Monday, June 20, 2016

False endorsement claims based on resale fail

Hart v., Inc., 2016 WL 3360639, No. 15 C 01217 (N.D. Ill. Jun. 13, 2016)

What is the difference between a plausible and implausible allegation of likely confusion over endorsement?  Beats me!  Here, Hart’s pro se complaint alleged that Amazon violated the Lanham Act by allowing resales of counterfeit copies of his books, Vagabond Natural and Vagabond Spiritual.

First, Hart didn’t plausibly allege that the copies were counterfeit, making Amazon’s conduct legitimate under the first sale doctrine.  All he had was “his own conclusory say-so.”  Resales of legitimate goods don’t confuse about source or qualities.

Even without first sale, the confusion allegations failed.  Hart alleged that Amazon’s sales caused endorsement confusion by falsely suggesting that Hart was affiliated with Amazon. “Plaintiff must be able to show that the public believe[s] that the mark’s owner sponsored or otherwise approved of the use of the trademark.”  Because the claim relied on individual third-party sellers reselling Hart’s book, it wasn’t plausible:

The mere fact that Amazon offers a platform to third-party sellers to sell various products and, subsequently, those individuals sold Plaintiff’s books, does not imply that Plaintiff has endorsed Amazon or has any specific affiliation with Amazon. This is not the reality of commerce. As a comparison, a shopper at a bookstore does not automatically believe that just because a used book is appearing at the store, the author is expressly endorsing that store. The same is true for a book that is resold on Amazon.

Note how limited this is: the analysis would apparently need to differ if Amazon were selling the products directly.  If taken seriously, of course, that could destroy first sale, at least where the goods had not actually been used before resale.

State law claims also failed, including a promissory estoppel claim based on Amazon’s alleged representation that it would remove Hart’s books from its website within 2-3 days of receiving his request to remove the books. Amazon wrote: “Thank you for your message. Please be advised that we are in the process of removing [Vagabond Natural and Vagabond Spiritual] ... from It typically takes 2-3 days for a listing to disappear once it has been removed from our catalog. We trust this will bring this matter to a close.”  There was no unambiguous promise that the process would only take 2-3 days, and Hart acknowledged that the books were eventually removed.  “These allegations do not articulate a clear, definite promise that would support a promissory estoppel claim.”  [Useful guidance for those worried about promissory estoppel claims evading §230.]

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