Monday, May 23, 2016

Who's responsible for Amazon product detail pages for TM and (c) purposes?

Oriental Trading Company, Inc. v. Yagoozon, Inc., 2016 WL 2859603, No. 13CV351 (D. Neb. May 16, 2016)
This is a pretty interesting dispute because it suggests that Amazon’s business practices may be exposing certain entities who sell through Amazon to substantial business risks, and even discovery may leave outstanding issues unknown.
Yagoozon sells various novelty products through Amazon; OTC sued it for copyright and trademark infringement, as well as deceptive trade practices under Nebraska’s Uniform Deceptive Trade Practices Act and violations of the Nebraska’s Consumer Protection Act. The claims are apparently based on the fact that, for various products OTC sells, consumers can also buy from Yagoozon on pages using OTC’s photos (and perhaps other elements).
The court denied OTC’s motion for summary judgment.  As to direct copyright infringement, the parties disputed whether Yagoozon, Amazon, or another third-party seller was responsible for displaying the copyrighted photographs. Although OTC argued that Yagoozon was the one to select the relevant Amazon product detail pages on which to sell its products and also used the product detail pages whenever it sold inventory, there were genuine issues of material fact exist as to whether Yagoozon “created the product detail pages at issue, edited the pages, and/or is ultimately responsible for the displaying of plaintiffs’ copyrighted photographs.”
“[A]ccording to Amazon’s own documents, in order to create a product detail page, the seller/creator must be advertising a product that is not already available on Amazon.” Once a detail page has been added, the product becomes part of Amazon’s catalog, and other sellers can create listings for the same product.  Amazon also allows product detail pages to be edited after their creation.  Which sellers have control over the product detail page when multiple sellers request edits is determined by Amazon’s algorithm.  OTC didn’t submit evidence allowing the court to conclude as a matter of law that Yagoozon created or was otherwise responsible for the product detail pages at issue. Likewise, there were disputed issues about whether Yagoozon intentionally induced or encouraged either Amazon or any other third-party seller to directly infringe OTC’s copyrighted photographs.
These same issues precluded summary judgment on direct and contributory trademark infringement claims.  OTC argued that Yagoozon chose to use the product detail pages at issue, making it responsible for infringing sales of competitor products under OTC’s marks. But there were genuine issues about whether Yagoozon intentionally induced Amazon or any other third-party seller to infringe, or whether it continued to supply products knowing that the recipient was using the product to engage in trademark infringement.
The same reasoning applied to the state law claims.

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