percent of his clients are seeking basic registrations for cross-border e-commerce brands.
Mr. Wang added that “marketing is probably more important” than the names themselves. That’s marketing in the Amazon sense: Amazon ads, Amazon reviews, Amazon search. Lately, he’s seen an uptick in attempts to copy brands that are popular only on Amazon. In that universe, at least, a Pvendor glove might be as appealing a target for counterfeiters, or brand hijackers, as a Carhartt.
In creating brands that are both utterly, legally unique and intended to not sound foreign to customers in the coveted American market, cross-border e-commerce sellers have landed on a branding language that has, if not rules, then patterns, or a something like a style. They aren’t the first: Ever notice how strange and yet strangely similar new drug names are? Pharmaceuticals, in addition to needing unique and defensible trademarks, are subject to their own market-specific limitations. Among the demands of the F.D.A. are that a proprietary drug name can’t be easily confused with another, and that it needs to be immune from confusion around the world, in any language. It needs to be both memorable and easy enough to spell for doctors to write it on prescription pads. It can’t be too evocative or imply superiority.
This helps explain why, in 2019, the F.D.A. approved drugs with names like Ubrelvy, Beovu, Aklief, Recarbrio and Jeuveau. Brands for drugs to treat migraines, macular degeneration, acne, U.T.I.s and glabellar lines. Names that wouldn’t be out of place attached to an Amazon listing for “-20°F(-29℃) Thickened Knit Winter Gloves for Men and Women, Touch Screen Fingertips, Elastic Cuff, Thermal Soft Lining, Very Warm for Cold Weather.”
The Trademark Rush
Among trademark attorneys, and at the U.S.P.T.O., 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 percent of all U.S. trademarks were filed by Chinese applicants. The year before that it was 10 percent.” Most of the time, he said, trademark registrations tend to originate from larger firms filing for many marks, though that does not appear to be the case in China. “Very few companies are filing for more than one application,” Mr. Reading said.
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 U.S.P.T.O. (It turns out that bYwxbYjb sells products on AliExpress, which has a brand registry of its own called AliProtect. The product listings, which include pencils, barely feature the name.)
Speaking to a House subcommittee in 2019, the U.S.P.T.O. 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 U.S.P.T.O. 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,” Ms. Denison said, “threaten to undermine the reliability of the trademark register.”
As a countermeasure, the U.S.P.T.O. 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.
This requirement made the process of acquiring a trademark more expensive, but it also created new business opportunities: In August, the World Trademark Review reported that Chinese law firms had been reaching out to their American counterparts inquiring about idle trademarks, and whether they might be up for sale.
In an interview with Inventor’s Digest magazine in February 2019, Ms. 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 only take a fraction of that number to create noticeable change at the U.S.P.T.O; taking into account that trademarks are being reserved for future use as interchangeable e-commerce verification documents, the connection is difficult to dismiss.
Asked if the U.S.P.T.O. had any information as to the reason behind the rise in foreign applications, which have placed the office, and the entire American trademark system, under immense strain, Paul Fucito, the U.S.P.T.O. press secretary, responded: “The U.S.P.T.O. does not have any evidence that would illustrate the intentions of those applying for registration before the U.S.P.T.O. We assume the increased demand for U.S. registrations could be related to the significant growth of e-commerce retailing, but have no proof of this.”
Others were less reluctant to name the cause. “It’s almost 100 percent due to Amazon sellers and e-commerce sellers,” said Mr. King, “because once they have a trademark on file, Amazon opens up a lot of additional reporting and capabilities.”
Mr. Wang, the trademark lawyer, was more specific. “A huge number of vendors from China and other countries are working on Amazon,” he said. “There’s a huge demand for trademarks. A huge uptick.”
“We sell the products that are popular on Amazon.”
Contributing to the confusion is the narrow but significant value of a trademark within Amazon. While the U.S.P.T.O describes trademarks as “brands,” that 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 on-boarding process.
FRETREE, for example, was trademarked in July of 2019, just before the August attorney rule went into effect. (The application was filed in January.) Among its specimen photos is an ice cream scoop with what seems to be the FRETREE logo digitally superimposed — the sort of thing that, as the U.S.P.T.O. told Congress, might amount to “bad faith.” To Amazon’s platform, however, FRETREE is as much a brand as any other. And perhaps to me: I was shipped a pair of its gloves, along with likely thousands of other people. The trademark system works, at least for Amazon.
Various glove brands that appeared on page one of Amazon’s search results, including VBIGER, Pvendor, MAJCF and SHSTFD, did not return requests for comment.
FRETREE, however, did.
“There is meaning,” wrote the seller, who identified only as the manager of the brand. Its brand refers not to its products, but rather back to the experience of building a business on Amazon. The company wants to grow its business, the manager said, “like a tree.”
“‘Fre’ is cut from ‘Freely,’” the person said, referring to a wish that customers will “buy our products from our store freely.” (One could imagine a similar story behind Pvendor.) Asked what sort of store it was, and how he or she chooses what to sell, the person gave an answer that was similarly Amazon-focused: “We sell the products that are popular on Amazon.”
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.
That a string of incremental changes to Amazon’s seller platform may have manifested as a mysterious crisis at the sleepy United States Patent and Trademark Office, via Shenzhen, sounds, well, not exactly cyberpunk, but at least a little bit sci-fi. These same changes have gradually altered what it means to be an Amazon seller — the rise of cross-border e-commerce, and an influx of new sellers who see Amazon not as a place to test a brand, or to start an external business, or as a tool to get started, but rather as a simple distribution channel to be exploited to its maximum potential, is something that Amazon sellers in America see as a challenge, or even as a crisis.
Amazon’s peculiar relationship with trademarks is slowly but surely altering the greater brand atmosphere. I ordered my FRETREE gloves for this story, but I’ll wear them — they’re fine. There’s already an MZOO sleep mask in our bedroom, and SPEXCEL cycling gear in my closet. There are MARSHEEPY sneaker deodorizers in my old shoes and an AZMKIMI replacement remote for a Sony TV, which I’d recommend by name if anyone asked. A Suptempo gel seat cushion ended up in my grandparents’ home based on a word-of-mouth recommendation. The recreational path that I take to work is a parade of athletic apparel — for years now, the flow of logos from Nike and Under Armour and Rapha and Lululemon has been speckled by runners in head-to-toe Baleaf and cyclists with loud jerseys branded SPONEED.
These brands are certainly reaching customers, who are spending untold millions of dollars to buy products with names that are more trademark than brand, and more Amazon than both. At 4-Star, Amazon’s brick-and-mortar store in Manhattan, however, they’re absent. A display touting the “latest innovations from emerging brands” offered SmartyPants vitamins, Animoodles magnetic stuffed animals, Tile Bluetooth trackers and a LectroFan white noise machine. Some displays were dedicated entirely to well-known brands, such as Kingston, which makes electronics accessories.
Others, under signs like “Customer Favorites,” seemed to be playing reputational experiments, placing Le Creuset cookware next to kitchen goods from AmazonBasics — the ubiquitous house brand that can, with a few successful items, wreck an Amazon product category for pseudo-brands and venerable brands alike. On two small displays with hats and gloves were tidy collections of gloves, said to be popular with Amazon customers. No VBIGERs or Rivmounts or Pvendors here. Just some Isotoners, and a few options from Carhartt. The only FRETREEs in the store were the ones on my hands.