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My apologies about the tags, I was not sure exactly what tags to use.

I was just reading Amazon developer documentation. At the top there is a paragraph quoted in full here:

Amazon's trademarks and trade dress may not be used in connection with any product or service that is not Amazon's, in any manner that is likely to cause confusion among customers, or in any manner that disparages or discredits Amazon. All other trademarks not owned by Amazon are the property of their respective owners, who may or may not be affiliated with, connected to, or sponsored by Amazon.

The overall intent seems okay. But the discredit bit seems odd to me. I already cannot falsely assert something to their discredit without it coming under tort law, as I understand it. On the other hand, if I say something true and demonstrated to their discredit - I don't see that the above clause should restrict me any further than I might already be. Indeed, its intention feels morally wrong (not that that is any part of my question).

My question is - does the existence of that part make any difference to their legal recourse to actions of my own.

Btw: I actually like Amazon at this time and have no intention to attempt to disparage them. My question is purely about the legal status of this clause.

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    It mostly makes it harder to say "I didn't realise I wasn't allowed to use their trademark to disparage or discredit them" in court.
    – gnasher729
    Commented Nov 2, 2022 at 0:18
  • @gnasher729 Really? Wow. Not doubting you - but okay. So, would that actually be a defense likely to work if they did not have that clause in?
    – Bruce
    Commented Nov 2, 2022 at 1:34

2 Answers 2

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Does this non disparagement clause have any legal standing?

Enforcement of that clause has its limitations. The keywords in the clause are disparage and discredit, each of which warrants a separate analysis.

Black's Law Dictionary defines disparagement [of goods] as:

A statement about a competitor's goods which is untrue or misleading and is made to influence or tends to influence the public not to buy.

That excerpt from the legal definition is the relevant one insofar as the clause is in terms of suppliers' trademarks and the "product[s] or service[s]" they offer.

From this legal definition, it follows that the non-disparagement portion of the clause is enforceable only if (1) the source of the statement is an Amazon's competitor, (2) the statement is about goods or services offered by Amazon, and (3) those statements are untrue or misleading and --potentially or actually-- detrimental to Amazon's interests as competitor. Whether or not the publisher qualifies as Amazon's competitor will depend on the factual details. Other than that, competitors' statements about Amazon but unrelated to Amazon's products or services are beyond the scope of item (2).

As for discrediting, the clause is tantamount to stipulating to a gag order regardless of how nefarious Amazon's conduct could be. That overly broad portion of the clause can be stricken as null and void to the extent that it is contrary to public policy. See Restatement (Second) of Contracts at §178. The public's awareness of a party's misconduct is very likely to supersede parties' interest in the enforcement of that clause.

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Disparaging is not the same as defaming

For example, it is disparaging to say that Hugo Boss designed uniforms for the Nazis or that Mercedes benefitted from Nazi slave labour. However, neither of those things is defamatory because they are both true.

While the common law protects against defamation: the publication of untrue statements that damage reputations, it doesn't protect against disparagement if the damaging statements are true.

This clause creates a contractual prohibition on you from saying nasty things about Amazon in conjunction with their trademark even if the nasty things are 100% true.

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    In many common law jurisdictions, including the United States, there is a tort of "False Light" which is similar to defamation in that it is damaging to the character of a person, but is in fact true. Typically to prove false light, the victim must show that the information was presented in a way that the casts the person in a negative light OR the status is revealed is done with the intent of ruining someone's reputation (For example, outing someone as gay to their family who are well known to not support gay rights.).
    – hszmv
    Commented Nov 2, 2022 at 13:52

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