'Amazon's Quiet Overhaul of the Trademark System' by Jeanne C Fromer and Mark P McKenna in (2025) 113 California Law Review comments
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.
Margo Bagley comments
The Brand Registry Program rewards owners of federally registered trademarks with a cheap and efficient dispute resolution process, which both allows them to object to uses of their mark on the website and also gain a higher priority in search results than if their mark was unregistered.
Fromer and McKenna identify at least ten impacts of Amazon’s program on the trademark system: Amazon 1) created a shadow trademark system that incentivized applicants to file for federal trademark registrations which 2) swamped, the PTO resulting in 3) significant delays for all applicants (plus a cluttered register) and opportunities for bad actors to 4) fraudulently register “in use” but unregistered marks and then 5) extort the legitimate owners (often small entities relying on traditional trademark priority rules) who would now risk losing the ability to sell goods on Amazon.
In addition, the authors detail how Amazon’s policies led to a change not just in the magnitude of registrations but also 6) in the kinds of marks being registered, nullifying the effect of historical limitations on the registration of 7) descriptive and generic terms (bad actors can register them with the USPTO as stylized marks/use disclaimers, but Amazon’s Registry only matches text so those legal limitations are ignored) while also giving rise to a wide variety of 8) “nonsense marks” (if you’ve shopped on Amazon, you’ve seen them), strings of unpronounceable letters that have no meaning to consumers but qualify for Amazon’s registry which then favors them in search results. As the authors explain, “when search and purchase are not necessarily done by people who need to remember a brand name, businesses just need something to make the algorithm prefer them. Nonsense will do.”
And if these externalities to Amazon’s Brand Registry Program were not bad enough, the company has simultaneously 9) elevated its own brands on its site so that one is more likely to see Amazon brands first in searches, even in searches specifically for other brands. This gives Amazon more power vs. third-party brands and 10) “decenters” branding by blunting the traditional source identification and search cost reduction benefits branding is designed to provide.
