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Amazon Search Results for Related Products, Listing Mark, Unlikely to Confuse Consumers

Wednesday, February 27, 2013
By Amy E. Bivins Inc.'s display of a search term alongside competing products is unlikely to confuse consumers as to the products' source, the U.S. District Court for the Central District of California held Feb. 20 (Multi Time Machine Inc. v., C.D. Cal., No. 2:11-cv-09076-DDP-MAN, 2/20/13).

Judge Dean D. Pregerson looked to the Ninth Circuit's keyword advertising analysis in Network Automation Inc. v. Advanced Systems Concepts Inc., 638 F.3d 1137, 97 U.S.P.Q.2d 2036 (9th Cir. 2011) (47 PTD, 3/10/11). The court concluded that, given the relatively high price of the goods and the labeling of the search results, consumers were unlikely to be confused as to the source of the products.

The plaintiff's report, suggesting that consumers might be confused upon receiving search results for one brand of watches when they searched for another, did not convince the court that a likelihood of confusion existed.

“A consumer could, for instance, puzzle over why a search query 'mtm special ops' produced a results page listing ten watches but none of them with the MTM brand without also being confused as to the source of the watches presented on the results page,” the court said. 

Amazon's Ad and Product Displays at Issue

Multi Time Machine Inc. sells military style watches through the internet under the brand names “MTM Special Ops” and “MTM Military Ops.”

Amazon displays the user's entered search term, even if it does not sell the product identified in the term. Though it does provide a link to MTM's website, Amazon sells--and displays ordering information for--watches sold by MTM competitors Luminox and Chase-Durer.

MTM sued for trademark infringement . Amazon moved for summary judgment of noninfringement. 

Network Automation Demands Dismissal

The court said that, to establish a trademark infringement claim under the Lanham Act, a plaintiff must show that a defendant used a mark creating a likelihood of confusion among consumers. The court avoided deciding whether Amazon's display of search terms including a mark was an actionable use in commerce, deciding that the claim failed on the likelihood of confusion factor.

AMF Inc. v. Sleekcraft Boats, 599 F.2d 341, 204 U.S.P.Q. 808 (9th Cir. 1979), set forth eight nonexclusive factors to guide the likelihood of confusion analysis.

Network Automation said that, of those factors, four are most relevant in the keyword advertising context are: 

  • the strength of the mark;       
  • evidence of actual confusion;  
  • the type of goods and degree of care likely to be exercised by the purchaser; and       
  • the labeling and appearance of the ads and surrounding text.    

Each of those factors weighed in Amazon's favor.   

An Unusual Case: Amazon Demonstrates No Confusion

MTM's marks were weak, the court said. The marks were suggestive at best, and more likely descriptive.

For the second factor, the case presented an unusual situation, the court said. Amazon presented evidence that there was no actual confusion--evidence the court said was persuasive. Amazon's evidence showed that searches for the plaintiff's mark were 21 times less likely to result in a purchase than a search for a competitor's mark.

“Because the 'luminox' search is more than twenty-one times as likely to result in purchase, the court finds that Amazon has presented evidence that there is no actual confusion,” the court said.

The relatively high price of the goods, combined with the increased degree of care that consumers are using in online purchases, tipped the third factor in Amazon's favor.

For the fourth factor, Amazon displayed the search term in the search box and in the search trail below the box. The search results were clearly labeled with the product brands. As a result, consumers were unlikely to be confused as to the source of the products.

The court granted Amazon's motion for summary judgment.

MTM was represented by Jeffrey R. Cohen of Millen White Zelano & Branigan, Arlington, Va. Amazon was represented by Allan E. Anderson of Ropers Majeski Kohn Bentley, Los Angeles.


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