When shopping for watches on Amazon.com, you might be surprised to find that a search for the luxury military-style watch “mtm special ops” brings you to a list of watches designed by competitors of Multi Time Machine, Inc. (MTM). According to the 9th Circuit Court of Appeals, this practice does not infringe on MTM’s trademark rights.
The 9th Circuit appellate panel reversed its own decision In Multi Time Machine, Inc. v. Amazon.com, Inc.; Amazon Services, LLC, published last Wednesday. In issuing summary judgment in favor of Amazon, the court held that no reasonable trier of fact could conclude that a likelihood of confusion existed based on the layout of Amazon’s search results page.
From the watchmaker’s perspective, Amazon’s search results created “initial interest confusion” that generated awareness of competitors’ products. Initial interest confusion may damage sales by taking advantage of a trademark’s good will and thus could create a cause of action for trademark infringement. MTM asserted that such confusion was even more likely because Amazon’s search results page did not include a message such as “no search results found” to suggest (accurately) that it does not sell MTM watches.
The court concluded that there was no likelihood of initial interest confusion because the non-MTM watches were “clearly labeled by Amazon” such that a “reasonably prudent customer accustomed to online shopping” would not be deceived. The court reasoned that the buyer could see clear images of the watches next to the boldly-lettered brand name (which Amazon opportunely included two times next to each product – for example, “Luminox Men’s 8401 Black Ops Watch by Luminox”). Even a couple of books appeared in the search results for “mtm special ops,” which as noted by the court, made it even less likely that a reasonably prudent online shopper would be confused.
Because the decision does not forbid online retailers from using proprietary product names as keyword terms, it seems likely that Amazon and other online marketplaces will continue to capitalize on brand name searches. Still, consumers seeking to purchase an authentic MTM watch should be advised that they will not find it on Amazon.