Multi Time Machine v. Amazon

A panel of the Court of Appeals for the Ninth Circuit held that a maker of up-scale military-style watches that refused to allow its products to be sold on Amazon (its CEO explained that sale in that marketplace would connote low quality) 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 are presented with a set of search results for competing watches from other makers without an express disclaimer stating that none of these makers has any affiliation with the plaintiff company. The panel majority relied on a theory of initial interest confusion to support reversal of summary judgment in favor of Amazon. Amazon seeks 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. Supporting rehearing en banc, Public Citizen urges the Ninth Circuit to go further and 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 instead, in an opinion that appears to invite future petitions seeking reconsideration of the doctrine of “initial interest confusion”; the dissenting judge accused the majority of overruling initial interest confusion sub silentio.