A panel of the Court of Appeals for the Ninth Circuit held that a maker of up-scale military-style watches that did not sell products on Amazon could sue Amazon for trademark infringement because Internet users who use the company’s product name as a search term on Amazon’s web site were presented with a set of search results for competing watches from other makers were without a disclaimer stating that none of these makers were any affiliated with the company.
After the court relied on a theory of initial interest confusion to support reversal of summary judgment in favor of Amazon. Amazon sought rehearing en banc, urging the Ninth Circuit to pare back the doctrine of initial interest confusion to make it consistent with a pair of decisions form 2010 and 2011. Public Citizen filed an amicus brief supporting rehearing and urging the court to overrule its cases adopting initial interest confusion as a viable basis for finding trademark infringement based on the contents of search engine results. The panel, however, reversed its position and affirmed the grant of summary judgment. The dissenting judge accused the majority of overruling initial interest confusion sub silentio.