Digital Isle Limited v Marcos Enterprise Limited & Anor

In this action the claimant alleges defamation and malicious falsehood in relation to written comments made by the defendants in June 2023 to Amazon UK Services Limited (“Amazon”) about the claimant’s products, which were offered for sale on Amazon’s website.

The claimant is an online retailer on the platform provided by Amazon and its trading name on Amazon’s online store was TRSalesUK. The items it sold on Amazon included products from the fastening manufacturer Velcro IP Holdings LLC (“Velcro”).

The first defendant is a company which supplies sustainable packaging products, craft supplies, home and garden goods. The second defendant is a director and shareholder of the First Defendant who is also known as “Andrew Marcou”.

There is no dispute that the parties were competitors in the sale of homeware products to retailers and the general public on online platforms, which included Amazon.

On 23 February 2024 the claim form was issued seeking damages, interest on damages, an injunction “restraining the defendants from purchasing the claimant’s products; and publishing the same or similar defamatory words”, further or other relief and costs.

The claimant’s case is that between 17 March 2023 and 24 December 2023 the first defendant purchased a number of Velcro products from the claimant’s Amazon shop. The product details, unit number, price and date of purchase are particularised at paragraph 10 of the Amended Particulars of Claim. The total cost of the items purchased was £2,538.61.

The claimant alleges that, upon the delivery of each purchase, the second defendant reported to Amazon that the goods were “inauthentic” by:

“(a)

logging on to his and/or the first defendant’s Amazon account and selecting the “Returns & Orders” tab; (b) selecting the items referred to in the table at paragraph 10 of the Amended Particulars of Claim; (c) upon presentation of a drop-down menu, titled “Why are you returning this?”, selecting “Description on website was not accurate”.

The claimant then issued the second defendant with a refund, as requested (paragraph 12 of the Amended Particulars of Claim).

The claimant alleges that the second defendant logged into his Amazon seller account and reported to Amazon the following, namely:

“… the claimant was selling “counterfeit” goods “illegally” as follows [Enc. p. 7A]:

(a)

On 17 May 2023, “Regarding the above ASIN (B00X1D973E), seller TR Sales is illegally selling this product through FBA and must be removed immediately”;

(b)

On 29 May 2023, “TR Sales has hacked this listing and removed the Velcro image. He has replaced it with s generic Non Velcro image. These images must be removed ASIN: B00X1D973E” [sic];

(c)

On 3 June 2023:

(i)

“Hello This has been reported on several occasions but nothign is being done to stop the infringement. TRsalesUK is selling counterfeit products in place of genuine Velcro products” [sic];

(ii)

“The seller is also ILLEGALLY using the Velcro brsnding next to his own branding to make it look like he is actually the manufacturer of the product” [sic];

(iii)

“Please see the attached illegal label with all the seeler's details attached, including the website, and the full address. It is strictly ILLEGAL to use a company logo that is not your without that companiy's permission” [sic]; and

(iv)

“This seller is consistently breaking Amazon rules, and is engaging in illegal activity. Somethign must be done to stop this criminal activity. Please remove TRsalesUK from Amazon permanently” [sic]”.

These allegations are set out at paragraph 13 of the Amended Particulars of Claim dated 19 December 2025. This paragraph was added to the Particulars of Claim by amendment after the claimant had obtained from Amazon the relevant document setting out the terms of the defendants’ complaint to Amazon. That was a result of an order for non-party disclosure made by Hill J and sealed by the court on 19 November 2025.

The claimant alleges that “soon thereafter”, it received email correspondence from Amazon dated 3 June 2023 informing it that its listing had been removed “because of a buyer complaint about the authenticity of one of your items”. This is set out in paragraph 14 of the Amended Particulars of Claim. Then, at paragraph 15, the claimant alleges that:

“between 29 May 2023 and 3 June 2023, the second defendant published or caused to be published that the claimant was selling Velcro products that were inauthentic; and Velcro Brand Black Sew-on Tape Hook and Loop 50mm 1 Metre Hook and 1 Metre Loop (“the Tape”) which was inauthentic and infringed Velcro’s trademark in the Tape (“the Complaints”)”

The claimant alleges that the “publication of the Complaints was primarily to Amazon, and possibly to an unquantifiable number of publishees” (paragraph 17 of the Amended Particulars of Claim). The claimant has not identified or pleaded who, apart from Amazon, are the other publishees.

The claimant alleges that in their natural and ordinary meaning, the words in the Complaints meant and were understood to mean that:

“the claimant was: (a) selling inauthentic and/or counterfeit Velcro tape by Amazon; and (b) infringing Velcro’s trademark rights in the sale of the Tape”.

On 2 May 2025 Master Armstrong directed that there be a trial of the following preliminary issues, namely:

“[4] (a) the natural and ordinary meaning of: (i) the second defendant’s complaint on or around 3 June 2023 to Amazon that the VELCRO goods sold by the claimant were “inauthentic”; and (ii) the second defendant’s complaint on or around 16 July 2023 to Amazon that the VELCRO goods sold by the Claimant “infringed (the Second Defendant’s) trademark” and were “counterfeit”.

(b)

whether the meaning(s) determined under (a) above are defamatory of the claimant at common law;

(c)

whether the statement complained of was, or contained, a statement of fact and/or expression of opinion;

(d)

insofar as the statement complained of was an expression of opinion, whether it indicated, whether in general or specific terms, the basis of the opinion.”

The terms of preliminary issues were re-stated in the exact terms in the order made by Hill J sealed on 19 November 2025: see paragraph 6. The claimant made no application to amend the preliminary issues following the disclosure of documents by Amazon as a result of the order made by Hill J.

The trial of the preliminary issues took place on 11 March 2026.

The defendants have, in large part, not been legally represented in this litigation. However, for the purpose of the trial of the preliminary issues, they have been represented by Ms Mariyam Kamil under the Pro Bono Trial Advocacy Scheme. The court is grateful for the pro bono assistance provided by Ms Kamil to the court on behalf of the defendants.

At the trial of the preliminary issues, it was common ground between the parties that:

Further, at trial of the preliminary issues, the claimant’s case on meaning in relation to the complaint remained as set out at paragraph 19 of the Amended Particulars of Claim (see paragraph 13 above). The claimant sought to advance a revised meaning in its skeleton argument dated 4 March 2026, but Mr Okoronkwo, on behalf of the claimant, did not seek to pursue this at trial. Mr Okoronkwo was correct to take this approach, as this revised meaning was more injurious to the defendants than the claimant’s pleaded meeting, and I would not have permitted him to advance it.

The defendants served notice of its case on meaning on 2 March 2026. The defendants take issue with the claimant’s meaning and maintain that the words complained of by the claimant, when read in their context, and in their natural and ordinary sense, mean and would have been understood to bear the following meanings (underlining denotes a statement of opinion):

“(a)

The claimant was selling inauthentic VELCRO tape;

(b)

There 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.”

This judgment concerns the trial of the preliminary issues and only relates to the question of meaning of the complaint. The court is not adjudicating on any other issues. Specifically, the court is not determining whether the allegations made in the complaint are true.

I read the complaint in advance of the hearing and did so knowing the identity of the parties, but I did not know anything else about the claim. I therefore knew that the claimant was complaining, but I did not know what it was complaining about. Further, I did so without any reference to the parties’ rival submissions on meaning. This was to capture my initial reaction as a reader and which is, of course, the accepted general practice in a trial of this nature.

The relevant legal principles were not in dispute between the parties. The court’s task is to determine the single natural and ordinary meaning of the words complained of, which is the meaning that the hypothetical ordinary reasonable reader would understand the words to bear. The law to be applied by the Court when determining the single meaning of a publication complained of is now “conveniently distilled” in Koutsogiannis v The Random House Group Ltd [2020] 4 WLR 25, Nicklin J (“Koutsogiannis”) at [11]-[12]: see Corbyn v Millett [2021] EMLR 19, CA (“Corbyn”) at [8] and, more recently, Bruce v High Speed Two (HS2) Ltd [2026] EWHC 134 (KB), Collins-Rice J at [12]. The law is settled and very well known, and does not need to be repeated. The context of the words and the medium of the publication is all important when assessing meaning: Stocker v Stocker [2020] AC 593, SC at [40]; Koutsogiannis at principle (ix). The court is free to choose the correct meaning: it is not bound by the meanings advanced by the parties (save that it cannot find a meaning that is more injurious than the claimant’s pleaded meaning): Koutsogiannis at principle (xiii).

Mr Okoronkwo for the claimant submits that, in order to determine the single natural and ordinary meaning of the complaint, it is necessary to take into account the context in which it appeared and the mode of publication. Here, what was being said to Amazon was by a seller of products on Amazon, using the seller’s platform. This is not a situation where what was being said was by an “ordinary customer” and, in addition to that, the hypothetical reader would be an employee at Amazon, as that is to whom the complaint was made and published. The claimant therefore submits that the context, together with the particular words used, was that the defendants were in a unique position on 3 June 2023 to notify Amazon that the claimant’s rights had been infringed and that counterfeit goods were being sold on Amazon’s website. Further, the allegations made by the defendant fall into Chase level 1, as allegations of actual wrongdoing, and not mere suspicion (see Chase v News Group Newspapers Ltd [2002] EWCA Civ 1772, [45], per Brooke LJ; Koutsogiannis at [13]).

Ms Kamil for the defendants submits that the defendants’ meaning should be preferred. Taking the first aspect of the claimant’s meaning (set out at paragraph 13(a) above), she submits that the claimant’s meaning is overly lawyerly and, in particular, the use of the formulation “and/or” is not how a hypothetical ordinary reasonable reader would have understood the words complained of. The hypothetical reasonable reader would have understood the words complained of to mean that the claimant was selling either “inauthentic” or “counterfeit” Velcro tape and, as between those two formulations, “inauthentic” is preferable, as that is how Amazon (the sole entity to whom the words were published) understood those words. There is also, the defendants submit, no basis to confine the meaning to the claimant’s sale of inauthentic Velcro tape “on Amazon”.

As to the second aspect of the claimant’s meaning (set out at paragraph 13(b) above), the defendants submit that there is no definitive assertion of trademark infringement in the words complained of. Rather, the claimant was placing Velcro’s branding next to its own branding to make it appear as though the claimant was the manufacturer of the product. The defendants say that this should be reflected in the meaning, and the claimant has failed to take account of this. In addition to that, context is relevant and whether there has been a trademark infringement is a matter of law for the courts to decide.

Finally, on meaning, Ms Kamil submits that it is appropriate for the meaning to be pitched at Chase level 3, i.e. “there are grounds for investigating whether the claimant was infringing Velcro’s trademark …”. The ordinary reasonable reader of the publication would have understood that this was a complaint which required further investigation, verification and determination. It was not stating, in terms, that the claimant had been guilty of any wrongdoing and, as such, there would be no proper basis for drawing any adverse inference against the claimant. This is because Amazon did not understand the words complained of to be expressing a firm view as to trademark infringement: see Amazon’s email dated 16 July 2023.

My initial reaction when I read the complaint for the first time, and which I noted down, was that Amazon were being told by “Andrew Enterprise” that the seller, known as TR Sales, were selling counterfeit goods on the Amazon website in place of genuine Velcro products. In addition to that, the seller was wrongly using Velcro branding next to its own branding to make it look like it was the manufacturer of the product. The seller had no right to do this and this was illegal.

In this case there is, it appears, only one publishee, namely Amazon, who will have known and understood that the statement complained of is made by a seller using the online platform for its seller’s account. However, more importantly, Amazon will also have known from the information on that platform that the seller is making the statement complained of in the context of the “communication_ subject” entitled “Product not as described”. The seller is therefore making a complaint about the product based on his or her own experience and doing so in their own words. The purpose of doing so is to tell Amazon what is wrong with the product and that is how the information will have been understood by the hypothetical ordinary reasonable reader. It does not appear that the seller had to leave his or her actual name in leaving a message on the seller’s account as the name left here is “Andrew Enterprise” although there is no dispute that this message was left by or on behalf of the defendants.

I have to keep in mind how such an online complaint to Amazon is made or read, and that the court must not engage in over-elaborate analysis. This on-line platform is available to a seller to provide a relatively easy means for a person to provide information to Amazon telling them why the product is not as described so that Amazon can then make an assessment as to what, if anything, should be done in the light of the information provided.

I agree with Ms Kamil for the defendants that there is no room for the formulation “and/or” in relation to the first aspect of the meaning, namely the nature of the Velcro goods being sold by the claimant. However, I do not accept that the appropriate description of those goods is “inauthentic” rather than “counterfeit”. The word “inauthentic” is not used anywhere in the words complained of. The word used is “counterfeit” and that is what the hypothetical ordinary reasonable reader would understand the complaint to mean. The fact that “inauthentic” is used by Amazon in a subsequent email is neither here nor there, as that is inadmissible in determining the natural and ordinary meaning of the words complained of. Likewise, I do not accept Ms Kamil’s argument that the meaning cannot be confined to the claimant’s sale of counterfeit goods on Amazon. The test is reasonableness and, in my view, it is obvious that the hypothetical reasonable reader would understand that the complaint is specifically directed at the claimant’s sale of the counterfeit goods on the Amazon website, and not more widely in relation to any other online platform.

I now turn to the second aspect of the rival meanings.

I note that it is common ground that both parties accept that the alleged infringement relates to Velcro’s trademark. The dispute between the parties is whether the claimant is guilty of infringing Velcro’s trademark (the claimant’s case) or there are grounds for investigating whether the claimant was infringing Velcro’s trademark (the defendants’ case). However, the court is not bound to accept the meaning advanced by the parties. It seems to me that, in advancing these meanings, both parties have been influenced by what Amazon said in a subsequent email having received the complaint. That email is inadmissible in determining the meaning of the complaint. Further, “infringement” could be referring to the infringement of one of a number of different intellectual property rights. My initial impression when I first read the complaint was that it was not clear to me what rights were said to have been infringed. Having said that, leaving the nature of the rights infringed by the claimant at large in the meaning is, in my view, potentially more injurious to the claimant than the nature of the infringement identified in both parties’ meanings. For that reason, I have proceeded on the basis that in the complaint “infringement” means the infringement of Velcro’s trademark rights.

The defendants have not described the claimant’s conduct in cautious terms. Rather, they have made allegations of “the infringement”, “the seller is also ILLEGALLY using the Velcro brsanding [sic] next to his own branding to make it look like he is actually the manufacturer of the product”, and “it is strictly ILLEGAL to use a company logo that is not you [sic] without that company's [sic] PERMISSION” as a consequence of the claimant selling counterfeit Velcro products on the Amazon website. I do not therefore accept Ms Kamil’s submission that the complaint means that there are grounds for investigating whether the claimant infringed Velcro’s trademark. In my view, the hypothetical reasonable reader would understand that, by selling counterfeit Velcro products on Amazon’s website in place of genuine Velcro products the seller has infringed Velcro’s trademark rights. The reasonable reader would also understand that the seller has used Velcro’s branding next to its own branding to make it look like it is the manufacturer of the product.

The principles for the determination of fact or opinion are also well established: see Nicklin J’s summary in Koutsogiannis at [16] and, more recently, Triplark Limited v Northwood Hall (Freehold) Limited, per Warby J (“Triplark”) at [15] to [18]. In Triplark Warby J explained:

“[15.] … The first requirement is that the words should be recognisable as opinion. Opinion has been defined as “something which is or can reasonably be inferred to be a deduction, inference, conclusion, criticism, remark, observation etc”. It is common ground that the test is an objective one and that, as with meaning, the ultimate determinant is how the words would strike the ordinary reasonable reader: see Butt [39] (Sharp LJ).

[17.] … Although an inference may amount to a statement of opinion, the bare statement of an inference, without reference to the facts on which it is based, may well appear as a statement of fact: see Kemsley v Foot [1952] AC 345. As Sharp LJ DBE, pointed out in Butt at [37], not every inference counts as an opinion; context is all. Put simply, the more clearly a statement indicates that it is based on some extraneous material, the more likely it is to strike the reader as an expression of opinion.”

The claimant submits that the words complained of were a statement of fact. This is because the words used by the second defendant were concrete expressions of wrongdoing that had been, and were continuing to be, committed. The complaint, for example, said “TR Sales is illegally selling […]” and “TRsalesUK is selling counterfeit products […]” and these are statements which are positive, unqualified assertions of wrongdoing from which the ordinary reasonable reader could only understand that the claimant had been selling, and continued to sell, counterfeit items; and that the claimant was infringing Velcro’s trademark. The claimant further submits that the context in which the defendants made the complaint is also relevant as they did so via their seller account, and they did so via a complaint procedure in order to get Amazon to take “some disciplinary action”. The claimant maintains that, in order to achieve that, the defendants necessarily had to factually allege wrongdoing.

The defendants submit that the meaning of the words complained of comprised statements of opinion suggesting that the claimant was selling “inauthentic VELCRO tape” and “infringing VELCRO’s trademark” so as “to convey the impression that the Claimant was the manufacturer of the tape”. This is because these were “deductions”, “inferences” or “conclusions” that the defendants drew from the facts identified in their reports to Amazon. They were not, of themselves, facts. In addition to that, the words complained of were part of a report to Amazon for investigation and/or determination by Amazon. It was ultimately for Amazon to investigate and determine whether they were accurate and, if so, decide what action (if any) should be taken.

I do not accept, as the defendants contend, that it was for Amazon “to investigate and determine” whether what had been said by the complainant was accurate or that the hypothetical reasonable reader would understand this to be a complaint which required further investigation. This is because, there is nothing in the admissible evidence to show that Amazon was or would be responsible for any form of investigation in relation to complaints made about “Product not as described”.

The information provided by a person on the Amazon on-line platform when setting out the reasons for “Product not as described” is one that a hypothetical reasonable reader will understand is factual and is based on their own experience of the product. The identification of products in the complaint as “counterfeit Velcro products” is a statement of fact. That is why the product is “not as described”, and that is what the hypothetical reasonable reader will understand. However, when the reader sees that there has been “infringement”, that the claimant is described as “ILLEGALLY using the Velcro brsnding” [sic], there has been “a contravention of Amazon terms and conditions” and that the claimant has been “engaging in illegal activity” the reasonable reader will understand that is the opinion of the person making the complaint (in this case the seller), which is based on their experience or knowledge of the claimant’s products. The hypothetical ordinary reasonable reader will also understand that the basis for the defendants’ opinion is set out in the complaint made to Amazon.

There was no dispute that, as to whether a statement is defamatory at common law of a corporate claimant, the essential question is whether the tendency of the words complained of is to cause a substantial adverse effect on people’s attitudes towards the company, in this case the claimant (see Triplark, per Warby J at [13]).

The claimant submits that the whole point of Amazon is to sell authentic products and the consequence of the complaint was that the claimant’s account was suspended by Amazon, and that statement was injurious to its reputation in business or trade. That, says the claimant, is obvious if it cannot trade its products on Amazon and, as a consequence, the statement is defamatory of the claimant at common law. As set out above, the claimant maintains that the allegations fall into Chase level 1, as allegations of actual wrongdoing, and not mere suspicion.

The defendants accept that the first aspect of their meaning was defamatory of the claimant at common law. However, the defendants submit that the second aspect of their meaning was not defamatory of the claimant, as the ordinary reasonable reader of the publication would have understood that this was a complaint which required further investigation, verification and determination. It was not stating, in terms, that the claimant had been guilty of any wrongdoing and, as such, there would be no proper basis for drawing any adverse inference against the claimant. I do not agree with this submission. The complaint does state, in terms, that the claimant is guilty of wrongdoing because of the infringement of Velcro’s rights and illegally using the Velcro branding next to its own branding to make it look like it is actually the manufacturer of the product. Further, I have for the reasons set out above, rejected the defendants’ submission on the second aspect the rival meanings. In circumstances the complaint is defamatory of the claimant.

I identified my initial view of the words complained of and have received oral and brief written submissions from the parties. The court has to be careful not to be too analytical in its approach. I have to determine the impression that would have been conveyed to the hypothetical reasonable reader reading the complaint made by the defendant to Amazon on 3 June 2023 once.

Applying the principles I have identified, my conclusions are that the natural and ordinary meaning of the words complained of, read in their proper context as they affect the claimant is:

This meaning is defamatory of the claimant at common law. The words complained of are a statement of fact, save for the passage which is underlined which is an expression of opinion. As for the underlined passage, the words complained of indicated, whether in general or specific terms, the basis of the opinion.

The two communications, which comprise “the complaint”, were written in these terms:

“Hello This has been reported on several occasions but nothign [sic] is being done to stop the infringement. TRsalesUK is selling counterfeit products in place of genuine Velcro products. He is also, in this case, selling individual lengts [sic] of the product when you can clearly see on the listing that it states "*SPECIFICALLY SOLD CONTINUOUS* - If you order multiple pieces it will be sent as ONE length" The seller is also ILLEGALLY using the Velcro brsnding [sic] next to his own branding to make it look like he is actually the manufacturer of the product. Also, he is including his website details on the barcode label, which is a contravention of Amazon terms and conditions ASIN(s) of the product(s) and Marketplace. Please include all impacted ASINs for the same listing issue, separated by commas.: B00X1D973E Seller name(s): TRsalesUK URL of the offer listing page: https://www.amazon.co.uk/dp/B00X1D973E?psc=1&ref=ppx_yo2ov_dt_b_product_details Did you complete a test buy? If so, please provide the order ID: 203-0940841-7777144 Seller has provided a call-back number +447956842118 in the country United Kingdom. If Selling Partner Support needs additional information to resolve the case, the above number can be used to call the seller during business hours in the country's time zone.”

“Please see the attached illegal label with all the seeler's [sic] details attached, including the website, and the full address. It is strictly ILLEGAL to use a company logo that is not your without that companiy's [sic] permission. It is also against Amazon policies to make your company details available to Amazon buyers. TRsalesUK is also known as On 1 Shelf, as you can see on the label, and his webiste [sic] is shown in the top righthand side of the labell [sic] twice. This seller is consistently breaking Amazon rules, and is engaging in illegal activity. Somethign [sic] must be done to stop this criminal activity. Please remove TRsalesUK from Amazon permanently”

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