Amazon Search for MTM Watches May Confuse Customers

(July 7, 2015) Amazon’s search results are creating enough confusion over a high-priced watch to require a jury to decide if there is trademark infringement, the Ninth Circuit found, reversing the trial court’s dismissal of the case.

MTM Special Ops sells high-end, military-style watches manufactured by Multi-Time Machines, Inc. The watches are not sold on Amazon because MTM wants to maintain an image as a high-end exclusive brand.

However, when a customer searches Amazon for the brand, the results show MTM’s competitors’ watches, the Ninth Circuit found. By showing competitors’ watches, the results may cause initial interest confusion for consumers, the court said. Whether the confusion exists cannot be decided on a motion for summary judgment but instead must be decided by the jury.

“Whether customers will believe the options on Amazon’s page, which do not include MTM products, are clearly marked as having no association with, or approval by, MTM, and whether they will be confused, is an open question, and its answer does not render the identity of the goods here moot. Rather, a jury could find that it weighs in favor of finding likelihood of confusion,” the opinion states.

“Unlike its competitors Buy.com and Overstock.com, Amazon does not forestall any confusion by informing customers who are search ‘MTM Special Ops’ that Amazon does not carry any such products,” the court wrote.

The dissent found it “is possible that some dolt somewhere might be confused by the search results page,” but not highly sophisticated buyers of expensive watches. “The search results page makes clear to anyone who can read English that Amazon only carries the brands of watches that are clearly and explicitly listed on the web page. The search results page is unambiguous.”

“In light of Amazon’s clear labeling of the products it carries, by brand name and model, accompanied by a photograph of the item, no rational trier of fact could possibly find that a reasonably prudent consumer accustomed to online shopping would likely be confused by the Amazon search results,” the dissent concluded.

The majority noted they “are by no means certain that MTM will be able to prove likelihood of confusion under an initial interest confusion theory, but we are confident the matter can be determined only by resolving genuine issues of material fact” at a trial.

Multi Time Machine, Inc. v. Amazon.com, Inc., Ninth Cir. No. 13-55575, filed July 6, 2015.