Can I sign up for Amazon Brand Registry 2.0 if my trademark has not yet registered?

Unfortunately, no. Amazon Brand Registry 2.0 only accepts registered trademarks.

There are two types of trademarks: common law trademarks and registered trademarks. These two categories are not at all mutually exclusive; a common law trademark can become a registered trademark, and virtually all registered trademarks have a common law basis. Only registered trademarks can be relied on for Amazon Brand Registry 2.0.

Common law trademarks are trademarks which are used but not registered. Owners of common law trademarks develop rights in such marks geographically, as the mark is used with products or services that are offered and sold geographically. For example, if you sell bath products in Arizona, you develop common law trademark rights in the name of the bath products in Arizona. As you sell the bath products into other states – Nevada, California, New Mexico, you will begin to acquire trademark rights in those states as well. But if you haven’t sold into Kansas, or Texas, or Ohio, for example, you don’t have rights in those states.

Internet sales complicate this a bit. If you sell on Amazon, for instance, you have offerings that are available across the entire United States. Your common law rights will depend on each state’s laws governing common law rights arising from Internet use, but often this test is a multi-factorial one weighing on the number of sales into the state or other targeting or advertising activities associated with the state.

Contrasted from common law trademarks, registered trademark are those that have been vetted and approved by the United States Patent and Trademark Office. These are trademarks that have been filed, examined, approved, and registered through the USPTO, in a process that takes at least 6-7 months. Your ability to federally register a trademark requires that you use the mark in interstate commerce (which has its own particular definitions and requirements), and also that there not be any confusingly similar trademarks already registered or pending before the USPTO. And, of course, you must prepare and file the trademark application correctly.

At the time of this writing, Amazon Brand Registry 2.0 is only available to trademarks which have gone through the entire registration process at the USPTO, not common law trademarks. An application that has been filed and is still pending cannot support sign up to Amazon Brand Registry 2.0. Rather, Amazon requires that the mark have fully processed through the USPTO and issued as a registration. Because trademark applications take at least 6-7 months to process, and any hiccups can slow that process, it is recommended that those wishing to register with Amazon consult a trademark attorney to mitigate the risk of delays.