Amazon Gets Search Result Win in Ninth Circuit Do-Over

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By Joseph Wright

Oct. 21 — Inc. didn't create consumer confusion by offering competitors' products as options when consumers entered search terms for high-end watches the e-commerce retailer doesn't carry, the U.S. Court of Appeals for the Ninth Circuit said in a Oct. 21 reversal.

“The search results page makes clear to anyone who can read English that Amazon carries only the brands that are clearly and explicitly listed on the web page,” Judge Barry G. Silverman said, writing for the 2-1 majority.

The decision appears to be a victory for online retailers and advertisers. The court's previous opinion arguably opened the door to trademark infringement lawsuits based on a fairly open-ended definition of diverting consumers from one product to another.

The Ninth Circuit initially ruled that the likelihood of “initial interest confusion” from the practice was a fact question for a jury, denying Amazon's request for summary judgment. Amazon requested an en banc rehearing in front of all Ninth Circuit judges, but instead the initial three-judge panel filed a superseding opinion reversing its own July 6 determination.

Judge Carlos T. Bea dissented, saying the majority added an element to finding a likelihood of consumer confusion under the Lanham Act, 15 U.S.C. § 1114, that doesn't appear in the statutory text. “The majority reads the statute to contain language that it does not, essentially reading the clause ‘at point of sale' into the end of § 1114(1)(a),” Bea said.

Search Results Confusing?

Plaintiff Multi Time Machine Inc. (MTM) claimed that Amazon created initial interest confusion, which occurs when someone piques a consumer's interest in a trademarked product only to present similar goods by another maker when it turns out the promised goods aren't available. The consumer is aware that it is buying a different brand of goods by the time they make their purchase, but courts have split over whether consumers' initial confusion is actionable under the Lanham Act.

MTM sells Special Op branded military-style watches through an exclusive vendor list that doesn't include Amazon or Amazon-affiliated distributors. When consumers typed “mtm special ops” into Amazon's search bar, the subsequent screen replicated the search terms twice and listed 10 results, many of which were for competitors' products.

MTM argued that the labeling of competing products on Amazon's search results page was confusing due to the overall layout, including the “mtm special ops” search terms. The court disagreed, saying that each individual product on the results page was clearly labeled by brand name and model number with an accompanying picture. Further, several of the results weren't for watches at all, but rather for books, and no reasonably prudent online shopper would conclude that such search results were for MTM watches, the court said.

MTM also argued Amazon should change its search results page to state unambiguously that no results were found for MTM watches before suggesting alternatives. The court said, however, that any English-speaking reader would understand that Amazon only carries the brands listed, and that the search results are already unambiguous in that regard.

Question for Jury, Dissent Says

The dissent said that MTM had asserted that a shopper could be confused into thinking a relationship existed between MTM and the brands that appeared in the Amazon search results. While MTM might be wrong, Bea said, the majority usurped the jury's role by making that determination for itself.

In the process, Bea said, the majority implicitly overruled the initial interest confusion without expressly saying so.

Wolf Rifkin Shapiro Schulman & Rabkin LLP and Millen White Zelano & Branigan PC represented MTM. Faegre Baker Daniels LLP and Arent Fox LLP represented Amazon.

To contact the reporter on this story: Joseph Wright in Washington at

To contact the editor responsible for this story: Keith Perine in Washington at

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