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When a consumer asks a retailer for a product the retailer doesn’t carry, how should the retailer respond? A recent federal appellate court opinion suggested that Amazon.com gave the wrong answers to consumers searching for a watch brand that it didn’t carry.

The Ruling

Multi-Time Machine makes high-end military-style watches under brand names including “MTM Special Ops.” MTM tightly controls its distribution channels. As a result, Amazon.com doesn’t carry MTM’s watches. When Amazon consumers searched for “MTM Special Ops Watches” in Amazon’s internal search engine, consumers were provided a list of “aesthetically similar, multi-function watches manufactured by MTM’s competitors” such as Luminox and Chase-Durer, but the search results page did not expressly say that Amazon doesn’t carry MTM watches:

Amazon’s disclosures on its internal search results page differ from competitors Buy.com and Overstock.com, both of whom “clearly announce that no search results match the ‘MTM Special Ops’ query and those websites do not route the visitor to a page with both MTM’s trademark ‘MTM Specials Ops’ repeatedly at the top and competitors’ watches below. Their pages show the search query playback but then forthrightly state that no results for the ‘MTM Special Ops’ search query were found, and then list competitors’ products.”

MTM claimed that Amazon’s search results constituted trademark infringement. The district court ruled for Amazon, saying that the search results page didn’t create actionable consumer confusion. In a split vote, recently the Ninth Circuit Court of Appeals reversed, holding that Amazon’s search results presentation might constitute trademark infringement and sending the case to the jury.

The majority opinion focuses on a much-criticized trademark doctrine called initial interest confusion. The Ninth Circuit has had a dozen or so cases addressing initial interest confusion, and its handling of the doctrine has vacillated wildly. In 1999, the Ninth Circuit adopted an exceptionally (and, in my opinion, unreasonably) overbroad definition of the concept. This led to a series of tortured and inconsistent rulings until 2011, when the Ninth Circuit adopted a more constrained definition that virtually killed the doctrine.

Case citation: Multi Time Machine, Inc. v. Amazon.com, Inc., 2015 WL 4068877 (9th Cir. July 5, 2015)

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The content in this post was found at http://blog.ericgoldman.org/archives/2015/07/troubling-trademark-ruling-over-amazons-internal-search-results-mtm-v-amazon-forbes-cross-post.htm and was not authored by the moderators of freeforafee.com. Clicking the title link will take you to the source of the post.