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Multi Time Mach., Inc. v.

United States District Court, C.D. California

February 20, 2013

AMAZON.COM, and Amazon Services LLC, Defendant.

Page 1131

MTM Special Ops.

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Jeffrey R. Cohen, Millen White Zelano & Branigan PC, Arlington, VA, Jennifer Joanne McGrath, Kinsella Weitzman Iser Kump and Aldisert LLP, Santa Monica, CA, Michael S. Culver, Millen White Zelano and Branigan PC, Alexandria, VA, for Plaintiff.

Allan E. Anderson, Timothy L. Skelton, Ropers Majeski Kohn and Bentley, Los Angeles, CA, Kathryn A. Feiereisel, Marc C. Levy, Faegre Baker Daniels LLP, Denver, CO, for Defendant.


[Dkt. Nos. 35 & 45]

DEAN D. PREGERSON, District Judge.

Presently before the court is Defendants, Inc. and Amazon Services LLC (collectively " Amazon" )'s Motion for Summary Judgment.[1] Having considered the parties' submissions and heard oral argument, the court adopts the following order.


The following facts are not disputed or confidential.

Multi Time Machine, Inc. (" MTM" ) sells military style watches under the brand names " MTM Special Ops" and " MTM Military Ops." (In Support of Amazon's Motion for Summary Judgment, Decl. of Marc Levy [" Levy Decl." ], Exh. A 21:5-8.) MTM sells its watches through its website and through a limited number of authorized distributors, but not through Amazon. ( Id. at 39:10-40:5, 48:9-15). In addition, MTM does not authorize its distributors to sell its watches on Amazon. ( Id. at 49:24-51:11.)

Amazon is an online retailer that sells millions of products directly to consumers and that hosts third-party sellers. (In Support of Amazon's Motion for Summary Judgment, Decl. of Daniel Rose [" Rose Decl." ] ¶ 2.) Amazon's search function attempts to retrieve products that consumers are likely to be interested in purchasing. ( Id. at ¶ 3.) To do so, its search function does not only provide results that match the actual words used by the consumer in his or her query. ( Id. at ¶ 7.) Like Google and Bing, Amazon's search engine employs search technologies that rely on consumer behavior. ( Id. at ¶¶ 4, 7). These technologies allow Amazon to retrieve results that do not include the search term. ( Id. at ¶ 7.)

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In response to a consumer's search, Amazon provides the consumer a list of products on a search results page. (In Support of Amazon's Motion for Summary Judgment, Decl. of Paul Jaye [" Jaye Decl." ] ¶ 6, Exh. A.) For each product, Amazon generates a " product listing," which primarily consists of an image of the product and a title identifying the product. ( Id. ) For example, when a consumer searches for " mtm special ops," Amazon's search function provides ten results, each with its own product listing. ( Id. ) Since MTM does not sell its watches on Amazon or authorize its distributors to sell its watches on Amazon, its watches do not appear among the product listings for that search. ( Id. ) Instead, all of the watches retrieved by Amazon belong to MTM's competitors, in particular Luminox and Chase-Durer. ( Id. at Exh. A; Levy Decl., Exh. A at 59:25-60:5.)

A. Search Results Page

On the search results page, the search query— " mtm special ops" — appears in two locations: in the search query box and directly below the search query box in what is termed the " breadcrumb." (Jaye Decl. at ¶ 7.) The breadcrumb displays the original query in quotation marks to provide a trail for the consumer to follow back to the original search. ( Id. ) Directly below the breadcrumb, Amazon provides " Related Searches" in case consumers are unsatisfied with the results from their original search. ( Id. at ¶ 8, Exh. A.) For example, after searching for the term " mtm special ops," Amazon's search results page suggests the related search " mtm special ops watch." ( Id. at Exh. A.)

Accordingly, after searching for " mtm special ops" in Amazon's search query box, those words appear in three locations: (1) in the search query box, (2) in the breadcrumb below that box, and (3) in the related search below the breadcrumb. ( Id. ) A gray bar with the heading " Showing 10 Results" separates those three locations from the product listings below. ( Id. at ¶ 6.)

Below the product listings, the " MTM" brand also appears in an advertisement under the heading " Sponsored Links." ( Id. at Exh. A; Levy Decl., Exh. A at 64:6-20.) The advertisement includes a hyperlink titled " Tactical Watches By MTM," the description " MTM Tactical Watches Worn By Military, Police, Sportsmen," and another hyperlink to MTM's website: www. special opswatch. com/. (Jaye Decl. at Exh. A.)

B. Product Detail Page

Consumers cannot purchase products from Amazon's search results page. ( Id. at ¶ 9.) To purchase a product, consumers first must navigate to a " product detail page" by clicking on a product listing. ( Id.; Levy Decl., Exh. A at 63:14-19.) From there, consumers can purchase the product by adding the product to his or her cart or by using Amazon's " One-Click" option. (Jaye Decl. at ¶ 9.)

The product detail page includes a large image of the product, a hyperlink identifying the brand of the product, and a title identifying the product in larger font. ( Id. at ¶ 10.) For example, the first product provided by Amazon's search function in response to the " mtm special ops" query is a product titled " Luminox Men's 8401 Black Ops Watch." ( Id. at ¶ 9.) That watch's product detail page provides a large image of the watch's face, which identifies the Luminox brand, a hyperlink identifying the Luminox brand, and a title identifying the watch in larger font as the " Luminox Men's 8401 Black Ops Watch." ( Id. at ¶ 10, Exh. C.)

On the product detail page, the words from the search query— " mtm special ops" — appear in the search query box.

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( Id. ) A gray bar separates this box from the product detail page below. ( Id. at ¶ 10.) Below the product detail page, Amazon suggests other products to the consumer under various headings. ( Id. at Exh. C.) One such heading, titled " Customers Viewing This Page May Be Interested in These Sponsored Links," displays sponsored hyperlinks titled " MTM Watches," with a link to www. yahoo. com, and " Military Watches Sale," which takes the consumer to ( Id. )

Accordingly, after navigating to a product detail page, the consumer can see the words " mtm special ops" in Amazon's search query box and a reference to MTM and its products in the sponsored advertisement.


Summary judgment is appropriate where the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show " that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). A party seeking summary judgment bears the initial burden of informing the court of the basis for its motion and of identifying those portions of the pleadings and discovery responses that demonstrate the absence of a genuine dispute of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). All reasonable inferences from the evidence must be drawn in favor of the nonmoving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

If the moving party does not bear the burden of proof at trial, it is entitled to summary judgment if it can demonstrate that " there is an absence of evidence to support the nonmoving party's case." Celotex, 477 U.S. at 323, 106 S.Ct. 2548.

Once the moving party meets its burden, the burden shifts to the nonmoving party opposing the motion, who must " set forth specific facts showing that there is a genuine issue for trial." Anderson, 477 U.S. at 256, 106 S.Ct. 2505. Summary judgment is warranted if a party " fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex, 477 U.S. at 322, 106 S.Ct. 2548. A genuine issue exists if " the evidence is such that a reasonable jury could return a verdict for the nonmoving party," and material facts are those " that might affect the outcome of the suit under the governing law." Anderson, 477 U.S. at 248, 106 S.Ct. 2505. There is no genuine issue of fact " [w]here the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986).

It is not the court's task " to scour the record in search of a genuine issue of triable fact." Keenan v. Allan, 91 F.3d 1275, 1278 (9th Cir.1996). Counsel has an obligation to lay out their support clearly. Carmen v. San Francisco Unified Sch. Dist., 237 F.3d 1026, 1031 (9th Cir.2001). The court " need not examine the entire file for evidence establishing a genuine issue of fact, where the evidence is not set forth in the opposition papers with adequate references so that it could conveniently be found." Id.


In her concurrence to Playboy Enterprises, Inc. v. Netscape Communications Corp., Judge Berzon ...

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