What do you do when your electronic Cease & Desist threats didn’t work? You need to find out who this unauthorized seller is, since it’s unlikely they use their full name or actual business name (although some do). The most obvious next step is a test buy.
There are two ways to do this. If your brand’s product has serial numbering on each package or unit, you are in great shape. Buy the product from each unauthorized seller and track the serial number. Now you have a starting point for your investigation. Either a distributor has a leak in the supply chain, a retailer had to get rid of excess inventory, or a guy uses a retail store, kiosk, or expo booth as a front to sell the product online where it is far more profitable (or else there is a shadow hierarchy which we describe in another article).
But it’s not enough to have serial numbering. If you have your serial number printed on a box in ink, it can easily be removed with nail polish remover and a Q-tip. We recommend having your serial numbered etched on to the product itself, if possible. This is much more difficult to scratch off. Now, if they decide to remove the inked serial number, but can’t remove the etched serial number, you have product tampering which can be a misdemeanor or felony and no longer a civil breach of contract case. Very easy to scare the unauthorized seller off now, or go all in by using a legal team.
The second option is to purchase the product FBM or Seller-Fulfilled Prime, if possible. Let’s say you have an unauthorized seller who sells your product FBA. Take a look at the rest of the inventory, even if it is other brands they are selling. Try to find something that they are selling FBM and purchase it. Do your best to purchase something priced around the Buy Box so they do not get suspicious. In that situation, the worst thing that will happen is that they cancel the order and mark down your name and address, in which case you will need to purchase another product under a different customer account (of which you should have several in multiple zip codes). Be sure not to use your company’s public address or zip code since that is easy to check. If the address is connected to your company on Google in any way, use a different one. Note that the seller may not even have the high-priced FBM item in stock, since many sellers will list an item at an unsellable price for the sole purpose of tracking analytics to see if it is worth it for future inventory.
When you receive the FBM item, check the return address label. If they are smart they won’t list their actual address, but they are still likely to use a PO Box or send from a zip code near their physical location. Now you have a lead, and the brand can check their distributor list to see if they have anybody in that area. Of course, If you have been reading our other articles you will realize that it can be a false lead, but any info is better than nothing.
Now there is a big caveat regarding test buying on Amazon. FBA fulfillment centers have something called commingling of inventory as an option. What that means is that if Seller A sends 10 units of a product to FBA and Seller B sends 5 units of the same product to FBA, the items get mixed. So it does not matter whom you buy from, Amazon takes a random product from those 15 units and packages it. So it is possible that you buy one unit from each seller and both items come back with serial numbers that trace back to only Seller A. You may now think both seller accounts are the same user, when they are not. You are still identifying an unauthorized seller, so it is still a big win for you, but you may not be getting the complete picture. Purchasing two units from each seller is a solution but can be pricey since Amazon does not like it if a customer has too many returns. Commingling is an option for sellers, and not required, but it is very common and you should always be aware of it. If you file a trademark violation on the item, then the correct seller will be penalized, so do not worry about that. FBM and Seller-Fulfilled Prime purchases would be the obvious work-around here. As you can imagine, if the brand is selling their product themselves on FBA, it is not a good look for the item to be commingled with unauthorized sellers, as that can lead to poor reviews and brand reputation since the customer will not know the difference. We always recommend that the brand and it’s authorized sellers turn off commingling when doing FBA.
Brand Alignment specializes in helping Amazon brands protect themselves from unauthorized sellers and MAP pricing violators. Contact us for a free consultation.