Amazon protects brand by suing for breach of contract, not trademark infringement
To protect the brand integrity and reputation associated with its name, Amazon has filed suit against over 1,000 individuals in Washington state court – for breach of contract. The case illustrates the importance of a comprehensive brand plan, extending to inclusion of provisions within website terms of service.
Amazon’s brand suffers when positive customer feedback for third-party sellers is “astroturfed.” Some third parties offering products for sale through the popular e-commerce site have hired shills to post positive product or service reviews – for a price. Earlier this year, Amazon sued a number of websites to block sales of such fake reviews. As described in the current complaint, Amazon’s reputation is impacted by the authenticity of customer reviews:
Each day, millions of consumers use Amazon’s websites to assist with their purchasing decisions. In order to make those decisions more informed, Amazon publishes customer reviews of products and services available on Amazon.com. Amazon pioneered customer reviews 20 years ago and is now home to hundreds of millions of unique reviews. Reviews provide a forum for sharing authentic feedback about products and services – positive or negative. Amazon does not remove reviews because they are critical; Amazon believes all helpful information can inform its customers’ buying decisions. As long as they abide by Amazon’s Customer Review Guidelines, Amazon’s customers can review and rate products or services available on Amazon’s websites. Honest and unbiased reviews allow customers to trust that they can shop with confidence on Amazon.com; reviews also help fulfill Amazon’s mission to be Earth’s most customer-centric company. In short, Amazon takes the credibility of its customer reviews very seriously.
Even the small number of “false, misleading, and inauthentic customer reviews,” Amazon says, “can significantly undermine the trust that consumers and the vast majority of sellers and manufacturers place in Amazon.”
While trademark law is the typical vehicle for protecting an enterprise brand, the recent lawsuit is based on contractual terms of service. The first suit, against “buyamazonreviews.com” and similar sites, included various claims based on Amazon’s federally registered trademarks: infringement, unfair competition, dilution, and cybersquatting. The website now targeted by Amazon is Fiverr.com, a “gig” site that allows advertising of services starting at $5. Amazon sued over 1,000 users of that site for offering and providing fake reviews in violation of Amazon’s terms of service:
Amazon prohibits paid reviews, as clearly provided in its Customer Review Creation Guidelines that are part of its Conditions of Use . . . . Defendants have violated the Conditions of Use and have breached their agreement with Amazon, as a result of which Amazon has been damaged in an amount to be proven at trial.
Noticeably absent from the complaint is any claim based directly on Amazon’s trademarks.
Every enterprise with any type of online presence allowing third-party ratings needs to carefully plan for tools preventing exploitation by others. Contractual provisions with users of the website should be part of that plan.