Are you unaware of the difference between search engine searches and the search results? Do you believe that a search engine can read your mind and return exactly (and only) the results you expect to receive? Is this your first time using the internet? Good news! If you answered yes to these questions, the Ninth Circuit’s recent decision in Multi Time Machine v. Amazon, Inc. is made just for you. But on behalf of the remaining 98% of the public, can I just ask one question: really?

If you’re unfamiliar with the facts, we discussed the (then) soon-to-be-decided decision here a few weeks ago (links to oral argument included). Eric Goldman also had a nice article on Monday. The short summary is this:

  • MTM Special Ops is a brand of military style watches;
  • Amazon does not sell MTM Special Ops watches;
  • If an internet user searches Amazon with the phrase “MTM Special Ops,” the search algorithm will return a handful of products which, based on past searches/purchases, are related to MTM Special Ops watches, all clearly labeled as “by Casio,” “by Luminox,” etc.;
  • MTM sued, claiming that consumers would be confused by the search results, either being confused as to the source of the goods or suffering from initial interest confusion; and
  • The district court granted summary judgment to

In a 2-1 vote with one judge dissenting, the Ninth Circuit reversed (decision here). The court essentially held that in order to avoid initial interest confusion, Amazon (and other online retailers) must state precisely whether a particular search returned any exact matches. The kindest thing that can be said about this decision is that the Court really appreciates the role of a jury. But kindness aside, I’m still stuck wondering, really?

The court identifies the use of the plaintiff’s marks that is at issue here. They appear in the search engine field (the blank form). The exact search terms appear in quotations below the search field. And then there is another line which states: “Related Searches: mtm special ops watch.” Really? That’s the issue? The user is the one who entered the search term in the blank field. That blank field is editable in case the user didn’t find they wanted and, in case they choose to edit, Amazon includes the search terms below in quotations for the ease of the user. the “Related Searches” is clearly labelled, too. Is this confusing to anyone out there?

MTM had provided an expert report that stated that the search results are ambiguous, misleading, and confusing. The Ninth Circuit found that “a jury could infer that users who are confused by the search results are confused as to why MTM products are not listed. Even assuming this inference is warranted, it establishes that customers were not confused as to the source of the goods that appeared in the search results. They recognized that the search results were for different brands, not for MTM Special Ops.

There was also evidence that Amazon’s vendors and customers had complained to Amazon because “they did not understand why they received certain non-responsive search results when they searched for products that are not carried by Amazon.” Again, the evidence confirms that customers were not in fact confused by labeling of the search results. They were annoyed as to why other brands were coming up and confused as to the algorithm behind the search engine, but the court’s characterization suggests that consumers were able to easily confirm that the search results were not related to MTM Special Ops.

The court acknowledges that consumers are not likely to be confused once they visit the product detail page. It is unclear to me though what additional information is available on the product detail page that is not available in the search results. Each search result is clearly labeled as “Brand, Item number by Brand.” For example, Luminox Men’s 8401 Black Ops Watch by Luminox or Chase-Durer Men’s 246, 4BB7 Special Forces Black Watch by Chase-Durer.

The court appears to conflate consumer confusion regarding the marks with consumer confusion as to how search engines work. A search engine is not a personal assistant. A search engine is a functional tool used to index and access relevant information and reduce search time and costs. A user can, if they wish, access Amazon like a more traditional store: Shop By Department, Clothing and Jewelry Department, Watches, and then can click “Refine by Brand.” But that’s a lot of work. Instead, a search engine provides a quick access point to gather the most relevant options, some of which may not be exactly what the user was seeking. For example, the MTM Special Ops searches returned two fiction books. Which are clearly not watches and are clearly not MTM Special Ops brand books.

These same facts in a brick and mortar store could not support a reasonable claim of confusion. Imagine walking into Wal-Mart, Target, or any other large retailer and asking the very first person where the MTM Special Ops watches are. They’ll likely say: “Well, our watches are over there.” If you’re lucky, they may even walk you there and point at the watches. But they’re not likely to affirmatively state “We don’t have MTM Special Ops” watches. In my experience, it is usually “If we have them, they’d be in this aisle.” If I walked out with a Casio watch, would anyone really consider that to be trademark infringement?

Practically speaking, this is a simple fix for Amazon. If a search does not match up with a specific product, then it can state “There were no exact matches for the search, but the following results may be of interest.” The court frequently points out that does exactly that. But if the same type of inquiry in a non-internet store isn’t actionable, why should Amazon be potentially liable?

Perhaps the issue is simply that “initial interest confusion” needs to be discarded, at least with respect to search engine/keyword cases. As the Ninth Circuit reasoned in Toyota Motor Sales v. Tabari, 610 F.3d 1171 (9th Cir. 2010):

[I]n the age of FIOS, cable modems, DSL and T1 lines, reasonable, prudent and experienced internet consumers are accustomed to such exploration by trial and error. They skip from site to site, ready to hit the back button whenever they’re not satisfied with a site’s contents. They fully expect to find some sites that aren’t what they imagine based on a glance at the domain name or search engine summary. Outside the special case of . . . domains that actively claim affiliation with the trademark holder, consumers don’t form any firm expectations about the sponsorship of a website until they’ve seen the landing page—if then.

The Multi Time Machine court discarded this argument (and Network Automation) on the grounds that this case involved summary judgment, rather than a motion for preliminary injunction. But this reasoning doesn’t involve weight of the evidence. It appears to be more of a legal conclusion regarding customer sophistication on the internet, which is directly relevant to the facts of Multi Time Machine.

Personally, I find Amazon’s search features very helpful. It is a convenient way to reduce search time, compare products, and find other potential goods for purchase. Do we really want to inhibit these advantages simply because a few users who rarely shop on the internet might be confused by the search results, even though they aren’t confused before they make an actual purchase? Really?