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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