Saturday, December 12, 2015

Internet Product Listing Infringing on Trademark

Internet product listing was argued to be infringing on the trademark of a watch manufacturer.  The watch manufacturer argued that it did not sell its watches to Amazon for resale nor did it authorize resale through the online retailer. The plaintiff in this case, Multi Time Machine (MTM), argued that the online retailer, Amazon was creating customer confusion.  It further elaborated that the search result format would confuse the potential customers.

Online retailer, Amazon, was sued for trademark infringement because it argued that Amazon was placing the MTM product online in a manner for when customer would search for their product watches.

The record showed that Amazon would display an image list with product names under a certain class of product.  By clicking on the image, the potential customer would be directed to the product page with the customers search term request remaining active in the search box.  The court noted that Amazon did not disclose to the potential customer that it did not carry the MTM product.  Evidence was introduced demonstrating that defendant's competing online retailers did disclose that they did not carry the plaintiff’s product. Question was posed as to why the defendant did not disclose it.

As the court weighed the evidence and expert testimony to determine the extent of potential confusion, it examined ‘initial interest confusion’ and not necessarily how customers purchase.  The court reasoned that initial interest confusion in and of itself is a trademark infringement in the goodwill associated with the plaintiff’s mark.  The online retailer would then benefit from the value and reputation of the plaintiff’s product through the effect of search results being ‘ambiguous, misleading, and confusing.’

The court also weighed into the relative strength of the plaintiff’s mark of its product.  In that analysis, coupled with the assessment of factors leading to the likelihood of confusion, the 9th Circuit on appeal reasoned that a jury could find the likelihood of confusion due to the fact that the plaintiff and defendant sell military-style watches.  More importantly, it concluded that that the jury would find that the defendant could confuse the potential customers. Multi Time Machine, Inc. v., Inc. Case No. 13-55575 (9th Cir. July 6, 2015)
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