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Time may be up for Amazon’s use of watchmaker’s trademark, 9th Circuit says

July 7, 2015 – When customers search for trademarked products,’s search-results pages use the trademark—even if Amazon does not sell the trademarked product—and list competing goods. On Monday, the 9th Circuit Court of Appeals determined this practice could be likely to cause confusion. The appeals court reversed summary judgment in favor of Amazon, and remanded the case for further proceedings.

Multi Time Machine, Inc. (MTM) sells watches under various trademarks including MTM SPECIAL OPS. Amazon does not carry MTM watches. In response to a search for “mtm special ops” on Amazon, the website showed the trademark three times: in the search field; in quotation marks immediately below the search field; and in the phrase “Related Searches: MTM special ops watch.” Each use appeared above the term “Showing 10 Results” and a list of watches for sale manufactured by MTM’s competitors. Unlike other online retailers, Amazon’s response did not state that Amazon does not sell MTM products.

The court applied the “initial interest confusion” theory. Under this theory, trademark infringement can be based upon confusion that creates initial customer interest, even though no actual sale is completed as a result of the confusion. Some members of MTM’s target demographic, 22- to 55-year-old men who like military-styled, rugged products, may not be frequent internet shoppers. Such purchasers may incorrectly believe that Amazon licensed the trademark from MTM. Other consumers may simply believe that Amazon or the manufacturers it features bought out MTM, or that they are related companies. This potential confusion is enough to put the case before a jury. Most U.S. courts recognize the initial interest confusion theory as a form of likelihood of confusion which can trigger a finding of infringement, but some courts differ on the theory’s application to the internet.

Amazon also argued that its use of MTM’s trademarks was not “use in commerce,” a requirement for trademark infringement. The court disagreed—similar to the search-engine context, Amazon’s use of a trademark in the retail-search context to trigger lists of competing goods is a use in commerce.

Millen, White, Zelano & Branigan, P.C. attorney Jeff Cohen was co-counsel for MTM on the appeal. Attorneys Jeff Cohen, Michael Culver and Adam Mandell represented MTM in the district court.

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