From Judge Kari Dooley's decision earlier this month in Ligeri v. Tischer (D. Conn.) (a lawsuit over sales of "moleskin, nutritional supplements, sporting goods, housewares, and the popular 'Green Sky' brand rubber ducks"):
Plaintiffs Benjamin Ligeri and Central Concepts Inc. … have moved for a temporary restraining order … and therein seek a mandatory injunction requiring Defendants, Joshua Tischer, Optimistic Investments, Inc. and Michael Murphy to retract certain complaints they have allegedly made to Amazon and to cease and desist the filing of other complaints….
By verified complaint, Plaintiffs assert that the Defendants have and continue to tortiously interfere with their business expectancies, specifically their ability to sell products using their Legacy Account on the Amazon sales platform. The Defendants are alleged to have filed false and frivolous claims with Amazon that Plaintiffs' products either: infringe a copyright; infringe a trademark; or are counterfeit, all of which would violate the Amazon platform policies. As a result, Amazon has removed some of Plaintiffs' products from the website resulting in lost sales. Plaintiffs allege that this conduct can result in the diminished value of the Legacy Account and might ultimately destroy Plaintiff's ability to do business on the Amazon platform entirely. Finally, Plaintiffs assert that the loss of a Legacy Account cannot be addressed through damages given the various advantages afforded such accounts which once lost, are lost forever.
On the papers submitted, the Court cannot conclude that the Plaintiffs have shown a "clear and substantial" likelihood of success on the merits of their claim. In order to find that the Defendants' conduct was tortious, the Court would be required to find that the complaints were false or frivolous. In order to determine that the complaints were false or frivolous, the Court would need to assess whether the Plaintiffs' products infringed a copyright, were counterfeit, or infringed a trademark, which in turn requires detailed and sometimes nuanced analysis under very complex bodies of law. The Plaintiffs ask this Court to summarily decide that no such infringement has occurred by looking at internet screenshots of the products at issue. This the Court cannot do. Although there is evidence from which to infer that the defendants are selectively targeting the Plaintiffs, e.g., allegations that the Defendants are not challenging other sellers of similar products, this does not establish one way or the other whether the complaints themselves are frivolous or false.
