misrepresentation to Amazon isn't "commercial advertising or promotion"

Amazon.com, Inc. v. Wong, 2024 WL 553695, NO. C19-0990JLR (W.D. Wash. Feb. 12, 2024)

This default judgment actually analyzes the false advertising claims, which is why I note it. Amazon and Nite Ize sued Wong for selling hundreds of thousands of dollars’ worth of counterfeits of Nite Ize’s mobile device mounting products on Amazon using “false credentials, including aliases, forged bank records, and fabricated invoices” to create accounts. Obviously, the trademark-related claims succeeded.

However, the false advertising claims by Amazon failed, because Amazon didn’t allege that defendants made false statements in commercial advertisements for the purpose of influencing consumers or that Amazon was in competition with Wong. (The default raises its ugly head, since Lexmark would deal with the second issue). Instead, Amazon alleged only that defendants made false, misleading, and deceptive statements that “were material to Amazon’s decision to allow them to sell their goods on the Amazon store because Amazon would not have permitted them to sell their goods but for the deceptive acts.” This wasn’t commercial advertising or promotion.