Consumers increasingly rely on e-commerce platforms as a convenient means to purchase goods and services ranging from fashion, electronics, home goods, furniture and appliances, and food and personal care. This trend is highlighted by the significant increase in U.S. consumer spending through these channels. According to U.S. Department of Commerce, consumers spent approximately $602 billion in the U.S. on retail e-commerce platforms in 2019, representing 16% of consumer spending on retail, up from 6% in 2010. Amazon alone accounted for approximately $222 billion, or approximately one-third of e-commerce spending.

While the consumer benefits of digital innovation are plain, an unintended consequence of these e-commerce platforms is the ability for bad actors to ignore the intellectual property rights (IPR) or contract rights of others. For example, certain third-party sellers regularly take advantage of online selling platforms by selling counterfeit goods that appear “authentic” to consumers who are unable to physically inspect the products they are purchasing. In another example, exclusive resellers or distributors often face competition from third-party sellers who do not have rights to sell those products.

Stout’s disputes and intellectual property (IP) team is comprised of professionals with substantial experience in assessing damages involving e-commerce distribution and sales. Our testifying experts have cross-disciplined experience in both litigation and non-litigation engagements, having provided analysis, opinions, and expert testimony involving a wide variety of IP assets including:

• Use of web analytics, including Google Analytics and results from search engine optimization (SEO) tools to inform various analyses
• Use of social media analytics to inform various analyses, including exposure to relevant brand messaging
• Use of Amazon Seller analytics tools to inform various analyses, including constructing but-for analyses based on a review of the Amazon marketplace prior to the introduction of the infringing product
• Apportioning the value (or the contributions) of the IP or false advertising from other factors influencing consumer purchase decisions
• Quantification of actual damages, including lost profits, lost royalties, and corrective advertising involving claims of patent infringement, breach of contract, trademark/trade dress infringement and false advertising occurring on e-commerce platforms
• Determination of defendant’s profits involving claims of trademark/trade dress infringement and false advertising occurring on e-commerce platforms
• Assessing market penetration across e-commerce and other distribution channel