wrongfully claiming Amazon ASIN might be false advertising, even with foreign TM rights

Best Glide Aviation Survival Equipment, Inc. v. Tag-Z, LLC, No. 1-23-cv-1080-DAE, 2025 WL 3454210 (W.D. Tex. Aug. 20, 2025)

This case involves an alleged abuse of Amazon’s system to keep out legitimate competitors. Amazon is so big it can help other, smaller would-be monopolists! The parties compete to sell military style P-38 and P-51 can openers, stamped with “U.S. Shelby Co.” Best Glide alleged that U.S. Shelby openers were originally manufactured by Mallin Shelby Hardware until 1983, when the company dissolved, and since then, they have been manufactured, distributed, and sold by various entities.

Best Glide alleged that it began such sales in 2009; that it was well known in the community for making such sales; and that the public has come to associate it as a provider of U.S. Shelby openers on its own website and on Amazon’s. (Seems unlikely, but I don’t think it needs to be true for Best Glide to be in the right here, given what comes next.)

Each product on Amazon has an Amazon Standard Identification Number (ASIN), “akin to a serial number.” Amazon’s Brand Registry Program allows a seller to become a brand owner by registering a brand name, registered trademark, and/or trademark application into the program. “Once entered in the program, a brand owner controls both the content of an ASIN and who is listed as a seller on an ASIN.” With a generic ASIN, no one seller controls the listing or who may be listed as a seller.

Tag-Z filed for, but later withdrew, a trademark application for “US Shelby.” It also filed trademark applications for “P-38” and “P-51.” Best Glide’s opposition to those applications is suspended pending resolution of this case. Tag-Z possesses German trademark registrations for “P-38,” “P-51,” “US SHELBY,” and “US SHELBY CO.” It allegedly used these to enter the Brand Registry Program and block US sales.

Specifically, Amazon informed Best Glide that Tag-Z had registered one or more of its marks in the program and thus was now the brand owner for the previously generic ASINs. This allegedly led to a marked decline in Best Glide’s sales.

Stretching the definition of “commercial advertising or promotion” a little, but not in any way I find troubling, the court found that Best Glide stated a claim for false designation of origin/association/endorsement and unfair competition/false advertising under the Lanham Act and coordinate state law claims.

The court lumped false designation of origin, association, or endorsement together under §43(a)(1)(A), then applied (B) standards to the claim, including materiality. (This is really mostly a (B) claim.)

The (A) claim was predicated on the idea that, by exploiting the Brand Registry loophole, Tag-Z was able to misrepresent that associated reviews should be attributed to it, when they in fact should be attributed to Best Glide; this was plausibly material “since it can be inferred that customers will be influenced by reviews believed to be associated with Defendant when they are in fact attributable to Plaintiff.”

Likewise, the (B) claim survived because it was plausible that the ASINs are commercial advertisements about the good’s designation of origin, association, or endorsement. They were plausibly (1) commercial speech, (2) for the purpose of soliciting business, and (3) sufficiently disseminated to a relevant public audience. ASINs are (as alleged) not only serial numbers, but the shorthand method of describing a product webpage. “[G]iven that consumers can see the associated ASINs on the Products’ webpage listing, the Court finds Plaintiff has pled the speech is sufficiently disseminated to the relevant public audience.” [Yeah, but is it plausible they’re paying attention? I think this could also be analyzed as a series of commercially motivated false statements to Amazon, which is such a big intermediary that misstatements to it are sufficiently disseminated to a relevant audience.] And “Defendant’s excluding other sellers from using the ASINs and thereby positioning itself to consumers as the exclusive seller of these Products with reviews which should be attributed to Plaintiff is sufficient to plead a misrepresentation.” [Note the one-from-column-A-and-one-from-column-B approach here: the commercial speech is the ASINs, but then the misrepresentations come in the reviews associated with the ASINs. I suppose this is analogous to situations where a pharmaco claims “genericity” for something that isn’t bioequivalent, etc.—the ASIN is sufficiently concentrated information, in this context, that it functionally contains the statements associated with it, here the reviews.]

The similar state law claims survived, but tortious interference with contract failed because the complaint (somehow?) didn’t allege the existence of a contract between Amazon and Best Glide. Moreover, Best Glide failed to allege that any contract between itself and Amazon obligated Amazon to allow it to sell products under specific ASINs. “In the absence of a contract requiring that obligation, Plaintiff cannot allege such a contract was breached.” Likewise, tortious interference with prospective economic relations failed for want of alleged interference with a specific prospective contract or client relationship.

Business disparagement also failed because no allegedly false statement was “about” Best Glide, much less defamatory.