Influencers Are on the Hook: Amazon Is Ramping Up Its Counterfeit Detection Efforts

*** The writing does not, and is not intended to, constitute legal advice by any means***

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From Amazon's Complaint

Since Amazon's ambitious launch of Luxury Stores, its luxury-exclusive platform, back in September, the e-commerce behemoth has been intensifying efforts to ferret out luxury counterfeits traded on its website by third-party sellers. Beyond the usual culprits, influencers are now on the hook. On November 12th, Amazon sued two fashion influencers for having engaged in an elaborate scheme to advertise and promote a number of fakes in concert with third-party vendors. Amazon claims (rightly, in my opinion) that such conniving scheme amounts to false advertising strictly prohibited under the Lanham Act. See 15 U.S.C. § 1125(a). In its complaint filed with the United States District Court for the Western District of Washington, Amazon made clear that the central aim of this lawsuit is to enjoin them altogether from "causing future harm to Amazon's customers", in addition to "hold[ing] Defendants accountable for their illegal actions", essentially framing the litigation as a matter of consumer protection.

The complaint named Kelly Fitzpatrick and Sabrina Kelly-Krejci as co-conspirators. They are accused of helping counterfeit sellers evade Amazon's sophisticated counterfeit detection tools. For example, the complaint alleges that this pair of influencers "publish[ed] videos, photographs, and detailed descriptions of clearly infringing products" on their social media and other websites. Their flagrant conduct did not end there: they went a step further by sharing "link[s] to offer listing pages in the Amazon store". When they shared those links on their Instagram Stories, they knowingly placed the phrase "ORDER THIS/GET THIS!", unabashedly indicating to their viewers that they would receive the items featured on their Stories (fakes) rather than the ones displayed on the re-directed pages. Because of this willful re-directing, Amazon states that it could not track down the listing pages it otherwise could have easily done so. As remedies, Amazon asks the court to permanently enjoin Defendants from selling products in the Amazon store or participating in similar behaviors to that effect. Also, it requests the court to order them to produce a detailed accounting book in connection with their illegal activities and disgorge all actual and special profits they derived from this fraudulent scheme.

To its credit, Amazon has expended tremendous resources to crack down on counterfeit goods circulating on its digital platform. Since 2018, it instituted programs titled "Transparency" and "Project Zero", the latter of which gave luxury brands an access to Amazon's removal tools. Once given the access, brands were allowed to remove listings featuring counterfeits masquerading as originals. Amazon's continued efforts to crack down on fakes are understandable and even laudable as it has expanded to the luxury retail business. Its reputation and reliability are at stake. Just a few hours ago, Amazon announced that it is partnering with the National Intellectual Property Rights Coordination Center, a U.S. government watchdog, "to proactively stop the sale of counterfeit products", clearing sending out the message to potential infringers that no counterfeiting will be tolerated on its watch.