The High Court (King’s Bench Division) recently handed down its judgment in the trial of preliminary issues (“TPI”) in Digital Isle Limited v Marcos Enterprise Limited & Anor [2026] EWHC 642 (KB).

Samuel Okoronkwo Jr. represented the claimant on a direct access basis.

Facts

The claimant (“C”) and first defendant (“D1”) are online retailers of homeware goods. Both retail on their own platforms and on the popular online retail platform, Amazon. In particular, both sold a variety of tape fastening goods manufactured by the well-known brand Velcro.

On 3 June 2023, the second defendant (“D2”), D1’s director, logged on to D1’s seller account and made complaints to Amazon about C and C’s sale of a particular Velcro tape (“the Tape”). In summary, the complaint alleged that C was (a) selling “counterfeit” Velcro products; and (b) infringing Velcro’s trademark in the Tape by using Velcro branding next to C’s own branding.

C claimed that as a result of the complaints, Amazon removed its ability to sell the Tape on its Amazon account; and soon thereafter, that C’s Amazon account was temporarily suspended.

Consequently, C brought actions in defamation and malicious falsehood for its alleged losses.   

Issue

As with all TPIs, the court had to determine:

• the natural and ordinary meaning of the words used by D2 on the relevant date of publication;

• whether the meaning(s) determined are defamatory of C, at common law;

• whether the statement complained of was, or contained, a statement of fact and/or expression of opinion (and 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).

Held

Meaning

In determining meaning, Mrs. Justice Tipples had to take particular account of the context and mode of publication [see para 35]. Regarding the allegations of selling “counterfeit” goods, the determination of the first element of meaning came back, perhaps unsurprisingly, to the words themselves. A later email sent by Amazon, confirming that the listing had been removed, due to “inauthenticity” of the Tape, was inadmissible. Instead, the words used in the complaints were simply a clear allegation that C had been selling “counterfeit” products.

Regarding the second meaning, Ds advanced the argument that the words used only gave rise to “grounds to investigate” the claimant. This argument was rejected. Her Ladyship found instead that there were clear allegations of trademark infringement and that D2 had not described C’s alleged conduct in “cautious terms” at all [see para 34].

Fact or Opinion?

As with meaning, the determination of whether a statement is one of fact or opinion is an objective one. The ultimate determinant is how the words would strike the ordinary reasonable reader. The parties were at odds on this.

C submitted that both meanings were positive, unqualified assertions of wrongdoing, leaving no room for interpretation. Ds sought to make use of Mrs. Justice Collins-Rice’s recent recount of the relevant principles in Bruce & Anor v High Speed Two (HS2) Ltd [2026] EWHC 134 (KB). Namely, that an opinion is something which is or can reasonably be inferred to be a deduction or inference based on facts perceived.

Falling somewhere between the parties, Mrs. Justice Tipples considered that the hypothetical reasonable reader would have considered it to be a statement of fact that the claimant had been selling “counterfeit” goods. In contrast, the allegation of trademark “infringement” was a statement of opinion “based on their experience or knowledge of the claimant’s products” [see para 39].

Defamatory at common law?    

It was uncontroversial between the parties that an allegation of selling “counterfeit” goods is defamatory at common law. There was, however, a dispute as to whether the allegation of infringement was defamatory.

Mrs. Justice Tipples found in favour of C on this point. This naturally followed from the rejection of the argument that Ds had only generated “grounds to investigate” alleged infringement [see para 42]. Once more, the determination came back to the precise words complained of.

Comment

This judgment will no doubt be of interest to online retailers competing on major platforms, such as Amazon; eBay; and even the likes of Depop and Vinted.   

Of particular note is Mrs. Justice Tipples’ judgment that the information provided when returning a product because it is “not as described” would be understood by the reasonable reader as a factual complaint [see para 39]. This is particularly so where the product is identified. Practically speaking, such a determination would remove the statutory defence of “honest opinion” from any given defendant in defamation proceedings.     

In contrast, if an allegation of trademark infringement is made via a platform’s product complaint procedure, this would likely be found to be a statement of opinion.

However, some readers may find this distinction difficult to grasp. Indeed, both the statement of fact and opinion in this case are based upon the subjective experience of the recipient of the products being sold. If the allegation of the sale of counterfeit goods, is clearly one of fact, it ought to follow that an allegation of trademark infringement is also a statement of fact.

It may be that the legal technicality of an allegation of trademark infringement upon observing the placing of the logos next to one another is the point. So, once D1 saw the logos next to one another (as a matter of fact), the deduction could only be an opinion given the range of possible infringements available. But Her Ladyship was clear to narrow down the potential breaches solely to trademark infringement, so as not to attribute a potentially more injurious meaning to statements made [see para 33]. As such, it may be that future allegations of trademark infringement in similar cases may be deemed as statements of fact, such as claims of the sale of counterfeit goods.  

Nothing in this article is intended as legal advice or should be relied upon as such. If you have any questions about this case and would like advice from Samuel Jr. on defamation or malicious falsehood or on similar direct access disputes, please get in touch by booking a consultation with a barrister by filling in our enquiry form; emailing us at enquiries@mercantilebarristers.com; or telephone us on 0203 034 0077.

This article was drafted with the assistance of Joseph Norris.