Open Source Search Firm Accuses Amazon of Trademark Infringement
O'Melveny & Myers is representing search engine Elasticsearch in a complaint that alleges Amazon is willfully infringing its mark by promoting competing search and analytics products.
September 30, 2019 at 07:38 PM
2 minute read
Amazon Elasticsearch Service landing page, as alleged by Elasticsearch Inc.Open source search and analytics company Elasticsearch Inc. is suing Amazon.com for trademark infringement and false advertising.
O'Melveny & Myers partner David Eberhart and counsel James Rothstein filed a complaint Sept. 27 in the U.S. District Court for the Northern District of California on behalf of Elasticsearch and its Dutch parent Elasticsearch B.V.
The complaint alleges that Amazon is willfully infringing its mark by promoting competing search and analytics products called Amazon Elasticsearch Service (AESS) and Open Distro for Elasticsearch. Amazon touts AESS as helping users "deploy, secure and operate Elasticsearch at scale with zero down time."
"Due to Amazon's misleading use of the Elasticsearch mark, consumers of search and analytics software are, at least, likely to be confused as to whether Elastic sponsors or approves AESS and Open Distro," the O'Melveny attorneys write.
They further allege that AESS disables certain functionality from Elasticsearch's product, while also including some software code that's not offered by Elasticsearch. "Amazon's use of the Elasticsearch mark therefore constitutes false advertising," they write.
Amazon promotes Open Distro as "a value-added distribution of Elasticsearch that is 100% open source (Apache 2.0 license) and supported by AWS." But Amazon "fails to clearly communicate to consumers that Amazon is the source of Open Distro," the complaint alleges.
Elasticsearch founder Shay Banon launched the original product, which allows users to combine various different searches, in 2010. Adobe, Cisco Systems, eBay, Facebook, Optum and Walmart are among the companies that use the product, according to the complaint.
Guidelines for the open-source product specify that "the Elasticsearch mark my not be part of any product name," according to the complaint, and that use of the mark must not create a sense of affiliation or endorsement by the company, the complaint alleges.
"Amazon cannot plausibly contend that Elastic's guidelines are misguided or impractical," the O'Melveny attorneys write, because Amazon Web Services "imposes materially similar restrictions on the use of Amazon's marks."
Amazon Web Services did not immediately reply to an email seeking comment on the suit.
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