Divided Ninth Circuit Panel, Reversing Itself, Holds That Amazon's Search Results Do Not Cause A Likelihood Of Initial Interest Confusion

In a closely watched case involving the design of the search results page on Amazon.com, a divided panel of the Ninth Circuit held that the page did not create a likelihood of initial interest confusion.

The court had originally reached the opposite conclusion back in July, in a decision written by Judge Carlos Bea over the dissent of Judge Barry Silverman. Following a motion for reconsideration, the third judge on the panel, Senior District Judge Gordon Quist (sitting by designation), without explanation, switched his vote, turning Judge Silverman's dissent into the majority opinion.

The case was brought by MTM, a company that manufactures military-style wristwatches under brands like "MTM Special Ops." MTM's watches are not sold on Amazon. If a consumer searches for the phrase "MTM Special Ops" in the Amazon search bar, she will be taken to a page where that phrase is repeated three times: (i) in the search field; (ii) in quotes immediately below the search field; and (iii) in the phrase "Related Searches: MTM special ops watch." The consumer would also be presented with a list of results that includes watches manufactured by other companies. Next to a picture of the watch, the name of its seller would appear twice (e.g., "Luminox Men's 8401 Black Ops Watch by Luminox").

MTM alleged that the search results created initial interest confusion. That is, MTM argued, a consumer may be initially confused into believing the watches in the search results were MTM watches, causing her to pay attention to a competitor's watch when she otherwise might not have. The Ninth Circuit and other courts have held that such confusion is actionable under the Lanham Act, even if the consumer is not confused at the point of sale—i.e., she discovers prior to purchase that the watch is not an MTM watch. Notably, MTM did not present survey evidence.

The district court granted summary judgment in favor of Amazon, holding that, as a matter of law, there was no likelihood of confusion. As noted above, a divided panel of the Ninth Circuit originally reversed and remanded. However, upon reconsideration, the panel affirmed the district court's judgment.

The majority found that the traditional likelihood-of-confusion factors set forth in AMF Inc. v. Sleekcraft Boats, 599 F.2d 341 (9th Cir. 1979), were "not particularly apt" in the context of an Internet search page. In the court's view, "the Sleekcraft test was developed for a different problemi.e., for analyzing whether...