In October, the Ninth Circuit reversed on rehearing its previous decision in Multi Time Machine, Inc. v. Amazon.com, Inc. and Amazon Services LLC, 804 F.3d 930 (9th Cir. 2015), finding that Amazon is not liable for trademark infringement resulting from its search results.
Multi Time Machine, Inc., the manufacturer of the high-end MTM Special Ops watches, brought a trademark infringement action against e-commerce website Amazon, alleging that Amazon infringed its trademark because of the way in which Amazon displayed the search results for MTM Special Ops watches, which neither Amazon nor MTM sells on Amazon. Specifically, a search for "mtm special ops" on Amazon's website returns search results for alternative products, including other watches. MTM argued that because a search for MTM Special Ops watches on Amazon displays watches manufactured by MTM's competitors and does not inform the consumer that Amazon does not carry MTM watches, there is a likelihood of "initial interest confusion." Namely, MTM argued that a consumer may be confused into thinking that a relationship exists between MTM and one of its competitors, as displayed on the Amazon search. Because of this initial confusion, MTM asserted, the consumer may choose to buy the competitor watch instead of continuing to seek out an MTM watch.
In a 2-1 majority decision, the panel affirmed the district court's summary judgment in favor of Amazon, holding that Amazon's search results page does not create a likelihood of confusion by displaying other brands' watches.
The opinion turned on issues of: (1) the identity of the "relevant reasonable consumer" of the MTM Special Ops watches; and (2) that consumer's reasonable belief based on Amazon's search results. As to the first issue, the court found that because MTM Special Ops watches sell for several hundred dollars, the relevant consumer would be considered a "reasonably prudent consumer accustomed to shopping online" (citing Toyota Motor Sales, U.S.A., Inc. v. Tabari, 610 F.3d 1171 (9th Cir. 2010)). As to the second issue, the court found that the products displayed on Amazon's search results page were clearly labeled and, therefore, no reasonably prudent consumer would be confused by Amazon's search results.
In his dissenting opinion, Judge Carlos Bea stressed that whether there is a likelihood of initial interest confusion is a question for the jury, and not for the court, stating that "MTM may be mistaken. But whether MTM is mistaken is a question that requires a factual determination, one this court does not have the authority to make."
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