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Losing Interest in Initial Interest Confusion

The recent decision by the Ninth Circuit in MultiTime Machine, Inc. v. Amazon.com, Inc. could spell the beginning of the end of “initial interest confusion” as a cause of action in internet commerce cases. In this particular case, Amazon did not sell the watches made by MultiTime Machine (MTM), but if someone searched Amazon for, say, “MTM Special Ops” (which is an expensive military-style watch made by MTM), Amazon returned a list of other brands of military-style watches. MTM sued Amazon claiming likelihood of confusion, specifically initial interest confusion.

The district court dismissed the case on summary judgment and MTM appealed. The Ninth Circuit decision affirming the district court decision clearly articulated a rationale for rejecting the claim of “initial interest confusion.” The court held that the relevant consumer is a “reasonably prudent consumer shopping online...Unreasonable, imprudent and inexperienced web-shoppers are not relevant.” It held that “no reasonably prudent consumer accustomed to shopping online could be deceived, even initially.”

An important factor in the court’s decision was Amazon’s “clear labeling” of the results and the competing products shown. None were identified as being from MTM. “The search results page makes clear to anyone who can read English that Amazon carries only the brands that are clearly and explicitly listed on the web page.” The court’s decision indicates the belief that online buying is now so common that consumers have learned that entering a trademark as a search term will not necessarily return results for only that brand.

This recognition by the courts of the prevalence of internet shopping (and by extension, information gathering prior to shopping in brick-and-mortar stores) could have implications far beyond this specific case. In particular, issues of display “proximity” which have been used to attack certain survey formats may now be moot if internet commerce brings everything together in the same “store.”

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