amazon.com

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

MULTI TIME MACHINE, INC., No. 13-55575 Plaintiff-Appellant, D.C. No. v. 2:11-cv-09076-

DDP-MAN

AMAZON.COM, INC.; AMAZON

SERVICES, LLC,

Defendants-Appellees. OPINION

Appeal from the United States District Court for the Central District of California Dean D. Pregerson, District Judge, Presiding

Argued and Submitted April 9, 2015—Pasadena, California

Filed July 6, 2015

Before: Barry G. Silverman and Carlos T. Bea, Circuit Judges 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. SUMMARY**

Trademark

The panel reversed the district court’s summary judgment in a trademark infringement action under the Lanham Act against online retailer Amazon.com.

Multi Time Machine, Inc., manufacturer of MTM Special Ops watches, alleged that Amazon’s website infringed its trademark because of the manner in which the website…

Opinion by Judge BEA; Dissent by Judge SILVERMAN.

OPINION

We are called upon to determine whether the operation of a retailer’s website infringes a trademark because of the manner in which it responds to a shopper’s search request for the trademarked goods. What the website’s response states, together with what its response does not state, determines whether its response is likely to cause confusion. If confusion results from the website’s response, there may be trademark infringement.

MTM Special Ops watches are high-end, military style watches manufactured by Multi-Time Machines, Inc. (“MTM”). Online retailerAmazon.com (“Amazon”) does not carry MTM watches. If her brother mentioned MTM Special Ops watches, a frequent Amazon shopper might try to purchase one for him through Amazon. If she were to enter “MTM Special Ops” as her search request on the Amazon website, Amazon would respond with its page showing MTM Special Ops (1) in the search field (2) “MTM Specials Ops” again — in quotation marks' — immediately below the search field and (3) yet again in the phrase “Related Searches: MTM special ops watch,” all before stating “Showing 10 Results.” 1 What the *1072 website’s…

dissenting:

Live! From New York! It’s Saturday Night! ... and the scene is the Olympia Restaurant, Chicago, January, 1978. Dan Aykroyd is manning the grill, Bill Murray is working prep, and John Belushi is up front taking orders. A customer, Jane Curtin, walks in and orders two cheeseburgers. Belushi yells to the grill: “Cheez-borger, cheezborger.” Curtin then orders a Coke. Without looking up, Belushi replies: “No Coke. Pepsi.”

Pause it right there.

*1081 Would anyone seriously contend that the diner violated Coke’s trademark by responding to the customer’s order that it doesn’t carry Coke, only Pepsi?

Now, fast-forward to the present. A customer goes online to Amazon.com looking for a certain military-style wristwatch — specifically the “MTM Special Ops” — marketed and manufactured by Plaintiff Multi Time Machine, Inc. The customer types “mtm special ops” in the search box and presses “enter.” Because Amazon does not sell the MTM Special Ops watch, what the search produces is a list, with photographs, of several other brands of military style watches that Amazon does carry, specifically identified by their brand names — Lummox, Chase-Durer, TAWATEC, and Modus — sort of like…