Amazon May Use Trademark Search to Push Competitor’s Products
(October 28, 2015) After apparently suffering its own confusion, the Ninth Circuit has withdrawn its opinion finding that Amazon.com’s search results caused initial interest confusion and now believes there is no confusion when the online retailer did not disclose that it does not offer the brand being searched.
In its original opinion issued in July (See our earlier story), the appellate court found there were sufficient factual issues to allow a jury to decide if Amazon infringed on the trademark for MTM Special Ops for military-style watches manufactured by Multi Time Machine, Inc. The watch company does not sell the watches on Amazon.com. However, when a customer searches for “mtm special ops” on Amazon.com, the retailer returns a list containing competitors of Multi-Time Machine. Amazon did not disclose that it does not sell MTM watches.
In its new opinion, the Ninth Circuit granted Amazon’s motion for summary judgment. “Because Amazon’s search results page clearly labels the name and manufacturer of each product offered for sale and even includes photographs of the items, no reasonably prudent consumer accustomed to shopping online would likely be confused as to the source of the products,” the opinion states.
For trademark owners, the decision makes it more difficult to prevent an online retailer from piggy-backing on searches using the trademark to push the retailer’s own or competitors’ products.
At issue is the question of “initial interest confusion,” that is, whether a consumer would be initially confused into thinking that the watches on the Amazon list were somehow connected with the MTM Special Ops watches. The new majority opinion disagreed that there is any initial interest confusion because “no reasonable trier of fact could conclude that Amazon’s search results page would likely confuse a reasonably prudent customer accustomed to shopping online as to the source of the goods being offered.”
The dissenting opinion argues that the majority opinion is, in effect, overruling the Ninth Circuit’s “initial interest confusion doctrine.” In doing so, “the majority today writes new trademark law and blurs the line between innovation and infringement.” The dissent would have the issue of whether there is confusion decided by a jury.
The dissent notes that Amazon “does not forestall any confusion by informing customers who are searching ‘MTM Special Ops’ that Amazon does not carry any such products. Amazon does just the opposite. It responds by twice naming MTM, and once specifically naming watches.”
Multi Time Machine, Inc. v. Amazon.com, Inc., Ninth Cir. No. 13-55574, filed October 21, 2015.