Amazon has been hit with yet another strongly-worded lawsuit centering on fakes. After being cut off by Birkenstock (twice!) and slapped with a trademark lawsuit by Mercedes Benz’s parent company Daimler AG for its failure to commit to “proactively polic[ing] its site for counterfeits and unauthorized retailers,” the American e-commerce giant is being sued by Seven For All Mankind International (“Seven”), which is calling attention to Amazon’s “egregious, willful and wanton activities” in connection with Seven’s Ella Moss label.
According to Seven’s lawsuit, which was filed this week in federal court in New York, Amazon is on the hook for trademark infringement in connection with its similarly-named private label, Ella Moon. While Seven sells its contemporary Ella Moss brand on Amazon, the Seattle-based giant has taken to using an “infringing Ella Moon trademark.”
In addition to sharing similiar names, Seven alleges that Amazon’s mark, for which it filed a still-pending application for registration with the U.S. Patent and Trademark Office in January 2017 for use of garments and accessories, is similar to Ella Moss “in sound, appearance, connotation and commercial impression.”
Seven also notes that in addition to offering up clothing with a markedly similar aesthetic, including “the same types of women’s apparel, and in the same ‘bohemian-chic’ casual style, as the Ella Moss brand,” the Ella Moon collection is being sold at similar price points as Ella Moss, a move to further confuse consumers as to the source of the Ella Moon brand.
Seven further claims that Amazon prioritizes Ella Moon products over Ella Moss ones in its website’s search results, and is seeking injunctive relief (which would immediately and permanently bar Amazon from selling any Ella Moon products) and monetary damages.
To make a successful case for trademark infringement, Seven will have to show that Amazon’s similarly-named brand is causing confusion amongst consumers, i.e., that shoppers are being led to believe that the Ella Moon brand is in some way affiliated with Ella Moss or that the Ella Moss brand endorsed (or even collaborated with Amazon to create) the Ella Moon label.
Ella Moss, which was founded by designer Pamella Protzel in 2001, pre-dates Amazon’s Ella Moon brand by nearly 20 years. Amazon only began using the Ella Moon mark last summer, noting on its trademark application in early 2017 that it had not yet begun using the mark on garments and accessories. It is part of a large push by Amazon to build out its own in-house apparel collections in order to woo consumers, whose loyalty to established brands, whether it be Gap or Lululemon, has diminished significantly in recent years.
Ella Moon joins the likes of Find. – Amazon’s fast fashion label – and over 40 other Amazon private labels, 29 of which are apparel/fashion related. And according to L2 Digital, these lines are gaining traction amongst consumers, particularly in light of the current retail environment, when brand loyalty is low, consumers are overly price/value conscious, and branding is simply not as significant a player as it used to be. It is within this landscape that private labels are positioned to thrive.
Amazon’s emphasis on house-branded offerings puts it in an interesting predicament, at a time when the e-commerce marketplace is simultaneously working to woo the fashion industry in an attempt to expand its offerings of third-party partners.
UPDATED (October 17, 2018): The parties have seemingly come to an agreement out of court, as counsel for Seven filed a stipulation for voluntary dismissal with prejudice, bringing the case to something of a swift end. According to Seven’s filing, “It is hereby stipulated and agreed by and between the parties and/or their respective counsel(s) that the above-captioned action is voluntarily dismissed, with prejudice against the defendant(s) Amazon.Com, Inc., Jane Does 1-10, John Does 1-10, Prince Holly Yan, LLC, XYZ Companies 1-10 and without costs.”
* The case is Seven For All Mankind International SAGL v. Prince Holy Yan, LLC et al, 1:2018-cv-03392 (SDNY).