A good lesson in considering the method by which you garner online reviews and some valuable guidance for companies in conducting their online activities.

This decision from a federal court in Utah in a Lanham Act suit between two vitamin companies provides a decent roadmap for how not to garner increased positive online reviews and lessen the effect of negative ones – DO NOT HAVE YOUR EMPLOYEES VOTE ON HOW HELPFUL THEY ARE TO MAKE THEIR STANDING GREATER ON AMAZON AND BE CAREFUL IF YOU ARE OFFERING FREE PRODUCTS IN EXCHANGE FOR ONLINE REVIEWS.

Some important background:

Two vitamin companies that sell dietary supplements online (including on Amazon) – Vitamins Online (Nutrigold) and Heartwise (NatureWise) – compete in the “garcinia cambogia” and “green coffee extract” spaces.  There apparently wasn’t much demand for these two products until Dr. Oz showcased these dietary supplements for weight loss on his tv show.  You can guess what happened – your instincts that people would love to take a pill rather than change their lifestyles are correct.  So these two supplements blew up overnight.  According to the court opinion in this case (you can read it here) NatureWise “began a practice of having its employees vote on the helpfulness of some of the reviews on its product pages” on Amazon.  Given Amazon’s own internal processes:

By having its employees vote that positive reviews were helpful and negative reviews were unhelpful, NatureWise increased the likelihood that potential customers would see positive reviews of its products first and negative reviews last. NatureWise also encouraged customers to post or repost their positive reviews on Amazon by offering them free products or gifts cards. NatureWise would review and, in some cases, make minor edits to the reviews before asking the customers to post them on Amazon. The number of positive reviews a product receives on Amazon affects that product’s position in results for product searches.

And that was all it took to sustain a cause of action from a competitor.  Vitamins Online sued Heartwise over these practices saying they were anticompetitive, unfair and also amounted to false advertising.  (You can find the Complaint here.)  With specific reference to the Amazon review inflation/deflation matters, NatureWise asked the court to rule that manipulating Amazon reviews did not amount to false or misleading statements used in commerce and that the statements weren’t viewed by enough people to amount to commercial advertising or promotion (both necessary parts of the Lanham Act claims).

The court found that a business does not need to make a statement but only needs to use a statement of another in an improper fashion to create liability.  Thus, inflating or deflating the popularity and thus the positioning of a review on Amazon can amount to a potential false advertising practice and subject a business to liability whether done by employees or through block-voting of customers that you encouraged:

By having its employees use the device provided by Amazon to block vote on the helpfulness of Amazon reviews, NatureWise may be misleading potential customers into believing that a certain number of customers found a review to be helpful when, in reality, NatureWise employees made up a block of those votes. Therefore, the court concludes that Vitamins Online has presented sufficient evidence to create a genuine issue of material fact as to whether NatureWise’s use of the device for voting on the helpfulness of customer reviews on Amazon misrepresented the nature, characteristics, or qualities of NatureWise’s goods or its commercial activities.

Interestingly, the act of giving away free products to garner reviews was not found misleading or false by the court absent any further evidence that the reviews were false and it did grant judgment to the defendant on claims that this practice amounted to a Lanham Act violation finding that:

Because Vitamins Online has failed to show that any of the reviews, even those reviews incentivized by free product, were counter to the actual experience of the customers, Vitamins Online has not met its burden of showing that NatureWise’s practice of offering free products in exchange for the posting of reviews on Amazon in actionable under Section 43(a) of the Lanham Act.

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