Weekend Warrior Clothing, a North Carolina-based company which sell apparel, recently brought two separate claims against Google and Amazon, in relation to the sale of ‘Merch on Demand’ goods by a third party, which contained copies of their designs, which were being advertised on Google’s advertising service and Amazon’s retail platform. Judge Cole, of the Southern District of Ohio dismissed the copyright claims against Google but allowed the claims against Amazon to proceed.
Against Google, Weekend Warrior alleged that the third-party infringers had purchased Google Shopping Ads, which allegedly appeared prominently in search results, and also that Google failed to respond to its infringement notices. It was held by the judge that this was not direct copyright infringement, finding that Google’s conduct did not show the requisite level of intent for direct liability, on the basis that the system matching advertisements to searches is automated. Further the judge dismissed the contributory infringement claim, stating that there was insufficient evidence showing that Google had caused the infringement by providing a service which tailors to infringement.
Against Amazon, the claim was based on the fact that Amazon displayed around 560 listings which featured the counterfeit goods though its Merch on Demand service, which allegedly generated more than 20,000 orders over a five year period. In contrary to its decision on the Google claim, the court found that Amazon had a more conscious involvement with the process of generating and selling the infringing goods and thus, may be liable for direct infringement. The claim for vicarious infringement was also sustained on a similar basis. It was also found that Amazon did not handle Weekend Warrior’s infringement notices properly, failing to implement its repeat infringer policy appropriately.
It will be interesting to see how the claims against Amazon progress. It is also worth noting that the judge dismissed the claim against Google without prejudice, giving the claimant 30 days to request to amend its claim. These claims show the importance of distinguishing the extent of the involvement of a platform in infringing activity, being that there are other factors in establishing liability rather than just knowledge of the infringements taking place.
If you have any questions on the above, please do not hesitate to contact the team at McDaniels Law on 0191 281 4000 or legal@mcdanielslaw.com.
