Amazon offices in Vancouver, British Columbia, Canada.  Photo: Mike Scarcella/ALM

Retail giant Amazon launched a new intellectual property (IP) accelerator at the start of October geared toward pairing small to midsized businesses with the legal expertise needed to maneuver the trademark filing process. However, don't count on it becoming an industrywide trend in the e-commerce space just yet.

The basic premise behind Amazon's accelerator is simple: Companies will be able to choose from a pre-arranged network of law firms that have agreed to provide their services for a locked-in rate.

There's a chance that Amazon is hoping that a preponderance of registered trademarks will act as something as a scarecrow in its extensive online marketplace, which has struggled to combat the presence of knockoff goods. Whether the program has legs beyond that could depend largely on whether or not small companies think it's worth it to invest in a licensed trademark.

"Amazon is not doing this out of the goodness of its heart," said Kenneth Weatherwax, a managing partner at Lowenstein & Weatherwax. "Amazon wants to move products through Amazon. This is in the best interest of Amazon to help its users protect their intellectual property."

To that end, lawyers like Janet Moreira—whose Maven IP counts itself among the accelerator program's network of pre-vetted firms—will provide services that range from investigating brand usage conflicts to filing trademark applications. Amazon, meanwhile, will provide businesses participating in the accelerator program with access to "brand protections" across its stores even before a trademark is officially issued.

"At a minimum, it definitely promotes the protection of intellectual property," Moreira said.

Still, if sellers prove willing to bite the bullet and expend the legal fees necessary to register a trademark, could other e-commerce platforms be tempted to launch their own IP accelerators? Moreira thinks because Amazon casts such a large shadow in the retail world, other vendors will be watching.

"I'm sure other e-commerce platforms will pay more attention to intellectual property," she added.

However, Eric Giler, CEO of the IP protection company Ciprun Global, thinks most e-commerce sites are still trying to keep up with Amazon when it comes to the regular course of business, let alone IP protection efforts.

"I don't see anyone sort of positioned anywhere near similar to Amazon that has the power and the reach necessary to do it," Giler said.   

There are potential benefits for sellers who participate in the program beyond Amazon's own reputation or bottom line. Moreira pointed out that protecting and enforcing IP can be more challenging online due to the perception that items such as designs or photographs available on the internet are free for anyone to use.

Young companies also don't do themselves any favors by attempting to undertake the trademark registration process without the aid of counsel, or by simply foregoing it altogether.

"There are some mistakes that can fixed during the application process, but most cannot," Moreira explained.

Brian Michalek, an IP attorney with Saul Ewing Arnstein & Lehr, echoed some of those sentiments. He said that negating trademark due diligence can come back to haunt companies further down the road if they discover that another entity has already laid claim to a similar name or product.

"Because now it costs a lot of money to change in midstride after you've started developing customer channels and things like that," Michalek said.

However, while registering for a federal trademark likely can't hurt a small or medium-sized business, it also may not be strictly necessary. Weatherwax noted that trademarks exist under common law, meaning that it starts when a mark or property is used in commerce for the first time.

Still, by incentivizing sellers to formally register for a federal trademark, Amazon may be hedging its own bets. "[Federally registered trademarks] improves enforcement, but maybe what Amazon is thinking is that would be some indicator of the quality of the trademark. Amazon would simply then not have to take the word of the trademark asserter that it's a good trademark," Weatherwax said.