As Reuters reports, The argument MTM is making isn't that Amazon is simply offering alternatives to its wares -- it's that there's no indication that the site doesn't sell MTM products at all. Try it yourself: go to amazon.com, type in a search for "MTM watch," and see what comes up. We're getting 51 hits for the term, none of which are actually timepieces made by the company. Because of this, the Court of Appeals says "a jury could find that Amazon has created a likelihood of confusion."
The counter to this argument is that, while Amazon doesn't specifically say it doesn't sell MTM's gear, it's definitely not saying that any of the products on the list are made by the company. Indeed, the first page of results for the "MTM watch" search are clearly watches made by other companies such as Casio, Suunto, and Luminox. That's why the Court of Appeals decision was split: the dissenting voice argued that "no reasonably prudent consumer accustomed to shopping online would likely be confused as to the source of the products."
A search of Amazon UK for "lush," lightly edited for clarity.
This case isn't the first of its type -- or even the first for the retailer. In the UK, cosmetics company Lush pursued Amazon for exactly the same thing: using searches for "Lush" to sell cosmetics not made by the company. Although it fought tooth and nail, Amazon eventually relented after losing the case. Any search for "Lush" on Amazon UK now brings up a nice clear notice saying "We don't sell Lush cosmetics," followed by the regular search results. Although trademark laws obviously differ between the UK and US, MTM at least has a ready-made example it can show a jury of what search results could look like.
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