Amazon, Nintendo Sue 'Doe' Sellers for Counterfeit E-Commerce Sales

At various times from March 2021 to April, the defendants in a fraud lawsuit marketed, distributed and sold counterfeit Nintendo products on Amazon.com using Nintendo’s trademarks, without authorization, alleged co-plaintiffs Amazon and Nintendo in a complaint Friday (docket 2:23-cv-01641) in U.S. District Court for Western Washington in Seattle. Defendants Does 1-10 are currently unknown to the plaintiffs, said the complaint.

Defendants infringed and misused Nintendo’s intellectual property; breached their contract with Amazon; “willfully deceived and harmed” Amazon, Nintendo and their customers; “compromised the integrity of the Amazon Store”; and “undermined the trust” customers place with both brands, said the complaint. Plaintiffs have spent “significant resources to investigate and combat” defendants’ wrongdoing, it said.

Defendants are a collection of individuals and entities that conspired and operated in concert with each other “to engage in the counterfeiting scheme” alleged by plaintiffs, said the complaint. Defendants operated, controlled and were responsible for nine accounts that sold counterfeit Nintendo products, and they infringed 27 trademarks, it said.

To become a third-party seller, defendants agreed to the Amazon Services Business Solutions Agreement (BSA), said the complaint. By entering into the BSA, sellers represent and warrant that they will comply with all applicable laws in the “performance of its obligations and exercise of its rights” under the BSA, it said.

The BSA identifies the sale of counterfeit goods as “deceptive, fraudulent or illegal activity” in violation of Amazon’s policies, and Amazon reserves the right to withhold payments and terminate the selling account of any bad actor that engages in such conduct, said the complaint. The BSA requires the seller to defend, indemnify and hold Amazon harmless against any claims or losses arising from the seller’s actual or alleged infringement of any intellectual property rights, it said.

Sellers are also bound by Amazon’s anti-counterfeiting policy, which prohibits the sale of counterfeit goods on Amazon. Sellers must provide records about the authenticity of the products they sell, if requested. They are prohibited from selling products that have been illegally replicated, reproduced or manufactured, the complaint said. Customers who violate the policy will have their selling account immediately suspended or terminated, the complaint said.

Nintendo reviewed physical samples and/or images of Nintendo-branded products sold by defendants’ selling accounts and “determined that the products are inauthentic,” said the complaint. Though the products bear Nintendo trademarks, Nintendo “never authorized the sale of such products,” it said. In addition, certain defendants submitted “falsified invoices” to Amazon, purporting to show that their products came from an authentic supplier, the complaint said.

Amazon and Nintendo assert claims of trademark counterfeiting and infringement, false designation of origin and advertising, violation of the Washington Consumer Protection Act and breach of contract. They seek orders enjoining defendants from selling on Amazon.com, selling product to any Amazon affiliate, attempting to open an Amazon selling account, infringing Nintendo’s IP, or helping any business entity from performing any such activities, the complaint said.

They request orders requiring the impounding and destruction of all counterfeit Nintendo products; that defendants provide a complete accounting of all accounts due; that defendants pay all general, special and actual damages resulting from their unlawful acts; plus the maximum amount of prejudgment interest and attorneys’ fees, the complaint said.