E-tail behemoth Amazon recently filed a lawsuit against Jay Gentile, a California resident offering positive Amazon reviews for a price, otherwise known as “astroturfing”. Gentile offered his service via the domain name “buyazonreviews.com”, among others. Here is how the operation worked in a nutshell: Mom and pop widget company desires four and five star reviews in order to increase consumer confidence and sales; Gentile’s service provides the widget seller with canned 4 and 5 star reviews over a period of months, so that the reviews appear legitimate and avoid Amazon’s review screening filter; and the reviews cost mom and pop about $20 per review. Gentile’s company even went so far as to allegedly orchestrate phony baloney sales in order to achieve “verified” review status.
Quite naturally, Amazon isn’t too happy about all of this. Consequently, Amazon deployed one of its go to law firms to attack Gentile in Court. The problem is, I’m not too sure that Amazon’s lawsuit is legally viable, however, it does have significant strategic and practical value. Because of this, I think it is likely to serve as an astroturfing deterrent.
Don’t get me wrong, I think Amazon is in the right and Gentile, et al., were engaged in fundamentally deceptive behavior. Trust is paramount for an e-tailor. Once the consuming public distrusts the information provided by an e-tailor, its ballgame over. The hard thing for Amazon and other user generated content marketplaces is that it is hard to keep all the bad apples out of the bunch. Just a few can pollute the environment.
Now, on to the law and the inherent legal flaws in Amazon’s suit. First, Amazon asserts trademark infringement claims under the Lanham Act including dilution, unfair competition and cybersquatting. These all appear to be doomed claims because there is no possibility that consumers believed Amazon offered Gentile’s astroturf reviews. It is fundamental to trademark claims that there be a likelihood of consumer confusion. To think that consumers would believe that Amazon sought to pollute the integrity of its own marketplace is a huge stretch.
The remaining claims consist of Washington state law causes including deceptive trade practices, intentional interference with contractual relations, unjust enrichment and accounting. Initially, the deceptive trade practices claim would appear to be most viable. However, two problems pop up after digging deeper. First, and most fundamental, Gentile is not interacting with the consuming public. He is not selling product on Amazon. His clients are. So, direct liability does not appear to exist between Gentile and the consumers or more importantly – Amazon. Gentile’s liability in this regard would appear to be derivative of the sellers purchasing fake reviews. Secondly, most such state statutes require actual financial harm. Unless Amazon can link a fake review to a specific consumer purchase or a lost Amazon user, this element will go unfulfilled.
Unjust enrichment and accounting are really just tack on causes that fail for similar reasons. The remaining viable claim would then appear to be intentional interference with contractual relations. Amazon alleges that Gentile knew that Amazon sellers enter into an agreement with Amazon whereby they promise to not engage in deceptive acts such as review manipulation. Despite knowing this, Gentile continued to peddle his service. If Amazon is required to prove actual knowledge by Gentile, this may be tough. If constructive knowledge is enough, Amazon might have a fighting chance. Ultimately, we get back to the damages issue. I just don’t see how Amazon succeeds in this regard for the reasons set forth in the preceding paragraph.
So why did Amazon file an apparent loser of a lawsuit? Surely, Amazon is not in the business of Quixotic legal battles. My take is that Amazon’s real claims reside against its mom and pop sellers, but it cannot sue its own vendors for fear of alienating all the mom and pop shops upon which Amazon is built. However, Amazon can sue a straw man like Gentile and send a not so subtle message, thereby achieving its goal of curtailing the demand for Gentile’s service. In this regard, the lawsuit is a terrific strategy. Third, it sends an obvious deterrent not only to Gentile but others as well. So, Amazon is attacking the supply side in court and the demand side by proxy. I forecast that Amazon and Gentile will reach an amicable settlement very soon.