Split Ninth Circuit Panel Rejuvenates Doctrine of Initial Interest Confusion
Imagine you are driving to Flagstaff for the weekend and, as you approach Camp Verde, you really could go for a McDonald’s hamburger. You see a McDonald’s sign from the highway, take the exit, and learn that the sign actually directs you to a Burger King. “Oh well,” you think, “I guess I’ll take Burger King instead.” You knew you weren’t getting McDonald’s when you made the purchase. But were you the victim of trademark infringement nonetheless, since you thought you were getting McDonald’s when you took the exit, and wouldn’t have bought Burger King absent that initial confusion?
Or imagine you are shopping at Saks, looking for a particular pair of Jimmy Choo shoes. A sign next to the Jimmy Choo section directs you to the adjacent Manolo Blahnik section. Upon inspection, you decide you prefer the Manolos, and buy them. Could anyone reasonably contend wrongful confusion?
The Ninth Circuit has supplied the inspiration for these vignettes in cases such as Brookfield Communications v. West Coast Entertainment (1999), Playboy v. Netscape (2004), and Network Automation v. Advanced System Concepts (2011), as that court has considered similar questions in the internet context. And, as the court has answered those questions, the initial interest confusion doctrine’s force has ebbed and flowed.
Now, in Multi Time Machine v. Amazon.com, we see it flow. A searcher for a Multi Time Machine wristwatch on Amazon is supplied with search results that offer watches from other suppliers, but do not make clear that Amazon does not carry MTM watches at all. In a 2-1 decision, the Ninth Circuit held that, on these facts, MTM asserted a strong enough case of initial interest confusion to survive summary judgment. The majority perceived a sufficient prospect that a potential watch purchaser might be adversely affected by Amazon’s commercial presentation — including multiple expressions of “MTM” accompanying the non-MTM search results — even if the customer ultimately understands, upon making a purchase, that he or she is not buying an MTM watch. The dissent would have found the latter fact dispositive, and affirmed summary judgment in Amazon’s favor.