No Amazon Search Results Trial After All


     (CN) – The Ninth Circuit changed its mind Wednesday on a watchmaker’s case against Amazon, saying the issue need not go to a jury.
     Multi Time Machine brought the case at issue, claiming that Amazon infringes on its trademark in the way it shows search results to customers shopping for watches.
     Since Amazon is not an authorized distributor of the military-style “Special Ops” watches that Multi Time Machine makes, Amazon instead gives its users product listings for similar products from MTM’s competitors.
     The search results page also includes “sponsored links” to both MTM’s website and other online retailers.
     A federal judge found for Amazon against MTM’s trademark-infringement claims, but a divided three-judge panel on the Ninth Circuit reversed over the summer, saying a jury could find that Amazon has created a “likelihood of confusion.”
     The Pasadena, Calif.-based federal appeals court withdrew this ruling and issued a replacement opinion Wednesday, this time affirming summary judgment for Amazon.
     Judge Carlos Bea wrote the majority opinion in July, joined by U.S. District Gordon Quist, sitting by designation from Grand Rapids, Mich. Judge Barry Silverman dissented.
     Amazon demanded a panel rehearing or a rehearing en banc after that decision.
     The court noted Wednesday that Silverman and Quist wanted a panel rehearing, but Bea did not.
     In the opinion, which replaces the July reversal, Quist sided with Silverman, affirming summary judgment for Amazon.
     “Because Amazon’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,” Silverman wrote for the majority. “Thus, summary judgment of MTM’s trademark claims was proper.”
     This time, Judge Bea wrote the dissent.
     Bea noted that some of Amazon’s competitors have a different way of handling searches for watches it doesn’t carry.
     Overstock.com “would respond ‘Sorry, your search: “mtm special ops” returned no results.’ Similarly, at Buy.com, [a shopper] would be informed ‘0 results found. Sorry. Your search for mtm special ops did not return an exact match. Please try your search again.'”
     “Things are a little different over at ‘Earth’s most customer-centric company,'” Bea wrote.
     Amazon would proclaim 10 results, using MTM’s name in three different places on the page, according to the dissent.
     “What the website’s response will not state is the truth recognized by its competitors: that Amazon does not carry MTM products any more than do Overstock.com or Buy.com,” Bea wrote. “Rather, below the search field, and below the second and third mentions of ‘MTM Special Ops’ noted above, the site will display aesthetically similar, multi-function watches manufactured by MTM’s competitors.”
     Coca-Cola and Pepsi figure into both the lead opinion and the dissent, as they did in July.
     Writing for the majority, Silverman said Amazon’s “search results page is unambiguous – not unlike when someone walks into a diner, asks for a Coke, and is told ‘No Coke. Pepsi.'”
     The brusque quotation is a send-up to a “Saturday Night Live” skit Silverman mentioned more explicitly in the July dissent.
     Back in 1978, John Belushi played a waiter who responds to a customer’s request for Coca-Cola by saying, “No Coke. Pepsi.”
     Bea found the likelihood of confusion with the watches much higher, however, than with soft drinks.
     “No shopper would think that Pepsi was simply a higher end version of Coke, or that Pepsi had acquired Coke’s secret recipe and started selling it under the Pepsi mark,” Bea wrote.
     Bea called it “troubling” that his colleagues have ignored the role of the jury. “Summary judgment law is an aid to judicial economy, but it can be so only to the extent that it comports with the Seventh Amendment,” Bea wrote. “Were we to reverse and remand, MTM might well lose. The likelihood of that outcome is irrelevant to the question whether there is a genuine issue of fact. I respectfully dissent.”
     The ruling notes that MTM and Amazon “may file additional petitions for panel rehearing or rehearing en banc.”

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