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Patrick J. Concannon, a partner in Nutter's Intellectual Property Department, was quoted by World Trademark Review in “Ninth Circuit reverses itself in Amazon.com v Multi Time Machine.” The article discusses how the U.S. Court of Appeals for the Ninth Circuit reversed its own decision in Multi Time Machine Inc. v Amazon.com Inc., and upheld the district court’s grant of summary judgment in Amazon’s favor. The Ninth Circuit reversed the district court’s grant of summary judgment in July in a trademark infringement action filed by Multi Time Machine, a manufacturer of high-end watches, against online retailer Amazon, holding that a reasonable jury could find that Amazon had created a likelihood of consumer confusion relating to the way in which it presented its product search results. The court withdrew the decision in October, filing a superseding opinion upholding the district court’s grant of summary judgment in favor of Amazon, and a two-judge majority concluded that Amazon’s search results for competing products were labeled clearly and therefore reasonably prudent consumers accustomed to shopping online would not be confused as to the source of the goods.

Pat noted, “The court acknowledged the controversy surrounding the ‘initial interest confusion’ doctrine within a footnote in the decision, but pointed out that the doctrine was not at issue on appeal and that, from a procedural standpoint, a three-judge panel could not overrule earlier precedential decisions favoring the application of the doctrine. Nonetheless, the court’s vacating and reversing its earlier decision grounded in that doctrine might signal trouble for the viability of the doctrine. The decision is also noteworthy because most infringement decisions concerning the use of others’ trademarks as keywords to date have addressed the practice in the search engine context, but this addresses the practice within a retailer website.”