ecobee, Inc. v. Ayarzl et AL. (d. Mass. 20-cv-11620).

Ecobee sued Ayarzyl, Certified Tech USA, Maj Deals, and Bitsnbites 1, accusing each of selling ecobee products on-line without authorization. Ecobee brings counts of trademark infringement, false advertising and unfair competition. As has been the case with its many similar prior complaints, ecobee does not assert that counterfeit goods bearing the registered ECOBEE mark are being sold; instead, it asserts that they sell used or liquidated ecobee products through their respective Amazon Seller Accounts that they improperly identify as “new.” As these entities are not authorized, they lack the training and quality controls to which ecobee’s authorized resellers are subject. Customers may, for example, order products meant for professional installation, or products configured and intended for use outside of the United States. Ecobee cites a number of customers who left negative feedback after purchasing ecobee products from these sites, evidencing customers’ belief that the products were new when they turned out not to be. As a result of these issues, ecobee contends that the products being sold by the Defendants are “materially different” than authorized ecobee products, and thus fall outside of the “first sale” doctrine that would normally permit the resale of a product bearing the original seller’s trademark. Ecobee has brought a number of complaints against unauthorized Amazon resellers who are selling actual ecobee products, albeit used, damages, liquidated, or other products that ecobee would not itself have offered for sale. Since October 2018, ecobee has filed twelve such complaints in this district (including this one). Each of these involved obtaining leave of court to serve the defendants by alternative means, namely via the resellers’ Amazon e-mail service that the resellers used to communicate with their customers. Of the eleven prior suits, one was transferred to the Eastern District of New York, where it remains pending and one settled. In the remainder, ecobee successfully obtained default judgment and a permanent injunction. While these suits were effectively unopposed, the court still must determine that the well-pled facts of the complaint stated a proper claim on which the relief could be granted.