2015 was the 40th anniversary for the NBC comedy series, Saturday Night Live (SNL). After 40 years, a television show is bound to have a cultural impact. And one of the series’ most well known sketches involves Olympia Restaurant, where customers keep asking for Coke, but are repeatedly told, “No Coke, Pepsi.”

It is doubtful even the most ardent lovers of SNL would have expected that the show would have an impact on trademark jurisprudence. Yet in Multi Time Mach., Inc. v. Amazon. com the Ninth Circuit is considering whether to adopt a “No Coke, Pepsi” rule in the context of online shopping.

The case involves a trademark infringement claim brought by a watch manufacturer. The district court granted summary judgment for Amazon.com, finding that there was no likelihood of confusion as a matter of law. 926 F. Supp. 2d 1130 (C.D. Cal. 2013). The oral argument before the Ninth Circuit can be viewed here, with an audio only version available here.

The Ninth Circuit follows the Sleekcraft factors in determining whether a plaintiff has established a likelihood of confusion. However, in cases of internet advertising, and in particular, use of trademarks as a search term, the Ninth Circuit utilizes a modified approach first adopted in Network Automation, Inc. v. Advanced Sys. Concepts, Inc., 638 F.3d 1137 (9th Cir. 2011). In that decision, the Ninth Circuit added a new factor for internet advertising, namely, “the appearance of the advertisements and their surrounding context on search engine results.”

The plaintiff argued that Amazon’s display of search results created a likelihood of confusion as to whether the watches displayed as a result were somehow connected with Multi-Time Machine (MTM). Amazon did not carry MTM watches. Yet when entering a search, Amazon’s results did not say “no matches found.” Instead, Amazon uses an algorithm which displays products that internet users may be likely to purchase based on past consumer behavior (i.e., they searched for MTM and later purchased a Casio watch). The search results were not labeled as “sponsored ads” or “other items you might like.” However, each of the results clearly identified the model and brand of each product.

The plaintiff argued that this was insufficient. Instead, it reasoned that Amazon should have stated “No MTM, Casio, Luminox, etc.” Because the MTM brand still appeared in the search engine form at the top of the page, MTM claimed that there was a factual dispute as to whether an internet user might mistakenly assume that the results were sub-brands of MTM, or were connected in some other way to MTM.

In response, Amazon contended that under Ninth Circuit precedent, the relevant consumer was a “reasonably prudent consumer accustomed to shopping online.” Toyota Motor Sales, U.S.A., Inc. v Tabari, 610 F3d 1171 (9th Cir 2010). Each search result clearly identified the manufacturer of the watch and, as a result, internet shoppers could not reasonably assume a connection with MTM merely because it appeared in the search bar.

Amazon could have its search screen state whether a user’s search returned any exact results. But from a practical perspective, what would this look like? If I search for Take 5 on Amazon, must amazon inform me that it does not sell Take 5 candy bars, even if I’m actually looking for a Dave Brubeck vinyl? And what if Amazon actually had the MTM watch, should it have been required to display only MTM watches? Or, what if a consumer is actually using the mark as comparative advertising, similar to walking into retail store and asking whether they have something like a Calvin Klein jacket?

The degree of care and reasonable expectations of internet shoppers continues to evolve. In my own internet shopping, I’m easily able to discern between Amazon search results which include competitors’ products. But maybe I’m more discerning than others in my online shopping. No decision has been issued in the case, though, so MTM will just have to wait and see whether the Ninth Circuit’s response will be “No Remand, Affirmed.”