Amazon Faces Trademark Lawsuit over 'Confusing' Search Results
A specialty watchmaker can go forward with a trademark infringement lawsuit that alleges Amazon's product search results could cause confusion for shoppers, a federal appeals court ruled Monday. The 2-1 decision by the U.S. Court of Appeals for the Ninth Circuit reversed an earlier district court ruling on the complaint.
The case revolves around Multi Time Machine Inc.'s allegation that Amazon's search results could confuse buyers looking for its high-end, military-style watches. Amazon does not carry Multi Time Machine (MTM) products, but a search for that brand produces results with links to watches from other companies.
MTM's complaint concerns the fact that searches on the retail giant's site do not generate results that explicitly state that Amazon does not sell Multi Time Machine watches. Instead, the results page features the search term for MTM watches at the top while displaying similar watches from other brands.
'No Coke. Pepsi.'
"What the Web site's response states, together with what its response does not state, determines whether its response is likely to cause confusion," Circuit Court Judge Carlos Bea stated in his opinion. "If confusion results from the Web site's response, there may be trademark infringement."
The court's ruling noted that other online retailers such as Buy.com and Overstock.com produce search results that clearly state they do not carry certain products. However, in a search for MTM watches Amazon's results page clearly labels the other brands listed alongside photos of those timepieces.
In his dissent to Monday's ruling, Circuit Court Judge Barry Silverman referred to the old "Saturday Night Live" sketch in which the late John Belushi, acting as a short-order cook, responds to customers ordering a Coke, "No Coke. Pepsi."
"Would anyone seriously contend that the diner violated Coke's trademark by responding to the customer's order that it doesn't carry Coke, only Pepsi?" Silverman asked. He added that because Amazon clearly names the competing brands in its search results, "no reasonably prudent consumer accustomed to shopping online would likely be confused as to the source of the products."
Lots of Lawsuits, Few Victories
We reached out to Amazon for comment on Monday's court decision, but a spokesperson told us that the company has "a longstanding practice of not commenting on active litigation."
Numerous lawsuits similar to MTM's were filed in the early era of online search engines, but few have resulted in court findings against the search companies. "(A)t one point around 2010, I believe Google had about a dozen simultaneously pending lawsuits," noted Eric Goldman, a professor at Santa Clara University School of Law who blogs on technology and marketing law, in a June 2 blog post on Forbes.
However, in a June 8 blog post Goldman said, "Keyword advertising using competitors' trademarks is now so well-accepted, it may be hard to remember that the practice used to generate serious debate among lawyers and ethicists."
Things have sometimes proved different in cases overseas. In 2014, for instance, the cosmetics company Lush won a high court judgment in the U.K. against Amazon UK, which does not carry Lush products, for showing results of products from competitors. In a cheeky follow-up response, Lush trademarked the name "Christopher North," which also happened to be the name of Amazon UK's managing director.