Supreme Court Declines to Hear Review of Ninth Circuit Decision Holding Amazon Did Not Infringe Trademark by Presenting Other Products as Search Results for Trademark

4 min

On February 29, 2016, the Supreme Court declined to review a Ninth Circuit decision holding that there was no likelihood of confusion, and therefore no trademark infringement, where offered consumers searching for products under a federally registered trademark results for other, clearly labeled, non-trademarked watches.

The case began when Plaintiff Multi Time Machine, Inc. (MTM), owner, manufacturer, and marketer of the "MTM Special Ops" brand of watches, filed suit against based on its federally registered trademark for timepieces. MTM alleged that it does not sell its high-end military-style watches through According to MTM, it does not sell the watches to, nor does it authorize distributors to sell through However, according to the complaint, if a consumer searches the term "MTM Special Ops" on, the site directs the consumer to a list, with photographs of products, of several other brands of military-style watches that does carry. Each product is specifically identified by its brand name.

MTM sued for trademark infringement, seeking injunctive relief to bar from using its trademarks in a particular manner when customers search for MTM's products on MTM alleged that offering these particular search results in response to consumer searches for the mark constituted trademark infringement in violation of the Lanham Act, and created a likelihood of confusion between MTM Special Ops watches and the other non-MTM military-style watches listed in's search results page. However, MTM alleged that does not explicitly inform the customer that it does not carry the MTM watches. In contrast, according to MTM,'s competitors and indicate that no product search results match the "MTM Special Ops" search query before listing competitors' products.

The Ninth Circuit initially agreed with MTM that a jury could find that had created a likelihood of confusion, reversing the district court's grant of summary judgment in favor of, based on the theory of initial interest confusion. Multi Time Mach., Inc. v., Inc., 792 F.3d 1070 (July 6, 2015). Months later, the same panel, in a 2-1 decision, agreed to's request for a rehearing and reversed itself, holding now that, where's search results page "clearly labels the name and manufacturer of each product offered for sale and even includes photographs of the items, no reasonably prudent consumer accustomed to shopping online would likely be confused as to the source of the products." Multi Time Mach., Inc. v., Inc., 804 F.3d 930 (Oct. 21, 2015).

The court noted that's search results were "clearly labeled" with the name and manufacturer "in large, bright, bold letters" and offered a photograph of the competitor's product. None of the watches in the search results were labeled "MTM" or "Special Ops," or with the word mark "MTM SPECIAL OPS." Tellingly, the search results also included products that were not watches, including books.

Based on these and other facts, the panel majority affirmed the lower court grant of summary judgment in favor of, ruling that "no reasonably prudent consumer accustomed to shopping online would view Amazon's search results page and conclude that the products offered are MTM watches," especially considering the fact that the goods in this case were expensive watches that sold for several hundred dollars. Accordingly, the court found that the relevant consumer was likely to exercise care and precision in making purchases, such that the potential confusion of the "unreasonable, imprudent and inexperienced web-shoppers [is] not relevant."

The Supreme Court denied MTM's request for writ of certiorari, leaving in place a decision more in line with the majority of decisions concerning initial interest confusion and search engine optimization terms. While trademark owners have repeatedly sued search engines, as well as competitors that buy search ads on word marks, alleging that purchasing their trademark as a search "keyword" violated the Lanham Act, these suits have largely been dismissed.