Digital Isle Limited v Marcos Enterprise Limited and another [2026] EWHC 642 (KB)

March 20, 2026

High Court determines meaning of Amazon complaint alleging counterfeit Velcro products and trade mark infringement

Introduction

In Digital Isle Limited v Marcos Enterprise Limited and another [2026] EWHC 642 (KB), Mrs Justice Tipples determined preliminary issues in a claim for defamation and malicious falsehood arising from written complaints made to Amazon about products sold by the claimant on the Amazon marketplace. The claimant alleged that the defendants had accused it of selling counterfeit Velcro products and of using Velcro branding unlawfully.

The claim arose after a commercial competitor bought Velcro products from the claimant’s Amazon store and then complained to Amazon that the goods were counterfeit and that Velcro branding was being used unlawfully, leading to removal of a listing and, ultimately, a defamation and malicious falsehood claim.

The court was required to determine the natural and ordinary meaning of the words complained of, whether that meaning was defamatory at common law, and whether the statements were fact or opinion. The court held that the complaint bore a defamatory meaning and that, although part of it was factual, part of it amounted to opinion.

Background

The claimant, Digital Isle Limited, traded as an online retailer on Amazon under the name TRSalesUK. Among the products it sold were Velcro branded items, including Velcro Brand Black Sew-on Tape Hook and Loop 50mm 1 Metre Hook and 1 Metre Loop. The first defendant, Marcos Enterprise Limited, was also an online seller of homeware and related goods, and the second defendant, also known as Andrew Marcou, was its director and shareholder. The parties were therefore commercial competitors operating on the same online marketplace.

The claim arose from complaints made to Amazon in 2023 about the authenticity of products sold by the claimant. According to the claimant’s pleaded case, between March and December 2023 the first defendant purchased a number of Velcro products from the claimant’s Amazon shop. The claimant alleged that, after delivery of those products, the second defendant made reports to Amazon asserting that the products were not genuine and that the claimant was using Velcro branding unlawfully.

The complaint relied upon at the preliminary issue trial was made on 3 June 2023. In that complaint, the second defendant told Amazon that TRsalesUK was “selling counterfeit products in place of genuine Velcro products”, was “ILLEGALLY using the Velcro brsnding next to his own branding”, was engaging in “illegal activity”, and should be removed from Amazon permanently. The complaint also referred to an attached label said to contain the seller’s details, website and address.

The claimant alleged that, soon afterwards, it received an email from Amazon dated 3 June 2023 stating that one of its listings had been removed because of a buyer complaint about the authenticity of one of its items. It further alleged that publication of the complaint was primarily to Amazon, though it also pleaded the possibility of publication to an unquantifiable number of other publishees.

The procedural history is also of some interest. The terms of the complaint were not originally available to the claimant in full. They came to light only after the claimant obtained non-party disclosure from Amazon pursuant to an order made by Hill J and sealed on 19 November 2025. Following that disclosure, the claimant amended its Particulars of Claim to plead the complaint in its disclosed form.

The claim form had been issued on 23 February 2024. The claimant sought damages, interest, an injunction, further or other relief, and costs. By the time of the hearing before Tipples J, the court was concerned only with preliminary issues relating to the natural and ordinary meaning of the words complained of, whether they were defamatory at common law, and whether they were statements of fact or opinion. The judge made clear that the court was not deciding at that stage whether the underlying allegations were true.

Legal Framework

The court applied the orthodox principles governing determination of meaning in defamation claims. Its task was to determine the single natural and ordinary meaning that the hypothetical ordinary reasonable reader would understand the words to bear. Context and the medium of publication were central. The judge referred to Koutsogiannis v The Random House Group Ltd [2020] 4 WLR 25, Corbyn v Millett [2021] EMLR 19, Bruce v High Speed Two (HS2) Ltd [2026] EWHC 134 (KB), and Stocker v Stocker [2020] AC 593. The court also noted that it was not bound by the rival meanings advanced by the parties, save that it could not find a meaning more injurious than the claimant’s pleaded meaning.

In relation to the level of allegation, the parties referred to Chase v News Group Newspapers Ltd [2002] EWCA Civ 1772. On the question whether the words were fact or opinion, the judge applied the principles summarised in Koutsogiannis and Triplark Ltd v Northwood Hall (Freehold) Ltd, including the distinction between factual assertions and deductions or conclusions drawn from identified material.

As to defamatory tendency, there was no dispute that, for a corporate claimant, the question was whether the words complained of had a tendency to cause a substantial adverse effect on people’s attitudes towards the company.

The Court’s Reasoning

A central issue at the meaning hearing was the difference between the rival formulations advanced by the parties. The claimant’s pleaded case was that the complaint meant that it was “selling inauthentic and/or counterfeit Velcro tape by Amazon” and “infringing Velcro’s trademark rights in the sale of the Tape”. The defendants contended for a less serious meaning, namely that the claimant was “selling inauthentic VELCRO tape” and that “[t]here are grounds for investigating whether the claimant was infringing VELCRO’s trademark by placing VELCRO’s branding next to the Claimant’s own branding to convey the impression that the claimant was the manufacturer of the tape.”

The judge read the complaint in advance without reference to the parties’ rival submissions, in order to capture her initial reaction as an ordinary reader. Her first impression was that Amazon was being told that the claimant, known as TR Sales, was selling counterfeit goods on the Amazon website in place of genuine Velcro products, and was wrongly using Velcro branding next to its own branding so as to make it appear that it was the manufacturer.

The context was important. The complaint appeared on Amazon’s seller platform under the subject “Product not as described”. The judge considered that the ordinary reasonable reader would understand the seller to be telling Amazon, in that context, what was wrong with the product based on the seller’s own experience. The court also emphasised that it should not engage in over elaborate analysis of an online complaint of that kind.

The judge rejected the claimant’s wording insofar as it used the formulation “and/or” in relation to the nature of the goods. That was not how an ordinary reasonable reader would understand the complaint. However, she also rejected the defendants’ submission that the appropriate description was merely “inauthentic”. The word actually used in the complaint was “counterfeit”, and that was the word the ordinary reasonable reader would understand. She further held that the meaning was confined to the claimant’s sale of counterfeit goods on Amazon, rather than extending more generally to sales on other platforms.

As to the second limb, the judge rejected the defendants’ attempt to reduce the sting of the complaint to grounds for investigation only. The language used was not cautious. It referred to “infringement”, to the claimant “ILLEGALLY using the Velcro brsnding”, to illegality, and to criminal activity. In that context, the ordinary reasonable reader would understand the complaint as asserting wrongdoing, not merely inviting inquiry into whether wrongdoing had occurred. The judge held that the reader would understand the complaint to mean that, by selling counterfeit Velcro products on Amazon in place of genuine products, the claimant had infringed Velcro’s trade mark rights and had also used Velcro branding next to its own branding to make it look like it was the manufacturer of the products.

On the issue of fact or opinion, the judge rejected the defendants’ submission that Amazon would understand the complaint as something requiring investigation and determination by Amazon. There was nothing in the admissible evidence to show that Amazon was responsible for any investigative function in relation to complaints of “Product not as described”.

The court held that the identification of the goods as “counterfeit Velcro products” was a statement of fact. However, when the complaint referred to “infringement”, “ILLEGALLY using the Velcro brsnding”, contravention of Amazon terms and conditions, and “illegal activity”, the ordinary reasonable reader would understand those passages as the opinion of the person making the complaint, based on that person’s experience or knowledge of the claimant’s products. The judge also held that the basis of that opinion was sufficiently indicated in the complaint itself.

Decision and Outcome

The judge’s final determination of meaning was more precise than either party’s formulation. She held that the natural and ordinary meaning of the words complained of was:

(a) The claimant, known as TR Sales, was selling counterfeit Velcro products on the Amazon website in place of genuine products.
(b) The claimant infringed Velcro’s trademark and also used Velcro’s branding next to its own branding to make it look like it was the manufacturer of the products.

The court further held that this meaning was defamatory of the claimant at common law. The words complained of were a statement of fact, save for the passage identified by the judge as an expression of opinion. In relation to that opinion, the complaint indicated, whether in general or specific terms, the basis of the opinion.

The judgment did not determine the truth of the allegations, final liability, damages, final relief, or costs. It was confined to the preliminary issues.

Conclusion

The judgment is a reminder that rival formulations advanced by the parties may both be rejected in part. Here, the court declined to adopt the claimant’s “inauthentic and/or counterfeit” formulation and equally refused to dilute the second limb of the complaint into mere grounds for investigation. The result was a more exact meaning, reflecting the direct allegation that the claimant was selling counterfeit goods and infringing trade mark rights on Amazon.

Further Reading

Defamation Solicitors (Libel and Slander)
Determination of Meaning
Malicious Falsehood in English Law: Principles and Recent Developments (May 2025)
Intellectual Property Disputes

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