Judicial Notice of Internet Evidence — Amazon.com Website

Multi Time Machine, Inc. v. Amazon.com, Inc., 792 F.3d 1070 (9th Cir. 2015):

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 [**3]  Ops watches are high-end, military style watches manufactured by Multi-Time Machines, Inc. ("MTM"). Online retailer Amazon.com ("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."1  [***1493]  What the  [*1072]  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.

1   Our recitation of the facts, and our decision, are based on the evidence submitted below. However, we may take judicial notice of facts which [**4]  are publicly available and "not subject to reasonable dispute in that [they are] . . . capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned." See Daniels-Hall v. Nat'l Ed. Ass'n, 629 F.3d 992, 998-999 (9th Cir. 2010) (citing Fed. R. Ev. 201). Amazon's website is such a source. As of June 26, 2015, Amazon hosts a static webpage which states that "At Amazon.com, we not only have a large collection of mtm special ops watch products [which, of course, is flatly untrue], but also a comprehensive set of reviews from our customers. Below we've selected a subset of mtm special ops watch products and the corresponding reviews to help you do better research, and choose the product that best suits your needs." Amazon, http://www.amazon.com/gp/feature.html?ie=UTF8&docId=1001909381 . As of the same date, when an Amazon shopper searches "mtm special ops," under the search query playback he will see "9 results for 'mtm special ops.'" Amazon, http://www.amazon.com/s/ref=nb_sb_noss_2?url=search-alias%3Daps&field-keywords=mtm+special+ops . Though unnecessary to our result, we think that a jury might find that these pages provide insight as to defendants' intent to confuse (p. 18-19, infra) and thus give rise to an even greater likelihood of confusion than the earlier format used by Amazon.

MTM asserts the shopper might be confused into thinking a relationship exists between Luminox [**5]  and MTM. As a result of this initial confusion, MTM asserts she might look into 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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