Kimble v. Marvel Entertainment, LLC

Multi Time Machine v.

We are called upon to determine whether the operation of a retailer’s website infringes a trademark because of the manner in which it responds to a shopper’s search request for the trademarked goods. What the website’s response states, together with what its response does not state, determines whether its response is likely to cause confusion. If confusion results from the website’s response, there may be trademark infringement.

MTM Special Ops watches are high-end, military style watches manufactured by Multi-Time Machines, Inc. (“MTM”). Online retailer (“Amazon”) does not carry MTM watches. If her brother mentioned MTM Special Ops watches, a frequent Amazon shopper might try to purchase one for him through Amazon. If she were to enter “MTM Special Ops” as her search request on the Amazon website, Amazon would respond with its page showing MTM Special Ops (1) in the search field (2) “MTM Specials Ops” again—in quotation marks—immediately below the search field and (3) yet again in the phrase “Related Searches: MTM special ops watch,” all before stating “Showing 10 Results.” What the website’s response will not state is that Amazon does not carry MTM products. Rather, below the search field, and below the second and third mentions of “MTM Special Ops” noted above, the site will display aesthetically similar, multi-function watches manufactured by MTM’s competitors. The shopper will see that Luminox and Chase-Durer watches are offered for sale, in response to her MTM query.

MTM asserts the shopper might be confused into thinking a relationship exists between Luminox and MTM. As a result buying a Luminox watch, rather than junk the quest altogether and seek to buy an MTM watch elsewhere. MTM asserts that Amazon’s use of MTM’s trademarked name is likely to confuse buyers, who may ultimately buy a competitor’s goods.

The district court found Amazon’s use of MTM’s trademark created no likelihood of confusion as a matter of law. But we think a jury could find that Amazon has created a likelihood of confusion. We therefore reverse the district court’s grant of summary judgment in favor of Amazon.

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