Can I manipulate the online reviews of my products to make them more positive?
Posted on Apr. 15, 2016

It depends on exactly what the “manipulation” consists of, but tread carefully. The United States District Court for the District of Utah recently suggested that a company cannot artificially boost the positivity level of its products’ online reviews by having its employees mark the positive reviews as helpful, and the negative reviews as unhelpful, or by giving customers gifts in return for posting positive reviews, if such activities actually achieve their objective, that is, if they actually create the impression that unbiased consumers find positive reviews to be helpful and negative reviews to be unhelpful, and that a high number of unbiased consumers posted positive reviews without any anticipation of reward. See Vitamins Online, Inc. v. Heartwise, Inc., 2016 WL 538458 (D. Utah Feb. 9, 2016).

The facts in Vitamins Online were as follows: the defendant Nutriwise sold a dietary supplement on Amazon. The Amazon system is set up so that the product reviews most frequently marked as “helpful” by the visitors to a product’s page are displayed more prominently, and are therefore more likely to be read by visitors. Nutriwise took advantage of that system by instructing its employees to go to Amazon and mark the positive reviews of the Nutriwise product as “helpful”, and the negative reviews as “unhelpful”. Furthermore, Nutriwise made sure that positive reviews of its product were posted on Amazon by rewarding customers who posted positive product reviews on Amazon with free products and gift cards. 

One of Nutriwise’s competitors, Vitamins Online, noticed what Nutriwise was doing and sued Nutriwise under the Lanham Act for making false or misleading representations of fact. Specifically, Vitamins Online argued that “the voting and the rewarding are giving a false impression that many unbiased consumers find positive reviews to be helpful and negative reviews to be unhelpful and that a high number of unbiased consumers chose to post positive reviews on without any anticipation of reward.”

The court held that Nutriwise’s alleged manipulation was potentially a Lanham Act violation, but a crucial piece of evidence was missing: actual consumer deception. The alleged manipulation claim was one for impliedly false advertising, and such claims require evidence of actual consumer deception (which evidence usually consists of consumer surveys). Presumably, if Vitamins Online was able to produce such evidence, it would be able to prevail on its Lanham Act claim against Nutriwise. 

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Attorney Brett D. Ekins

Brett D. Ekins is an experienced and accomplished trademark and intellectual property lawyer. He represents clients in intellectual property matters and commercial litigation throughout Utah, Nevada and California in state and federal courts, including high-stakes litigation involving trademarks, patents, copyrights and trade secrets. Brett also has extensive experience registering trademarks with the United States Patent and Trademark Office, including proceedings before the Trademark Trial and Appeal Board.