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FOR PUBLICATION
UNITED STATES COURT OF APPEALSFOR THE NINTH CIRCUIT
MULTI TIME MACHINE, INC.,Plaintiff-Appellant,
v.
AMAZON.COM, INC.; AMAZONSERVICES, LLC,
Defendants-Appellees.
No. 13-55575
D.C. No.2:11-cv-09076-
DDP-MAN
OPINION
Appeal from the United States District Courtfor the Central
District of California
Dean D. Pregerson, District Judge, Presiding
Argued and SubmittedApril 9, 2015Pasadena, California
Filed July 6, 2015
Before: Barry G. Silverman and Carlos T. Bea, CircuitJudges and
Gordon J. Quist,* Senior District Judge.
Opinion by Judge Bea;Dissent by Judge Silverman
* The Honorable Gordon J. Quist, Senior District Judge for the
U.S.District Court for the Western District of Michigan, sitting by
designation.
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MULTI TIME MACHINE V. AMAZON.COM2
SUMMARY**
Trademark
The panel reversed the district courts summary judgmentin a
trademark infringement action under the Lanham Actagainst online
retailer Amazon.com.
Multi Time Machine, Inc., manufacturer of MTM SpecialOps
watches, alleged that Amazons website infringed itstrademark
because of the manner in which the websiteresponded to a shoppers
search request for the watches. Thepanel held that a jury could
find that Amazon had created alikelihood of confusion under an
initial interest confusiontheory by responding to a search request
with a page showingMTM Special Ops three times above a search
resultdisplaying similar watches manufactured by
MTMscompetitors.
Dissenting, Judge Silverman wrote that becauseAmazons search
result clearly labeled the name andmanufacturer of each product
offered for sale and evenincluded photographs of the items, no
reasonably prudentshopper accustomed to shopping online would
likely beconfused as to the source of the products.
** This summary constitutes no part of the opinion of the court.
It hasbeen prepared by court staff for the convenience of the
reader.
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MULTI TIME MACHINE V. AMAZON.COM 3
COUNSEL
Eric Levinrad (argued) and Ryan Stonerock, Wolf, Rifkin,Shapiro,
Schulman, & Rabkin, LLP, Los Angeles, California;Jeffrey Cohen,
Millen, White, Zelano & Branigan, P.C.,Arlington, Virginia, for
Plaintiff-Appellant.
Marc C. Levy (argued) and Kathryn Feiereisel, Faegre
BakerDaniels LLP, Denver, Colorado, for Defendants-Appellees.
OPINION
BEA, Circuit Judge:
We are called upon to determine whether the operation ofa
retailers website infringes a trademark because of themanner in
which it responds to a shoppers search request forthe trademarked
goods. What the websites response states,together with what its
response does not state, determineswhether its response is likely
to cause confusion. Ifconfusion results from the websites response,
there may betrademark infringement.
MTM Special Ops watches are high-end, military stylewatches
manufactured by Multi-Time Machines, Inc.(MTM). Online retailer
Amazon.com (Amazon) doesnot carry MTM watches. If her brother
mentioned MTMSpecial Ops watches, a frequent Amazon shopper might
tryto purchase one for him through Amazon. If she were toenter MTM
Special Ops as her search request on theAmazon website, Amazon
would respond with its pageshowing MTM Special Ops (1) in the
search field (2) MTMSpecials Ops againin quotation
marksimmediately
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MULTI TIME MACHINE V. AMAZON.COM4
below the search field and (3) yet again in the phraseRelated
Searches: MTM special ops watch, all beforestating Showing 10
Results.1 What the websites responsewill not state is that Amazon
does not carry MTM products. Rather, below the search field, and
below the second andthird mentions of MTM Special Ops noted above,
the sitewill display aesthetically similar, multi-function
watchesmanufactured by MTMs competitors. The shopper will seethat
Luminox and Chase-Durer watches are offered for sale,in response to
her MTM query.
MTM asserts the shopper might be confused into thinkinga
relationship exists between Luminox and MTM. As a resultof this
initial confusion, MTM asserts she might look into
1 Our recitation of the facts, and our decision, are based on
the evidencesubmitted below. However, we may take judicial notice
of facts which arepublicly available and not subject to reasonable
dispute in that [they are]. . . capable of accurate and ready
determination by resort to sourceswhose accuracy cannot reasonably
be questioned. See Daniels-Hall v.Natl Ed. Assn, 629 F.3d 992,
998999 (9th Cir. 2010) (citing Fed. R. Ev.201). Amazons website is
such a source. As of June 26, 2015, Amazonhosts a static webpage
which states that At Amazon.com, we not onlyhave a large collection
of mtm special ops watch products [which, ofcourse, is flatly
untrue], but also a comprehensive set of reviews from ourcustomers.
Below weve selected a subset of mtm special ops watchproducts and
the corresponding reviews to help you do better research,and choose
the product that best suits your needs.
Amazon,http://www.amazon.com/gp/feature.html?ie=UTF8&docId=1001909381.
As of the same date, when an Amazon shopper searches mtm
specialops, under the search query playback he will see 9 results
for mtmspecial ops. Amazon,
http://www.amazon.com/s/ref=nb_sb_noss_2?url=search-alias%3Daps&field-keywords=mtm+special+ops.
Thoughunnecessary to our result, we think that a jury might find
that these pagesprovide insight as to defendants intent to confuse
(p. 1819, infra) andthus give rise to an even greater likelihood of
confusion than the earlierformat used by Amazon.
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MULTI TIME MACHINE V. AMAZON.COM 5
buying a Luminox watch, rather than junk the questaltogether and
seek to buy an MTM watch elsewhere. MTMasserts that Amazons use of
MTMs trademarked name islikely to confuse buyers, who may
ultimately buy acompetitors goods.
The district court found Amazons use of MTMstrademark created no
likelihood of confusion as a matter oflaw. But we think a jury
could find that Amazon has createda likelihood of confusion. We
therefore reverse the districtcourts grant of summary judgment in
favor of Amazon.
Facts and Procedural History
Founded in 1992, MTM manufactures and marketswatches under
various brand names, including MTM, MTMSpecial Ops, and MTM
Military Ops. MTM holds aregistered trademark in MTM SPECIAL OPS2
fortimepieces. MTM sells its watches directly to customers,through
various distributors and retailers, and on militarybases. MTM
markets its watches to men 2255 years of agewho are drawn to
rugged, military-style outdoor products. Thinking to cultivate and
maintain an image as a high-end,exclusive brand, MTM decided not to
sell its watches toAmazon for resale. Nor does MTM authorize its
distributorsto sell MTM watches on Amazon. MTMs agreements withits
distributors require them to seek MTMs permission to sellMTMs
products anywhere but at their own retail sites.
Amazon claims to offer Earths Biggest Selection ofproducts,
products which include watches manufactured by
2 We refer to the various capitalizations of the trademark as
MTMSpecial Ops herein.
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MULTI TIME MACHINE V. AMAZON.COM6
various competitors of MTM. Amazon users who search forMTM
Special Ops on Amazons site are routed to a screenwhich shows the
phrase MTM Special Ops in the queryfield (the search query
playback); again immediately belowas MTM Special Ops with quotation
marks, directly belowthe search line; and immediately again after
with the wordsRelated Searches. After the three iterations of
MTMstrademark the screen lists search results, including
watchesmanufactured by MTMs competitors and listed by name.
Customers cannot purchase the watches from the searchresults page,
but must navigate to the product detail pageby clicking on a
particular search result. Once the customerhas clicked on a
particular result, he will see the particularproducts brand name
and the product title, which also showsthe brand name (e.g.,
Luminox). On the top of the productdetail page, the customers
initial inquiry, MTM SpecialOps, will still appear in the search
field. Nothing on eitherof the pages states that Amazon does not
carry MTMproducts. Not so the websites of Amazons
competitorsBuy.com and Overstock.com. They clearly announce that
nosearch results match the MTM Special Ops query and thosewebsites
do not route the visitor to a page with both MTMstrademark MTM
Specials Ops repeatedly at the top andcompetitors watches below.
Their pages show the searchquery playback but then forthrightly
state that no results forthe MTM Special Ops search query were
found, and thenlist competitors products.
MTMs competitors products appear in the Amazonsearch query
response in part because Amazons searchalgorithm responds to its
customers behavior using aBehavior Based Search technology (BBS),
which uses dataabout what customers view and purchase after
searchingcertain terms. Amazon does not program the terms; the
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MULTI TIME MACHINE V. AMAZON.COM 7
function responds solely to customer behavior. If
enoughcustomers search for a certain keyword, X, and then lookat or
purchase another product Y, even if X and Y are notobviously
related, future customers who search for X mayreceive search
results including Y. But the BBS function isnot solely responsible
for the search results. The results listalso includes matches based
on a search of terms onAmazons pagesfor instance, streaming video
of a showcalled Special Ops Mission may be called up. Whether
aparticular result appears because of BBS or a traditionalsearch of
matching terms is not evident from the matches, andthe relevant
products (which are based on search terms) andrecommended products
(based on BBS) are mingled together.
MTM sued Amazon, alleging that Amazon had infringedMTMs
trademarks in violation of the Lanham Act. MTMsought injunctive
relief barring use of the trademark anddamages. On Amazons motion,
the district court grantedsummary judgment to Amazon. MTM timely
appealed.
Standard of Review
We review de novo the district courts grant of summaryjudgment,
and must consider the evidence in the light mostfavorable to the
nonmoving party. Surfvivor Media, Inc. v.Survivor Prods., 406 F.3d
625, 630 (9th Cir. 2005). Thiscourt may affirm the grant of summary
judgment on anyground that finds support in the record. Karl
StorzEndoscopy Am., Inc. v. Surgical Technologies, Inc., 285
F.3d848, 855 (9th Cir. 2002).
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MULTI TIME MACHINE V. AMAZON.COM8
Discussion
Under the Lanham Act, a defendant infringes a trademarkwhen the
defendant uses the mark in commerce in a mannerlikely to cause
confusion as to a goods source. Trademarkinfringement also occurs
when the trademarks use incommerce is likely to cause confusion as
to the affiliation,association, or approval of the trademark holder
with thetrademark user.3 A defendant who infringes
anotherstrademark is liable for damages and subject to injunction.
15 U.S.C. 1114(1)(a), 1125(a)(1). Put another way, adefendant who
creates likelihood of confusion by usinganothers mark has infringed
the mark. Playboy Enterprises,Inc. v. Netscape Commcns Corp., 354
F.3d 1020, 1024 (9thCir. 2004).4
3 [A]ny person who shall, without consent of the registrant, use
incommerce any reproduction, counterfeit, copy, or colorable
imitation ofa registered mark in connection with the sale, offering
for sale,distribution, or advertising of any goods or services on
or in connectionwith which such use is likely to cause confusion,
or to cause mistake isliable for damages, and the registrant may be
entitled to injunctive relief. 15 U.S.C. 1114(1)(a). Any person who
uses in commerce any word,term, name, symbol, or device . . . which
is likely to cause confusion . . .as to the affiliation,
connection, or association of such person with anotherperson, or as
to the origin, sponsorship, or approval of his or her
goods,services of commercial activities is also subject to
injunction and liablefor damages to one likely to be damaged. 15
U.S.C. 1125(a)(1).
4 In Playboy, defendant search engine Netscape required
adult-orientedwebsites who purchased advertising from Netscape to
link theiradvertisements to search keywords playboy and playmate,
trademarksof Playboy Enterprises (PEI). 354 F.3d at 1023. When
Netscape userssearched the terms, they would be presented with
banner ads for non-PEIoperated websites that said click here and
routed users to advertiserswebsites. Id. PEI sued Netscape for
Lanham Act violations, and thedistrict court granted summary
judgment in favor of defendants. Id. This
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MULTI TIME MACHINE V. AMAZON.COM 9
A defendant can create likelihood of confusion, andthereby
infringe the trademark, through a type of confusionreferred to as
initial interest confusion. Initial interestconfusion occurs not
where a customer is confused about thesource of a product at the
time of purchase, but earlier in theshopping process, if customer
confusion . . . creates initialinterest in a competitors product.
Id. at 1025. Even if thatconfusion is dispelled before an actual
sale occurs, initialinterest confusion still constitutes trademark
infringementbecause it impermissibly capitalizes on the
goodwillassociated with a mark and is therefore actionable
trademarkinfringement. Id.
A. Likelihood of Confusion
This court considers eight non-exhaustive factors, knownas the
Sleekcraft factors, to determine whether a trademarkuse gives rise
to a likelihood of confusion: (1) strength of themark(s); (2)
proximity or relatedness of the goods;(3) similarity of the marks;
(4) evidence of actual confusion;(5) marketing channels; (6) degree
of consumer care; (7) thedefendants intent; and (8) likelihood of
expansion. NetworkAutomation, Inc., v. Advanced Sys. Concepts,
Inc., 638 F.3d1137, 1145 (9th Cir. 2011) (citing AMF Inc. v.
SleekcraftBoats, 599 F.2d 341, 34849 (9th Cir. 1979)). As
theNetwork Automation court explained, in the context ofinternet
commerce, though likelihood of confusion might beshown where
consumers saw banner advertisements thatwere confusingly labeled or
not labeled at all. . . .clearlabeling might eliminate the
likelihood of confusion.
court reversed. We found that initial interest confusion
supported aninfringement theory even if users realized they were
not at a PEI sitebefore making a purchase. Id. at 1025, 102629.
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MULTI TIME MACHINE V. AMAZON.COM10
Network Automation, 638 F.3d at 115354 (citing Playboy,354 F.3d
at 1023, 1030 n.43).5
Network Automation and Playboy addressed theunauthorized use of
a trademark to sell advertising keywords
5 In Network Automation, plaintiff Network Automation and
defendantAdvanced Systems Concepts both sold job scheduling and
managementsoftware. 638 F.3d at 1142. Network Automation advertised
its productby purchasing certain keywordsincluding registered
trademarksbelonging to Advanced Systemswhich, when typed into
various searchengines, produced a results page that included
Network Automationswebsite www.NetworkAutomation.com as a labeled,
sponsored link. Id. Advanced Systems alleged violation of the
Lanham Act and movedfor a preliminary injunction. Id. at 1143. The
district court granted apreliminary injunction to Advanced Systems,
and Network Automationappealed. Id. On appeal, this court reversed
and vacated the preliminaryinjunction. This court considered the
eight Sleekcraft factors and held thatthe district court had not
weighed the factors flexibly and that [b]ecausethe linchpin of
trademark infringement is consumer confusion, the districtcourt
abused its discretion in entering the injunction. Id. at 1154.
Thecourt held that because the sine qua non of trademark
infringement isconsumer confusion, when we examine initial interest
confusion, theowner of the mark must demonstrate likely confusion,
not merediversion. Id. at 1149. Amazon contends that because mere
diversiondoes not constitute initial interest confusion, the
doctrine is inapplicableto the internet. However, whether customers
are merely diverted is aquestion of fact. This court properly
considered whether the facts favoredAdvanced Systems in Network
Automation because a preliminaryinjunction requires the moving
party [there, the plaintiff alleginginfringement] demonstrate a
fair chance of success on the merits orquestions serious enough to
require litigation. Arc of Cal. v. Douglas,757 F.3d 975, 993 (9th
Cir. 2014). Therefore, the Network Automationcourt properly
considered the weight of the evidence to decide whetherAdvanced
Systems had a fair chance of success on the merits. Here, weare not
tasked to determine whether MTM is likely to succeed, nor
toconsider the weight of the evidence. As this is an appeal from a
summaryjudgment, we must decide whether there is a genuine triable
issue ofmaterial fact.
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MULTI TIME MACHINE V. AMAZON.COM 11
to search engines, not the use of a trademark to sellcompetitors
products. However, we think that in the salecontext, just as the
labeling and appearance of theadvertisements as they appear on the
result page includesmore than the text of the advertisement, and
must beconsidered as a whole, here the labeling of search
resultswhich feature competitors products is important.
NetworkAutomation, 638 F.3d at 1154. Because of its importance,
wefirst address labelingwhich we find gives rise to a genuineissue
of factand then turn to the traditional Sleekcraftfactors.
1. Labeling
MTM submitted an expert report that stated that thesearch
results on Amazon are ambiguous, misleading, andconfusing. Dist.
Ct. Order, 926 F.Supp.2d 1130, 1141 (N.D.Cal. Feb. 20, 2015). The
district court found that the expertanalysis showed only that
customers could be confused aboutwhy they receive certain search
results, but that there was noevidence that Amazon users were
likely to be confused as tothe source who manufactured the
competing goods Wedisagree. A jury could infer that users who are
confused bythe search results are confused as to why MTM products
arenot listed. Unlike its competitors Buy.com andOverstock.com,
Amazon does not forestall any confusion byinforming customers who
are searching MTM Special Opsthat Amazon does not carry any such
products.
A jury could infer that users who are confused by thesearch
result will wonder whether a competitor has acquiredMTM or is
otherwise affiliated with or approved by MTM. See Brookfield
Commcns, Inc. v. West Coast Entmt Corp.,174 F.3d 1036, 1057 (9th
Cir. 1999). This is especially true
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MULTI TIME MACHINE V. AMAZON.COM12
as to a brand like MTM, as many luxury brands with distinctmarks
are produced by manufacturers of lower-priced, better-known
brandsjust as Honda manufactures Acuraautomobiles but sells Acura
automobiles under a distinctmark that is marketed to wealthier
purchasers, and Timexmanufactures watches for luxury fashion houses
Versace andSalvatore Ferragamo. Like MTM, Luminox
manufacturesluxury watches, and a customer might think that MTM
andLuminox are manufactured by the same parent company.
Thepossibility of initial interest confusion here is likely
muchhigher than if, for instance, a customer using an onlinegrocery
website typed Coke and only Pepsi products werereturned as results.
No shopper would think that Pepsi wassimply a higher end version of
Coke, or that Pepsi hadacquired Cokes secret recipe and started
selling it under thePepsi mark.6
In any event, even as to expensive goodsfor instance,pianos sold
under a mark very similar to the famous Steinwayand Sons brands
markthe issue is not that a buyer mightbuy a piano manufactured by
someone other than Steinwaythinking that it was a Steinway. The
issue is that thedefendants use of the mark would cause initial
interest
6 The dissent also mentions Coke and Pepsi in conjunction with
thelabeling inquiry, and John Belushis Saturday Night Live
cheezborgerrefrainNo Coke. Pepsi. However, Belushis line is
analogous to themessage on Overstocks and Buys websites, which
state the equivalentof No Coke rather than simply inundating the
shopper with images ofPepsi. The dissent acknowledges that a
retailer who offers competitorsproducts for sale, without
mentioning that he does not carry a brandrequested by a customer,
is sort of like what happens when you order aCoke, and are clearly
told that they only have Pepsi. Dissent at 23. Butit is only sort
of like the Belushi scenario, because unlike Belushis NoCoke,
Amazon does not say No MTM.
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MULTI TIME MACHINE V. AMAZON.COM 13
confusion by attracting potential customers attention to buythe
infringing goods because of the trademark holders hard-won
reputation. Brookfield, 174 F.3d at 1063 (citingGrotrian,
Helfferich, Schulz, Th. Steinweg Nachf. v. Steinway& Sons, 523
F.2d 1331, 134142 (2d. Cir. 1975)).
A jury could infer that the labeling of the search results,and
Amazons failure to notify customers that it does nothave results
that match MTMs mark, give rise to initialinterest confusion. If
so, a jury might find that Amazoncustomers searching for MTM
products are subject to morethan mere diversion, since MTM is not
required to show thatcustomers are likely to be confused at the
point of sale. Playboy, 354 F.3d at 1025.
We agree with the district courts conclusion that theproduct
details for competitors itemized products wereclearly labeled, but
we find that the clarity of the searchresults page at issue is open
to dispute. We must notsubstitute our determination of what
constitutes clearlabeling, nor its importance, for that of a
jury.
2. Sleekcraft Factors
The Sleekcraft eight-factor test for likelihood ofconfusion is
pliant. Some factors are much more importantthan others, and the
relative importance of each individualfactor will be case-specific.
Brookfield, 174 F.3d at 1054. On a motion for summary judgment,
courts may considerwhether any of the Sleekcraft factors give rise
to a genuineissue of fact. Fortune Dynamic, Inc. v. Victorias
SecretStores Brand Mgmt., Inc., 618 F.3d 1025, 1031 (9th Cir.2010).
A court may be far from certain that consumers werelikely to be
confused [and still be] confident that the question
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MULTI TIME MACHINE V. AMAZON.COM14
is close enough that it should be answered as a matter of factby
a jury, not as a matter of law by a court. Id. If there is agenuine
issue of fact as to any of the factors, there is morelikely to be a
genuine issue of fact as to whether there islikelihood of
confusion. To avoid summary judgment aplaintiff need not show that
every factor weighs in his favor,only to make a strong showing as
to some of them (though wenote that, because the factors are not
exhaustive, a plaintiffcould presumably survive summary judgment by
adducingevidence of likelihood of confusion that did not fall
withinone of the factors). Surfvivor, 406 F.3d at 630.
Mindful that our analysis must be tailored to this case,
wediscuss below the five Sleekcraft factors we deem relevant
toresolution of the question of summary judgment: the strengthof
the mark, relatedness/proximity of the goods, evidence ofactual
confusion, defendants intent, and the degree of careexercised by
purchasers. Three of the Sleekcraft factors areirrelevant:
similarity of marks, marketing channels, andlikelihood of
expansion. As to similarity of marks, Amazonis using MTMs mark, not
another mark in its display ofsearch results. As to marketing
channels, both MTM andAmazon sell watches on the internet, which is
too widespreada market to affect the likelihood of confusion
amongcustomers. The possibility of expansion is irrelevant sinceMTM
and Amazon both already sell high-end timepieces, asdiscussed below
under the heading relatedness of thegoods.
We find that three of the remaining five relevant factorsappear
to weigh in favor of a finding of a likelihood ofconfusion, and we
address these first. We hold that it is theprovince of a jury to
determine how heavily each of thesefactors should weigh.
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MULTI TIME MACHINE V. AMAZON.COM 15
a. Strength of the Mark
A marks strength is a measure of how uniquely identifiedit is
with a product or service, and therefore how deserving oftrademark
protection. Fortune Dynamic, 618 F.3d at 1032. Two types of
trademark strength are relevant: commercialand conceptual.
Commercial strength refers to a marksrecognition in the
marketplace, that is, how widelyrecognized the mark is by
customers. Id. at 1034. NeitherMTM nor Amazon presented evidence of
MTMscommercial strength. We do not consider it; we turn
toconsideration of conceptual strength.
A marks conceptual strength depends largely on theobviousness of
its connection to the good or service to whichit refers. The less
obvious the connection, the stronger themark, and vice versa. Id.
at 103233. Conceptual strengthis considered along a continuum, and
in this circuit, marksmay be classified as falling into one of five
categories, fromconceptually weak to conceptually strong:
generic,descriptive, suggestive, arbitrary, or fanciful. Id. at
1033. Whether a mark is descriptive or suggestive is a question
offact. Id. at 1034. In an infringement suit, the
distinction[between a descriptive and suggestive mark] is important
. . .because if the mark is suggestive, there is a
strongerlikelihood that a jury could reasonably conclude that
thestrength of the mark factor favors the [plaintiff]. Id. Here,the
district court found that Amazons evidence is persuasivein showing
that the marks are not strong; they are at bestsuggestive, and more
likely descriptive. 926 F.Supp.2d at1139. However, the phrase MTM
Special Ops requires amental leap from the mark to the product,
because the phrasedoes not expressly refer to watches. Fortune
Dynamic,618 F.3d at 1034. Indeed, by evoking elite military
forces
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MULTI TIME MACHINE V. AMAZON.COM16
(Special Ops), the goods suggested by the phrase are aslikely to
be protective gear, binoculars, weapons, or boots asthey are
watches. A jury could find that the mark issuggestive and
conceptually strong because it does notobviously refer to watches,
or that it is merely descriptivebecause the watches are made in a
military style. Either way,the weight of the evidence is a question
of fact, and there isa genuine issue of fact as to the conceptual
strength of themark. As in Fortune Dynamic, a jury should assess
theconceptual strength of [plaintiffs] mark in the first instance.
618 F.3d at 1033.
b. Similarity of the Goods
Like MTM, Amazon sells specialized, military-stylewatches. The
similarity of the goods Amazon is sellingweighs in favor of a
finding of infringement. The districtcourt cited Network Automation
for the proposition thatthough the products were interchangeable .
. . that factwould become less important if advertisements are
clearlylabeled or consumers exercise a high degree of care,
becauserather than being misled, the consumer would merely
beconfronted with choices among similar products. 926F.Supp.2d at
1137 (citing Network Automation, 638 F.3d at1150). The district
court found the same is true in this case;although Amazon and MTM
both sell watches, which areidentical products, this is misleading
only if the consumer isconfused, not if the consumer simply has
clearly markedoptions. Id. This conclusion assumes that
Amazoncustomers will not be confused, and that the options
areclearly marked, which are questions of fact as to which
bothparties submitted evidence. The facts of this case
aredistinguishable from Network Automation, where theclaimant
trademark holders products were displayed
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MULTI TIME MACHINE V. AMAZON.COM 17
alongside the alleged infringers products, thereby
presentingclearly marked options. MTM watches are not displayedat
all on the Amazon website. Whether customers willbelieve the
options on Amazons page, which do not includeMTM products, are
clearly marked as having no associationwith, or approval by, MTM,
and whether they will beconfused, is an open question, and its
answer does not renderthe identity of the goods here moot. Rather,
a jury could findthat it weighs in favor of finding likelihood of
confusion.
On summary judgment, the court may not makeassumptions about the
sophistication of would-be purchasers. Fortune Dynamic, 618 F.3d at
1030. Some members ofMTMs target demographic, men of 2255 years of
age wholike military-styled, rugged products, may not be
frequentinternet shoppers. Such purchasers may incorrectly
believethat [defendant] licensed [the mark] from [plaintiff] . . .
.Other consumers may simply believe that [defendant or
themanufacturers it features] bought out [plaintiff], or that
theyare related companies. Brookfield Commcn, Inc. v. WestCoast
Entmt Corp., 174 F.3d 1036, 1057 (9th Cir. 1999). This is
especially possible here because Amazon touts itselfas offering
Earths Biggest Selection of products, and, asnoted above,
manufacturers sometimes market luxury brandsunder distinct marks.
Even if further internet research couldclarify the matter for a
customer who wondered if MTM hadbeen acquired or had acquired its
competitor watch-makers,it is incorrect to conclude that likelihood
of confusion existsonly when consumers are confused as to the
source of aproduct they actually purchase. It is . . . well
established thatthe Lanham Act protects against many other forms
ofconfusion. Brookfield, 174 F.3d at 1057. NetworkAutomation found
that on the internet, initial interestconfusion is an untenable
theory where sponsored links
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MULTI TIME MACHINE V. AMAZON.COM18
appear on search pages that have partitioned their searchresults
pages so that the advertisements appear in separatelylabeled
sections for sponsored links. 638 F.3d at 1154. Here, the
competitors products are not clearly labeled asbeing BBS results
rather than keyword searches. Thesimilarity of the goods means that
an Amazon customer whosearches for MTM Special Ops and then
investigateswatches manufactured by Luminox or Chase-Durer, even
ifhe later purchases such a watch without any confusion as toits
source, will have been subject to confusion, not merediversion.7
Network Automation, 638 F.3d at 1149. Eventhough his confusion may
be dispelled before an actual saleoccurs, initial interest
confusion impermissibly capitalizes onthe goodwill associated with
a mark and is thereforeactionable trademark infringement. Playboy,
354 F.3d at1025. Therefore, the similarity of goods weighs in favor
ofMTM, and a jury should determine just how much it weighsin favor
of MTM.
c. Defendants intent
A defendants intent to confuse constitutes probativeevidence of
likely confusion. Playboy, 354 F.3d at 1028. MTM submitted evidence
that Amazon vendors andcustomers had complained to Amazon because
they did notunderstand why they received certain non-responsive
searchresults when they searched for products that are not carried
byAmazon. The evidence showed that Amazon employees didnot take
action to address the complaints by explaining to thepublic how the
BBS function works. One Amazon employeenoted that explaining BBS to
the public might draw
7 Amazons evidence that customers do not purchase
competitorswatches after searching MTM SPECIAL OPS is addressed
below.
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MULTI TIME MACHINE V. AMAZON.COM 19
customers and vendors unwanted scrutiny to the matter. Amazon
did not disclose to shoppers how its BBS worked.
As in Playboy, this evidence suggests, at a minimum,that
defendants do nothing to alleviate confusion. . . .Although not
definitive, this factor provides some evidenceof an intent to
confuse on the part of defendants. Playboy,354 F.3d at 1029. From
evidence that Earths mostcustomer-centric company took no action on
thesecomplaints, a jury could infer that Amazon intended toconfuse
its customers. We leave it to a jury to determine, ifAmazon so
intended, how important that intent is, and weturn to two factors
that we think weigh in favor of Amazon.
d. Evidence of Actual Confusion
Where evidence of actual confusion is submitted, it isstrong
support for the likelihood of confusion. NetworkAutomation, 638
F.3d at 1151 (internal quotation marksomitted). But actual
confusion is not necessary to a findingof likelihood of confusion
under the Lanham Act. Indeed,proving actual confusion is difficult
. . . and the courts haveoften discounted such evidence because it
was unclear orinsubstantial. Id. (internal quotation marks,
citation, andbrackets omitted).
MTM did not submit colorable evidence of actualconfusion. MTM
offered its presidents testimony that he hadknowledge of actual
confusion. The district court found thistestimony was too vague to
constitute evidence. Thepresident testified that someone he had met
named Eric said,in reference to Amazons page, its confusing.
Suchtestimony does not suffice to give rise to a genuine issue
offact, even were such hearsay admissible, as the record does
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MULTI TIME MACHINE V. AMAZON.COM20
not provide support for the speculation that Eric was apotential
customer.
Amazon submitted evidence that purports to show that nocustomers
were confused, because customers who searchedfor Luminox were 21
times as likely to purchase a Luminoxwatch as were customers who
searched for MTM SpecialOps. We do not find it surprising that
customers who searchfor an item (Luminox watches) are more likely
to buy thatitem than customers who did not search for it but
searched foranother product (MTM watches). But in the absence
ofevidence of actual confusion, we agree that the factor weighsin
favor of Amazon. However, we are not persuaded that ajury could not
view this purported evidence of no actualconfusion as flawed
because a user researching watchesmight initially be confused about
the availability of MTMwatches online and so not purchase a Luminox
the same day.8 Further, some users did search for MTM Special Ops
andpurchase a competitors watch the same day, which a jurycould
find probative of some confusion.
8 In response to MTMs critique that the data did not fully
account forconsumer behavior, the district court opined that Amazon
persuasivelyresponds that the value of the data is not absolute but
relative; there is noreason to think that those consumers searching
for Luminox would exhibitdifferent behaviors from those searching
for MTM Special Ops. 926F.Supp.2d at 1140. However, the very
relativity of the data makes itsvalue a question for a jury, who
might determine that Luminox customerson Amazon are different from
would-be MTM Special Ops purchasers:Luminox customers make same-day
purchases because the product theysought is available on Amazon.
MTM Special Ops customers may waita few days to buy a Luminox watch
because it is not what they sought, buttheir interest in a Luminox
watch was piqued because they were uncertainwhether or how Luminox
is affiliated with or approved by MTM.
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MULTI TIME MACHINE V. AMAZON.COM 21
e. Degree of Care
As to the degree of care expected of a purchaser, whengoods are
expensive, purchasers can be expected to exercisegreater care,
though confusion may still be likely. NetworkAutomation, 638 F.3d
at 1152. MTMs watches are pricedbetween several hundred dollars to
two thousand dollars. Thedistrict court did not err in finding that
consumers could bepresumed to use a high degree of care in
purchasing suchwatches. However, in light of our determination that
otherfactors give rise to genuine issues of fact, we note that a
jurymay find that Amazon presented evidence that same daysales are
high for Luminox. This could be interpreted, by ajury, as proof
that at least some persons who seek militarywatches are impulse
buyers who do not spend as much timecomparing products as careful
buyers might. If so, the jurymight accord the price of the watches
little weight comparedto the other factors. This factor and its
relative importanceare matters for a jury.
B. Use in Commerce
This court has held that use of a trademark as a searchengine
keyword that triggers the display of a competitorsadvertisement is
a use in commerce under the Lanham Act. Network Automation, 638
F.3d at 114445. Amazoncontends that the user-generated search term
MTM SpecialOps is not a use in commerce within the meaning of
theLanham Act. We hold that the customer-generated use of
atrademark in the retail search context is a use in commerce. As
the district court correctly observed, though NetworkAutomation is
distinguishable because the search engineswere selling the use of
competitors trademarks, Amazonspurpose is not less commercial just
because it is selling
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MULTI TIME MACHINE V. AMAZON.COM22
wares, not advertising space. Therefore, we decline to affirmthe
district court on the alternative ground that Amazons useis not a
use in commerce.
Conclusion
We are by no means certain that MTM will be able toprove
likelihood of confusion under an initial interestconfusion theory,
but we are confident the matter can bedetermined only by resolving
genuine issues of material fact.
REVERSED AND REMANDED.
SILVERMAN, Circuit Judge, dissenting:
Live! From New York! Its Saturday Night! . . . and thescene is
the Olympia Restaurant, Chicago, January, 1978. Dan Aykroyd is
manning the grill, Bill Murray is workingprep, and John Belushi is
up front taking orders. A customer,Jane Curtin, walks in and orders
two cheeseburgers. Belushiyells to the grill: Cheezborger,
cheezborger. Curtin thenorders a Coke. Without looking up, Belushi
replies: NoCoke. Pepsi.
Pause it right there.
Would anyone seriously contend that the diner violatedCokes
trademark by responding to the customers order thatit doesnt carry
Coke, only Pepsi?
Now, fast-forward to the present. A customer goes onlineto
Amazon.com looking for a certain military-style
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MULTI TIME MACHINE V. AMAZON.COM 23
wristwatch specifically the MTM Special Ops marketedand
manufactured by Plaintiff Multi Time Machine, Inc. Thecustomer
types mtm special ops in the search box andpresses enter. Because
Amazon does not sell the MTMSpecial Ops watch, what the search
produces is a list, withphotographs, of several other brands of
military style watchesthat Amazon does carry, specifically
identified by their brandnames Luminox, Chase-Durer, TAWATEC, and
Modus sort of like what happens when you order a Coke, and
areclearly told that they only have Pepsi. The particular
searchresults page at issue is displayed below:
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MULTI TIME MACHINE V. AMAZON.COM24
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MULTI TIME MACHINE V. AMAZON.COM 25
MTM brought suit alleging that Amazons response to asearch for
the MTM Special Ops watch on its website istrademark infringement
in violation of the Lanham Act. MTM contends that Amazons search
results page creates alikelihood of confusion, even though there is
no evidence ofany actual confusion and even though the other brands
areclearly identified by name and each product is displayed witha
photograph. The district court granted summary judgmentin favor of
Amazon.
I would affirm. The core element of trademarkinfringement is
whether the defendants conduct is likely toconfuse customers about
the source of the products. E. & J.Gallo Winery v. Gallo Cattle
Co., 967 F.2d 1280, 1290 (9thCir. 1992). Because Amazons search
results page clearlylabels the name and manufacturer of each
product offered forsale and even includes photographs of the items,
noreasonably prudent consumer accustomed to shopping onlinewould
likely be confused as to the source of the products. Thus, summary
judgment of MTMs trademark claims wasproper.
I.
Although disfavored in trademark infringement cases,summary
judgment may be entered when no genuine issue ofmaterial fact
exists. Id. Indeed, in several trademark cases,we have concluded
that there is no likelihood of confusion asa matter of law, and
affirmed the district courts grant ofsummary judgment in favor of
the defendant. See, e.g., OneIndus., LLC v. Jim ONeal Distrib., 578
F.3d 1154, 116265(9th Cir. 2009); M2 Software, Inc. v. Madacy
Entmt,421 F.3d 1073, 108085 (9th Cir. 2005); Surfvivor Media,Inc.
v. Survivor Prods., 406 F.3d 625, 63134 (9th Cir. 2005).
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MULTI TIME MACHINE V. AMAZON.COM26
To prevail on a claim of trademark infringement under theLanham
Act, a trademark holder must show that thedefendants use of its
trademark is likely to cause confusion,or to cause mistake, or to
deceive. Fortune Dynamic, Inc.v. Victorias Secret Stores Brand
Mgmt., 618 F.3d 1025, 1030(9th Cir. 2010) (quoting 15 U.S.C.
1125(a)(1)-(a)(1)(A)). The test for likelihood of confusion is
whether a reasonablyprudent consumer in the marketplace is likely
to be confusedas to the origin of the good or service bearing one
of themarks. Dreamwerks Prod. Group v. SKG Studio, 142 F.3d1127,
1129 (9th Cir. 1998). The confusion must beprobable, not simply a
possibility. Murray v. Cable NBC,86 F.3d 858, 861 (9th Cir.
1996).
Here, the district court was correct in ruling that there isno
likelihood of confusion. Amazon is responding to acustomers inquiry
about a brand it does not carry by doingno more than stating
clearly (and showing pictures!) of whatbrands it does carry. To
whatever extent the Sleekcraftfactors1 apply in a case such as this
a merchant respondingto a request for a particular brand it does
not sell by offeringother brands clearly identified as such the
undisputedevidence shows that confusion on the part of the
inquiringbuyer is not at all likely. Not only are the other brands
clearlylabeled and accompanied by a photograph, there is noevidence
of actual confusion by anyone.
1 The eight-factor test from our decision in AMF Inc. v.
Sleekcraft Boats,599 F.2d 341, 348-49 (9th Cir. 1979), abrogated in
part on other groundsas recognized in Mattel, Inc. v. Walking
Mountain Prods., 353 F.3d 792(9th Cir. 2003).
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MULTI TIME MACHINE V. AMAZON.COM 27
To analyze likelihood of confusion, we utilize the eight-factor
test set forth in Sleekcraft.2 However, [w]e have longcautioned
that applying the Sleekcraft test is not like countingbeans. One
Indus., 578 F.3d at 1162; see also NetworkAutomation, Inc. v.
Advanced Sys. Concepts, 638 F.3d 1137,1145 (9th Cir. 2011) (The
Sleekcraft factors are intended asan adaptable proxy for consumer
confusion, not a rotechecklist.). Some factors are much more
important thanothers, and the relative importance of each
individual factorwill be case-specific. Brookfield, 174 F.3d at
1054. Moreover, the Sleekcraft factors are not exhaustive and
othervariables may come into play depending on the particularfacts
presented. Network Automation, 638 F.3d at 114546. This is
particularly true in the Internet context. SeeBrookfield, 174 F.3d
at 1054 (We must be acutely aware ofexcessive rigidity when
applying the law in the Internetcontext; emerging technologies
require a flexible approach.). Indeed, in evaluating claims of
trademark infringement incases involving Internet search engines,
we have foundparticularly important an additional factor that is
outside ofthe Sleekcraft test: the labeling and appearance of
theadvertisements and the surrounding context on the
screendisplaying the results page. Network Automation, 638 F.3dat
1154.
In the present case, the eight-factor Sleekcraft test is
notparticularly apt. This is not surprising as the Sleekcraft
test
2 The eight Sleekcraft factors are: 1. strength of the mark; 2.
proximityof the goods; 3. similarity of the marks; 4. evidence of
actual confusion;5. marketing channels used; 6. type of goods and
the degree of care likelyto be exercised by the purchaser; 7.
defendants intent in selecting themark; and 8. likelihood of
expansion of the product lines. 599 F.2d at34849.
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MULTI TIME MACHINE V. AMAZON.COM28
was developed for a different problem i.e., for analyzingwhether
two competing brands marks are sufficiently similarto cause
consumer confusion. See Sleekcraft, 599 F.2d at348. Although the
present case involves brands that competewith MTM, such as Luminox,
Chase-Durer, TAWATEC, andModus, MTM does not contend that the marks
for thesecompeting brands are similar to its trademarks. Rather,
MTMargues that the design of Amazons search results pagecreates a
likelihood of initial interest confusion because whena customer
searches for MTM Special Ops watches onAmazon.com, the search
results page displays the search termused here, mtm special ops
followed by a display ofnumerous watches manufactured by MTMs
competitors andoffered for sale by Amazon, without explicitly
informing thecustomer that Amazon does not carry MTM watches.
Thus, the present case focuses on a different type ofconfusion
than was at issue in Sleekcraft. Here, the confusionis not caused
by the design of the competitors mark, but bythe design of the web
page that is displaying the competingmarks and offering the
competing products for sale. Sleekcraft aside, the ultimate test
for determining likelihoodof confusion is whether a reasonably
prudent consumer inthe marketplace is likely to be confused as to
the origin of thegoods. Dreamwerks, 142 F.3d at 1129. Our case can
beresolved simply by an evaluation of the web page at issue andthe
relevant consumer. Cf. Brookfield, 174 F.3d at 1054 ([I]tis often
possible to reach a conclusion with respect tolikelihood of
confusion after considering only a subset of thefactors.). Indeed,
we have previously noted that [i]n thekeyword advertising context
[i.e., where a user performs asearch on the internet, and based on
the keywords containedin the search, the resulting web page
displays certainadvertisements containing products or services for
sale,] the
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MULTI TIME MACHINE V. AMAZON.COM 29
likelihood of confusion will ultimately turn on what theconsumer
saw on the screen and reasonably believed, giventhe context.
Network Automation, 638 F.3d at 1153. Inother words, the case will
turn on the answers to thefollowing two questions: (1) Who is the
relevant reasonableconsumer?; and (2) What would he reasonably
believe basedon what he saw on the screen?
Turning to the first question, we have explained that[t]he
nature of the goods and the type of consumer is highlyrelevant to
determining the likelihood of confusion in thekeyword advertising
context. Network Automation,638 F.3d at 1152. In evaluating this
factor, we consider thetypical buyer exercising ordinary caution.
Au-TomotiveGold, Inc. v. Volkswagen of Am., Inc., 457 F.3d 1062,
1076(9th Cir. 2006) (quoting Sleekcraft, 599 F.2d at 353).
Confusion is less likely where buyers exercise care andprecision in
their purchases, such as for expensive orsophisticated items. Id.
Moreover, the default degree ofconsumer care is becoming more
heightened as the novelty ofthe Internet evaporates and online
commerce becomescommonplace. Network Automation, 638 F.3d at
1152.
The goods in the present case are expensive. It isundisputed
that the watches at issue sell for several hundreddollars.
Therefore, the relevant consumer in the present caseis a reasonably
prudent consumer accustomed to shoppingonline. Toyota Motor Sales,
U.S.A., Inc. v. Tabari, 610 F.3d1171, 1176 (9th Cir. 2010).
Turning to the second question, as MTM itself asserts,
thelabeling and appearance of the products for sale on Amazonsweb
page is the most important factor in this case. This isbecause we
have previously noted that clear labeling can
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MULTI TIME MACHINE V. AMAZON.COM30
eliminate the likelihood of initial interest confusion in
casesinvolving Internet search terms. See, e.g., Playboy Enters.
v.Netscape Communs. Corp., 354 F.3d 1020, 1030 n.44 (9thCir. 2004)
(explaining that clear labeling might eliminate thelikelihood of
initial interest confusion that exists in thiscase); Network
Automation, 638 F.3d at 1154 (same). Indeed, MTM itself argues: The
common thread of [theNinth Circuits decisions in Brookfield,
Playboy, and NetworkAutomation] is that liability under the Lanham
Act can onlybe avoided as a matter of law where there is clear
labeling toavoid the possibility of confusion including initial
interestconfusion resulting from the use of anothers trademark.
Thus, MTM agrees that summary judgment of its trademarkclaims is
appropriate if there is clear labeling that avoidslikely
confusion.
Here, the products at issue are clearly labeled by Amazonto
avoid any likelihood of initial interest confusion by areasonably
prudent consumer accustomed to online shopping. When a shopper goes
to Amazons website and searches fora product using MTMs trademark
mtm special ops, theresulting page displays several products, all
of which areclearly labeled with the products name and manufacturer
inlarge, bright, bold letters and includes a photograph of theitem.
In fact, the manufacturers name is listed twice. Forexample, the
first result is Luminox Mens 8401 Black OpsWatch by Luminox. The
second result is Chase-DurerMens 246.4BB7-XL-BR Special Forces
1000XL BlackIonic-Plated Underwater Demolition Team Watch
byChase-Durer. Because Amazon clearly labels each of theproducts
for sale by brand name and model numberaccompanied by a photograph
of the item, it is simply bizarreto suppose that a reasonably
prudent consumer accustomed to
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MULTI TIME MACHINE V. AMAZON.COM 31
online shopping would be confused about the source of
thegoods.
MTM argues that initial interest confusion might occurbecause
Amazon lists the search term used here thetrademarked phrase mtm
special ops three times at thetop of the search page. MTM argues
that because Amazonlists the search term mtm special ops at the top
of the page,a consumer might conclude that the products displayed
aretypes of MTM watches. But, a review of Amazons searchresults
page shows that such consumer confusion is highlyunlikely. None of
these products are labeled with the wordMTM or the phrase Special
Ops, let alone the specificphrase MTM Special Ops. Further, some of
the productsare not even watches. The sixth result is a book
entitledSurvive!: The Disaster, Crisis and Emergency Handbookby
Jerry Ahem. The tenth result is a book entitled TheMoses
Expedition: A Novel by Juan Gmez-Jurado. It isperplexing how one
could assume that a book entitled TheMoses Expedition is a type of
MTM watch or is in any wayaffiliated with MTM watches. It is hard
to fathom how areasonably prudent consumer accustomed to shopping
onlinewould view Amazons search results page and conclude thatthe
products offered are MTM watches. Some of theproducts are not even
watches! And the watches that areoffered for sale are clearly
labeled as being manufactured byLuminox, Chase-Durer, TAWATEC, or
Modus not byMTM. It is possible that some dolt somewhere might
beconfused by the search results page. But,
[u]nreasonable,imprudent and inexperienced web-shoppers are not
relevant. Tabari, 610 F.3d at 1176; see also Network Automation,638
F.3d at 1153 ([W]e expect consumers searching forexpensive products
online to be even more sophisticated.).
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MULTI TIME MACHINE V. AMAZON.COM32
The majority hypothesizes, without any evidence tosupport it,
that a reasonable jury could infer that initialinterest confusion
is possible here because consumers mightview these search results
and wonder whether a competitorhas acquired MTM or is otherwise
affiliated with MTM. There is no evidence in the record that
anyone, anywhere, hasever labored under the mistaken impression
that Luminox orthe other brands offered are in any way, shape, or
formaffiliated with MTM. Moreover, to establish likelihood
ofconfusion, MTM must show that confusion is likely, not
justpossible. See Murray, 86 F.3d at 861.
MTM argues that in order to eliminate the likelihood
ofconfusion, Amazon must change its search results page, sothat it
explains to customers that it does not offer MTMwatches for sale
before suggesting alternative watches to thecustomer. No MTM,
Luminox is essentially what MTMsays is required. I disagree. The
search results page makesclear to anyone who can read English that
Amazon onlycarries the brands of watches that are clearly and
explicitlylisted on the web page. The search results page
isunambiguous.
In light of the clear labeling Amazon uses on its searchresults
page, no reasonable trier of fact could conclude thatAmazons search
results page would likely confuse areasonably prudent consumer
accustomed to shopping onlineas to the source of the goods being
offered. See Playboy,354 F.3d at 1030 n.44 (Clear labeling might
eliminate thelikelihood of initial interest confusion that exists
in thiscase.); Network Automation, 638 F.3d at 1154 (same).
Therefore, summary judgment of MTMs trademark claimswas
appropriate.
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MULTI TIME MACHINE V. AMAZON.COM 33
MTM attempts to argue that summary judgment of itsclaims is
inappropriate because there are numerous factualdisputes related to
Amazons search results page. But, to theextent there are any
factual disputes between the parties, noneof them are material to
the analysis. MTM cannot dispute thefact that the watches at issue
all sell for hundreds of dollars. Therefore, as a matter of law,
the relevant consumer would bea reasonably prudent consumer
accustomed to shoppingonline. See Tabari, 610 F.3d at 1176; Network
Automation,638 F.3d at 115253. Further, MTM cannot dispute
thecontents of the web page at issue. A review of Amazonsweb page
shows that each product listed for sale is clearlylabeled with the
products name and manufacturer and aphotograph, and none of the
products are labeled withMTMs mark. Thus, the undisputed facts show
that it ishighly unlikely that a reasonably prudent
consumeraccustomed to shopping online would be confused as to
thesource of the goods offered for sale on Amazons web page.
It is true that likelihood of confusion is often a questionof
fact, but not always. In a case such as this, where a courtcan
conclude that the consumer confusion alleged by thetrademark holder
is highly unlikely by simply reviewing theproduct
listing/advertisement at issue, summary judgment isappropriate. Cf.
M2 Software, 421 F.3d at 1085 (explainingthat summary judgment of a
trademark claim is appropriatewhere the plaintiff has failed to
present sufficient evidenceto permit a rational trier of fact to
find that confusion isprobable, not merely possible). Indeed, in
the similarcontext of evaluating allegations of consumer deception
whendealing with false advertising claims, we have at least
twiceconcluded after a review of the label or advertisement atissue
that there was no likelihood of consumer deception asa matter of
law because no reasonable consumer could have
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MULTI TIME MACHINE V. AMAZON.COM34
been deceived by the label/advertisement at issue in themanner
alleged by the plaintiff. See, e.g., Davis v. HSBCBank, 691 F.3d
1152, 1162 (9th Cir. 2012); Freeman v. Time,Inc., 68 F.3d 285,
28990 (9th Cir. 1995).
II.
In light of Amazons clear labeling of the products itcarries, by
brand name and model, accompanied by aphotograph of the item, no
rational trier of fact could possiblyfind that a reasonably prudent
consumer accustomed to onlineshopping would likely be confused by
the Amazon searchresults. I would hold that the district court
correctly grantedsummary judgment in favor of Amazon, or as John
Belushimight have put it, No reversal. Affirm.