FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

MULTI TIME MACHINE, INC.,

Plaintiff-Appellant,

v.

AMAZON.COM, INC.; AMAZON

SERVICES, LLC,

Defendants-Appellees.

No. 13-55575

D.C. No.

2:11-cv-09076-

DDP-MAN

OPINION

Appeal from the United States District Court

for the Central District of California

Dean D. Pregerson, District Judge, Presiding

Argued and Submitted

April 9, 2015—Pasadena, California

Filed July 6, 2015

Before: Barry G. Silverman and Carlos T. Bea, Circuit

Judges and Gordon J. Quist,* Senior District Judge.

Opinion by Judge Bea;

Dissent by Judge Silverman

* The Honorable Gordon J. Quist, Senior District Judge for the U.S.

District Court for the Western District of Michigan, sitting by designation.
2 MULTI TIME MACHINE V. AMAZON.COM

SUMMARY**

Trademark

The panel reversed the district court’s summary judgment

in a trademark infringement action under the Lanham Act

against online retailer Amazon.com.

Multi Time Machine, Inc., manufacturer of MTM Special

Ops watches, alleged that Amazon’s website infringed its

trademark because of the manner in which the website

responded to a shopper’s search request for the watches. The

panel held that a jury could find that Amazon had created a

likelihood of confusion under an “initial interest confusion”

theory by responding to a search request with a page showing

“MTM Special Ops” three times above a search result

displaying similar watches manufactured by MTM’s

competitors.

Dissenting, Judge Silverman wrote that because

Amazon’s search result clearly labeled the name and

manufacturer of each product offered for sale and even

included photographs of the items, no reasonably prudent

shopper accustomed to shopping online would likely be

confused as to the source of the products.

** This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.
MULTI TIME MACHINE V. AMAZON.COM 3

COUNSEL

Eric Levinrad (argued) and Ryan Stonerock, Wolf, Rifkin,

Shapiro, Schulman, & Rabkin, LLP, Los Angeles, California;

Jeffrey Cohen, Millen, White, Zelano & Branigan, P.C.,

Arlington, Virginia, for Plaintiff-Appellant.

Marc C. Levy (argued) and Kathryn Feiereisel, Faegre Baker

Daniels LLP, Denver, Colorado, for Defendants-Appellees.

OPINION

BEA, Circuit Judge:

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.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
4 MULTI TIME MACHINE V. AMAZON.COM

below the search field and (3) yet again in the phrase

“Related Searches: MTM special ops watch,” all before

stating “Showing 10 Results.”1 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

of this initial confusion, MTM asserts she might look into

1 Our recitation of the facts, and our decision, are based on the evidence

submitted below. However, we may take judicial notice offacts which 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 (9thCir. 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.
MULTI TIME MACHINE V. AMAZON.COM 5

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.

Facts and Procedural History

Founded in 1992, MTM manufactures and markets

watches under various brand names, including MTM, MTM

Special Ops, and MTM Military Ops. MTM holds a

registered trademark in “MTM SPECIAL OPS”

2

for

timepieces. MTM sells its watches directly to customers,

through various distributors and retailers, and on military

bases. MTM markets its watches to men 22–55 years of age

who are drawn to rugged, military-style outdoor products. 

Thinking to cultivate and maintain an image as a high-end,

exclusive brand, MTM decided not to sell its watches to

Amazon for resale. Nor does MTM authorize its distributors

to sell MTM watches on Amazon. MTM’s agreements with

its distributors require them to seek MTM’s permission to sell

MTM’s products anywhere but at their own retail sites.

Amazon claims to offer “Earth’s Biggest Selection of

products,” products which include watches manufactured by

2 We refer to the various capitalizations of the trademark as “MTM

Special Ops” herein.
6 MULTI TIME MACHINE V. AMAZON.COM

various competitors of MTM. Amazon users who search for

“MTM Special Ops” on Amazon’s site are routed to a screen

which shows the phrase “MTM Special Ops” in the query

field (the “search query playback”); again immediately below

as “MTM Special Ops” with quotation marks, directly below

the search line; and immediately again after with the words

“Related Searches.” After the three iterations of MTM’s

trademark the screen lists search results, including watches

manufactured by MTM’s competitors and listed by name. 

Customers cannot purchase the watches from the search

results page, but must navigate to the “product detail” page

by clicking on a particular search result. Once the customer

has clicked on a particular result, he will see the particular

product’s brand name and the product title, which also shows

the brand name (e.g., Luminox). On the top of the product

detail page, the customer’s initial inquiry, “MTM Special

Ops,” will still appear in the search field. Nothing on either

of the pages states that Amazon does not carry MTM

products. Not so the websites of Amazon’s competitors

Buy.com and Overstock.com. They clearly announce that no

search results match the “MTM Special Ops” query and those

websites do not route the visitor to a page with both MTM’s

trademark “MTM Specials Ops” repeatedly at the top and

competitors’ watches below. Their pages show the search

query playback but then forthrightly state that no results for

the “MTM Special Ops” search query were found, and then

list competitors’ products.

MTM’s competitors’ products appear in the Amazon

search query response in part because Amazon’s search

algorithm responds to its customers’ behavior using a

Behavior Based Search technology (“BBS”), which uses data

about what customers view and purchase after searching

certain terms. Amazon does not program the terms; the
MULTI TIME MACHINE V. AMAZON.COM 7

function responds solely to customer behavior. If enough

customers search for a certain keyword, “X,” and then look

at or purchase another product “Y,” even if X and Y are not

obviously related, future customers who search for X may

receive search results including Y. But the BBS function is

not solely responsible for the search results. The results list

also includes matches based on a search of terms on

Amazon’s pages—for instance, streaming video of a show

called Special Ops Mission may be called up. Whether a

particular result appears because of BBS or a traditional

search of matching terms is not evident from the matches, and

the relevant products (which are based on search terms) and

recommended products (based on BBS) are mingled together.

MTM sued Amazon, alleging that Amazon had infringed

MTM’s trademarks in violation of the Lanham Act. MTM

sought injunctive relief barring use of the trademark and

damages. On Amazon’s motion, the district court granted

summary judgment to Amazon. MTM timely appealed.

Standard of Review

We review de novo the district court’s grant of summary

judgment, and must consider the evidence in the light most

favorable to the nonmoving party. Surfvivor Media, Inc. v.

Survivor Prods., 406 F.3d 625, 630 (9th Cir. 2005). This

court may affirm the grant of summary judgment on any

ground that finds support in the record. Karl Storz

Endoscopy Am., Inc. v. Surgical Technologies, Inc., 285 F.3d

848, 855 (9th Cir. 2002).
8 MULTI TIME MACHINE V. AMAZON.COM

Discussion

Under the Lanham Act, a defendant infringes a trademark

when the defendant uses the mark in commerce in a manner

likely to cause confusion as to a good’s source. Trademark

infringement also occurs when the trademark’s use in

commerce is likely to cause confusion as to the affiliation,

association, or approval of the trademark holder with the

trademark user.3 A defendant who infringes another’s

trademark is liable for damages and subject to injunction. 

15 U.S.C. §§ 1114(1)(a), 1125(a)(1). Put another way, a

defendant who creates likelihood of confusion by using

another’s mark has infringed the mark. Playboy Enterprises,

Inc. v. Netscape Commc’ns Corp., 354 F.3d 1020, 1024 (9th

Cir. 2004).4

3

“[A]ny person who shall, without consent of the registrant, “use in

commerce any reproduction, counterfeit, copy, or colorable imitation of

a registered mark in connection with the sale, offering for sale,

distribution, or advertising of any goods or services on or in connection

with which such use is likely to cause confusion, or to cause mistake” is

liable for damages, and the registrant may be entitled to injunctive relief. 

15 U.S.C. § 1114(1)(a). Any person who “uses in commerce any word,

term, name, symbol, or device . . . which is likely to cause confusion . . .

as to the affiliation, connection, or association ofsuch person with another

person, or as to the origin, sponsorship, or approval of his or her goods,

services of commercial activities” is also subject to injunction and liable

for damages to one likely to be damaged. 15 U.S.C. § 1125(a)(1).

4

In Playboy, defendant search engine Netscape required adult-oriented

websites who purchased advertising from Netscape to link their

advertisements to search keywords “playboy” and “playmate,” trademarks

of Playboy Enterprises (“PEI”). 354 F.3d at 1023. When Netscape users

searched the terms, they would be presented with banner ads for non-PEI

operated websites that said “click here” and routed users to advertisers’

websites. Id. PEI sued Netscape for Lanham Act violations, and the

district court granted summary judgment in favor of defendants. Id. This
MULTI TIME MACHINE V. AMAZON.COM 9

A defendant can create likelihood of confusion, and

thereby infringe the trademark, through a type of confusion

referred to as “initial interest confusion.” Initial interest

confusion occurs not where a customer is confused about the

source of a product at the time of purchase, but earlier in the

shopping process, if “customer confusion . . . creates initial

interest in a competitor’s product.” Id. at 1025. Even if that

confusion is dispelled before an actual sale occurs, initial

interest confusion still constitutes trademark infringement

because it “impermissibly capitalizes on the goodwill

associated with a mark and is therefore actionable trademark

infringement.” Id.

A. Likelihood of Confusion

This court considers eight non-exhaustive factors, known

as the Sleekcraft factors, to determine whether a trademark

use gives rise to a likelihood of confusion: (1) strength of the

mark(s); (2) proximity or relatedness of the goods;

(3) similarity of the marks; (4) evidence of actual confusion;

(5) marketing channels; (6) degree of consumer care; (7) the

defendants’ intent; and (8) likelihood of expansion. Network

Automation, Inc., v. Advanced Sys. Concepts, Inc., 638 F.3d

1137, 1145 (9th Cir. 2011) (citing AMF Inc. v. Sleekcraft

Boats, 599 F.2d 341, 348–49 (9th Cir. 1979)). As the

Network Automation court explained, in the context of

internet commerce, though likelihood of confusion might be

shown where “consumers saw banner advertisements that

were ‘confusingly labeled or not labeled at all’. . . .clear

labeling ‘might eliminate the likelihood of confusion.’”

court reversed. We found that initial interest confusion supported an

infringement theory even if users realized they were not at a PEI site

before making a purchase. Id. at 1025, 1026–29.
10 MULTI TIME MACHINE V. AMAZON.COM

Network Automation, 638 F.3d at 1153–54 (citing Playboy,

354 F.3d at 1023, 1030 n.43).5

Network Automation and Playboy addressed the

unauthorized use of a trademark to sell advertising keywords

5

In Network Automation, plaintiff Network Automation and defendant

Advanced Systems Concepts both sold job scheduling and management

software. 638 F.3d at 1142. Network Automation advertised its product

by purchasing certain keywords—including registered trademarks

belonging to Advanced Systems—which, when typed into various search

engines, produced a results page that included Network Automation’s

website “www.NetworkAutomation.com” as a labeled, sponsored link.

Id. Advanced Systems alleged violation of the Lanham Act and moved

for a preliminary injunction. Id. at 1143. The district court granted a

preliminary injunction to Advanced Systems, and Network Automation

appealed. Id. On appeal, this court reversed and vacated the preliminary

injunction. This court considered the eight Sleekcraftfactors and held that

the district court had not weighed the factors flexibly and that “[b]ecause

the linchpin of trademark infringement is consumer confusion, the district

court abused its discretion in entering the injunction.” Id. at 1154. The

court held that because “the sine qua non of trademark infringement is

consumer confusion, when we examine initial interest confusion, the

owner of the mark must demonstrate likely confusion, not mere

diversion.” Id. at 1149. Amazon contends that because “mere diversion”

does not constitute initial interest confusion, the doctrine is inapplicable

to the internet. However, whether customers are merely diverted is a

question of fact. This court properly considered whether the facts favored

Advanced Systems in Network Automation because a preliminary

injunction requires “the moving party [there, the plaintiff alleging

infringement] demonstrate a fair chance of success on the merits or

questions serious enough to require litigation.” Arc of Cal. v. Douglas,

757 F.3d 975, 993 (9th Cir. 2014). Therefore, the Network Automation

court properly considered the weight of the evidence to decide whether

Advanced Systems had a fair chance of success on the merits. Here, we

are not tasked to determine whether MTM is likely to succeed, nor to

consider the weight of the evidence. As this is an appeal from a summary

judgment, we must decide whether there is a genuine triable issue of

material fact.
MULTI TIME MACHINE V. AMAZON.COM 11

to search engines, not the use of a trademark to sell

competitors’ products. However, we think that in the sale

context, just as the “labeling and appearance of the

advertisements as they appear on the result page includes

more than the text of the advertisement, and must be

considered as a whole,” here the labeling of search results

which feature competitors’ products is important. Network

Automation, 638 F.3d at 1154. Because of its importance, we

first address labeling—which we find gives rise to a genuine

issue of fact—and then turn to the traditional Sleekcraft

factors.

1. Labeling

MTM submitted an expert report that stated that the

search results on Amazon are “ambiguous, misleading, and

confusing.” Dist. Ct. Order, 926 F.Supp.2d 1130, 1141 (N.D.

Cal. Feb. 20, 2015). The district court found that the expert

analysis showed only that customers could be confused about

why they receive certain search results, but that there was no

evidence that Amazon users were likely to be confused as to

the source who manufactured the competing goods We

disagree. A jury could infer that users who are confused by

the search results are confused as to why MTM products are

not listed. Unlike its competitors Buy.com and

Overstock.com, Amazon does not forestall any confusion by

informing customers who are searching “MTM Special Ops”

that Amazon does not carry any such products.

A jury could infer that users who are confused by the

search result will wonder whether a competitor has acquired

MTM or is otherwise affiliated with or approved by MTM. 

See Brookfield Commc’ns, Inc. v. West Coast Entm’t Corp.,

174 F.3d 1036, 1057 (9th Cir. 1999). This is especially true
12 MULTI TIME MACHINE V. AMAZON.COM

as to a brand like MTM, as many luxury brands with distinct

marks are produced bymanufacturers of lower-priced, betterknown brands—just as Honda manufactures Acura

automobiles but sells Acura automobiles under a distinct

mark that is marketed to wealthier purchasers, and Timex

manufactures watches for luxury fashion houses Versace and

Salvatore Ferragamo. Like MTM, Luminox manufactures

luxury watches, and a customer might think that MTM and

Luminox are manufactured by the same parent company. The

possibility of initial interest confusion here is likely much

higher than if, for instance, a customer using an online

grocery website typed “Coke” and only Pepsi products were

returned as results. No shopper would think that Pepsi was

simply a higher end version of Coke, or that Pepsi had

acquired Coke’s secret recipe and started selling it under the

Pepsi mark.6

In any event, even as to expensive goods—for instance,

pianos sold under a mark very similar to the famous Steinway

and Sons brand’s mark—the issue is not that a buyer might

buy a piano manufactured by someone other than Steinway

thinking that it was a Steinway. The issue is that the

defendant’s use of the mark would cause initial interest

6 The dissent also mentions Coke and Pepsi in conjunction with the

labeling inquiry, and John Belushi’s Saturday Night Live “cheezborger”

refrain—“No Coke. Pepsi.” However, Belushi’s line is analogous to the

message on Overstock’s and Buy’s websites, which state the equivalent

of “No Coke” rather than simply inundating the shopper with images of

Pepsi. The dissent acknowledges that a retailer who offers competitors’

products for sale, without mentioning that he does not carry a brand

requested by a customer, is “sort of like what happens when you order a

Coke, and are clearly told that they only have Pepsi.” Dissent at 23. But

it is only sort of like the Belushi scenario, because unlike Belushi’s “No

Coke,” Amazon does not say “No MTM.”
MULTI TIME MACHINE V. AMAZON.COM 13

confusion by attracting potential customers’ attention to buy

the infringing goods because of the trademark holder’s hardwon reputation. Brookfield, 174 F.3d at 1063 (citing

Grotrian, Helfferich, Schulz, Th. Steinweg Nachf. v. Steinway

& Sons, 523 F.2d 1331, 1341–42 (2d. Cir. 1975)).

A jury could infer that the labeling of the search results,

and Amazon’s failure to notify customers that it does not

have results that match MTM’s mark, give rise to initial

interest confusion. If so, a jury might find that Amazon

customers searching for MTM products are subject to more

than mere diversion, since MTM is not required to show that

customers are likely to be confused at the point of sale. 

Playboy, 354 F.3d at 1025.

We agree with the district court’s conclusion that the

product details for competitors’ itemized products were

clearly labeled, but we find that the clarity of the search

results page at issue is open to dispute. We must not

substitute our determination of what constitutes clear

labeling, nor its importance, for that of a jury.

2. Sleekcraft Factors

The Sleekcraft “eight-factor test for likelihood of

confusion is pliant. Some factors are much more important

than others, and the relative importance of each individual

factor will be case-specific.” Brookfield, 174 F.3d at 1054.

On a motion for summary judgment, courts may consider

whether any of the Sleekcraft factors give rise to a genuine

issue of fact. Fortune Dynamic, Inc. v. Victoria’s Secret

Stores Brand Mgmt., Inc., 618 F.3d 1025, 1031 (9th Cir.

2010). A court may be “far from certain that consumers were

likely to be confused [and still be] confident that the question
14 MULTI TIME MACHINE V. AMAZON.COM

is close enough that it should be answered as a matter of fact

by a jury, not as a matter of law by a court.” Id. If there is a

genuine issue of fact as to any of the factors, there is more

likely to be a genuine issue of fact as to whether there is

likelihood of confusion. To avoid summary judgment a

plaintiff need not show that every factor weighs in his favor,

only to make a strong showing as to some of them (though we

note that, because the factors are not exhaustive, a plaintiff

could presumably survive summary judgment by adducing

evidence of likelihood of confusion that did not fall within

one of the factors). Surfvivor, 406 F.3d at 630.

Mindful that our analysis must be tailored to this case, we

discuss below the five Sleekcraft factors we deem relevant to

resolution of the question of summary judgment: the strength

of the mark, relatedness/proximity of the goods, evidence of

actual confusion, defendant’s intent, and the degree of care

exercised by purchasers. Three of the Sleekcraft factors are

irrelevant: similarity of marks, marketing channels, and

likelihood of expansion. As to similarity of marks, Amazon

is using MTM’s mark, not another mark in its display of

“search results.” As to marketing channels, both MTM and

Amazon sell watches on the internet, which is too widespread

a market to affect the likelihood of confusion among

customers. The possibility of expansion is irrelevant since

MTM and Amazon both already sell high-end timepieces, as

discussed below under the heading “relatedness of the

goods.”

We find that three of the remaining five relevant factors

appear to weigh in favor of a finding of a likelihood of

confusion, and we address these first. We hold that it is the

province of a jury to determine how heavily each of these

factors should weigh.
MULTI TIME MACHINE V. AMAZON.COM 15

a. Strength of the Mark

A mark’s strength is a measure of how uniquely identified

it is with a product or service, and therefore how deserving of

trademark protection. Fortune Dynamic, 618 F.3d at 1032. 

Two types of trademark strength are relevant: commercial

and conceptual. Commercial strength refers to a mark’s

recognition in the marketplace, that is, how widely

recognized the mark is by customers. Id. at 1034. Neither

MTM nor Amazon presented evidence of MTM’s

commercial strength. We do not consider it; we turn to

consideration of conceptual strength.

“A mark’s conceptual strength depends largely on the

obviousness of its connection to the good or service to which

it refers. The less obvious the connection, the stronger the

mark, and vice versa.” Id. at 1032–33. Conceptual strength

is considered along a continuum, and in this circuit, marks

may be classified as falling into one of five categories, from

conceptually weak to conceptually strong: generic,

descriptive, suggestive, arbitrary, or fanciful. Id. at 1033. 

Whether a mark is descriptive or suggestive is a question of

fact. Id. at 1034. In an infringement suit, “the distinction

[between a descriptive and suggestive mark] is important . . .

because if the mark is suggestive, there is a stronger

likelihood that a jury could reasonably conclude that the

‘strength of the mark’ factor favors the [plaintiff].” Id. Here,

the district court found that “Amazon’s evidence is persuasive

in showing that the marks are not strong; they are at best

suggestive, and more likely descriptive.” 926 F.Supp.2d at

1139. However, the phrase “MTM Special Ops” requires “a

mental leap from the mark to the product,” because the phrase

does not expressly refer to watches. Fortune Dynamic,

618 F.3d at 1034. Indeed, by evoking elite military forces
16 MULTI TIME MACHINE V. AMAZON.COM

(“Special Ops”), the goods suggested by the phrase are as

likely to be protective gear, binoculars, weapons, or boots as

they are watches. A jury could find that the mark is

suggestive and conceptually strong because it does not

obviously refer to watches, or that it is merely descriptive

because the watches are made in a military style. Either way,

the weight of the evidence is a question of fact, and there is

a genuine issue of fact as to the conceptual strength of the

mark. As in Fortune Dynamic, “a jury should assess the

conceptual strength of [plaintiff’s] mark in the first instance.” 

618 F.3d at 1033.

b. Similarity of the Goods

Like MTM, Amazon sells specialized, military-style

watches. The similarity of the goods Amazon is selling

weighs in favor of a finding of infringement. The district

court cited Network Automation for the proposition that

“though the products were interchangeable . . . that fact

would ‘become less important if advertisements are clearly

labeled or consumers exercise a high degree of care, because

rather than being misled, the consumer would merely be

confronted with choices among similar products.’” 926

F.Supp.2d at 1137 (citing Network Automation, 638 F.3d at

1150). The district court found “the same is true in this case;

although Amazon and MTM both sell watches, which are

identical products, this is misleading only if the consumer is

confused, not if the consumer simply has clearly marked

options.” Id. This conclusion assumes that Amazon

customers will not be confused, and that the options are

clearly marked, which are questions of fact as to which both

parties submitted evidence. The facts of this case are

distinguishable from Network Automation, where the

claimant trademark holder’s products were displayed
MULTI TIME MACHINE V. AMAZON.COM 17

alongside the alleged infringers’ products, thereby presenting

“clearly marked options.” MTM watches are not displayed

at all on the Amazon website. Whether customers will

believe the options on Amazon’s page, which do not include

MTM products, are clearly marked as having no association

with, or approval by, MTM, and whether they will be

confused, is an open question, and its answer does not render

the identity of the goods here moot. Rather, a jury could find

that it weighs in favor of finding likelihood of confusion.

On summary judgment, the court may not make

assumptions about the sophistication of would-be purchasers. 

Fortune Dynamic, 618 F.3d at 1030. Some members of

MTM’s target demographic, men of 22–55 years of age who

like military-styled, rugged products, may not be frequent

internet shoppers. Such purchasers “may incorrectly believe

that [defendant] licensed [the mark] from [plaintiff] . . . .

Other consumers may simply believe that [defendant or the

manufacturers it features] bought out [plaintiff], or that they

are related companies.” Brookfield Commc’n, Inc. v. West

Coast Entm’t Corp., 174 F.3d 1036, 1057 (9th Cir. 1999). 

This is especially possible here because Amazon touts itself

as offering “Earth’s Biggest Selection of products,” and, as

noted above, manufacturers sometimes market luxury brands

under distinct marks. Even if further internet research could

clarify the matter for a customer who wondered if MTM had

been acquired or had acquired its competitor watch-makers,

it is incorrect to conclude that “likelihood of confusion exists

only when consumers are confused as to the source of a

product they actually purchase. It is . . . well established that

the Lanham Act protects against many other forms of

confusion.” Brookfield, 174 F.3d at 1057. Network

Automation found that on the internet, initial interest

confusion is an untenable theory where sponsored links
18 MULTI TIME MACHINE V. AMAZON.COM

appear on search pages that have “partitioned their search

results pages so that the advertisements appear in separately

labeled sections for ‘sponsored’ links.’” 638 F.3d at 1154. 

Here, the competitors’ products are not clearly labeled as

being BBS results rather than keyword searches. The

similarity of the goods means that an Amazon customer who

searches for “MTM Special Ops” and then investigates

watches manufactured by Luminox or Chase-Durer, even if

he later purchases such a watch without any confusion as to

its source, will have been subject to “confusion, not mere

diversion.”

7 Network Automation, 638 F.3d at 1149. Even

though his confusion may be “dispelled before an actual sale

occurs, initial interest confusion impermissibly capitalizes on

the goodwill associated with a mark and is therefore

actionable trademark infringement.” Playboy, 354 F.3d at

1025. Therefore, the similarity of goods weighs in favor of

MTM, and a jury should determine just how much it weighs

in favor of MTM.

c. Defendant’s intent

“A defendant’s intent to confuse constitutes probative

evidence of likely confusion.” Playboy, 354 F.3d at 1028. 

MTM submitted evidence that Amazon vendors and

customers had complained to Amazon because they did not

understand why they received certain non-responsive search

results when they searched for products that are not carried by

Amazon. The evidence showed that Amazon employees did

not take action to address the complaints by explaining to the

public how the BBS function works. One Amazon employee

noted that explaining BBS to the public might draw

7 Amazon’s evidence that customers do not purchase competitors’

watches after searching “MTM SPECIAL OPS” is addressed below.
MULTI TIME MACHINE V. AMAZON.COM 19

customers’ and vendors’ unwanted scrutiny to the matter. 

Amazon did not disclose to shoppers how its BBS worked.

As in Playboy, this evidence suggests, “at a minimum,

that defendants do nothing to alleviate confusion. . . .

Although not definitive, this factor provides some evidence

of an intent to confuse on the part of defendants.” Playboy,

354 F.3d at 1029. From evidence that “Earth’s most

customer-centric company” took no action on these

complaints, a jury could infer that Amazon intended to

confuse its customers. We leave it to a jury to determine, if

Amazon so intended, how important that intent is, and we

turn to two factors that we think weigh in favor of Amazon.

d. Evidence of Actual Confusion

Where evidence of actual confusion is submitted, it is

“strong support for the likelihood of confusion.” Network

Automation, 638 F.3d at 1151 (internal quotation marks

omitted). But actual confusion “is not necessary to a finding

of likelihood of confusion under the Lanham Act. Indeed,

proving actual confusion is difficult . . . and the courts have

often discounted such evidence because it was unclear or

insubstantial.” Id. (internal quotation marks, citation, and

brackets omitted).

MTM did not submit colorable evidence of actual

confusion. MTM offered its president’s testimony that he had

knowledge of actual confusion. The district court found this

testimony was too vague to constitute evidence. The

president testified that someone he had met named Eric said,

in reference to Amazon’s page, “it’s confusing.” Such

testimony does not suffice to give rise to a genuine issue of

fact, even were such hearsay admissible, as the record does
20 MULTI TIME MACHINE V. AMAZON.COM

not provide support for the speculation that Eric was a

potential customer.

Amazon submitted evidence that purports to show that no

customers were confused, because customers who searched

for “Luminox” were 21 times as likely to purchase a Luminox

watch as were customers who searched for “MTM Special

Ops.” We do not find it surprising that customers who search

for an item (Luminox watches) are more likely to buy that

item than customers who did not search for it but searched for

another product (MTM watches). But in the absence of

evidence of actual confusion, we agree that the factor weighs

in favor of Amazon. However, we are not persuaded that a

jury could not view this purported evidence of no actual

confusion as flawed because a user researching watches

might initially be confused about the availability of MTM

watches online and so not purchase a Luminox the same day.

8

Further, some users did search for “MTM Special Ops” and

purchase a competitor’s watch the same day, which a jury

could find probative of some confusion.

8

In response to MTM’s critique that the data did not fully account for

consumer behavior, the district court opined that “Amazon persuasively

responds that the value of the data is not absolute but relative; there is no

reason to think that those consumers searching for Luminox would exhibit

different behaviors from those searching for MTM Special Ops.” 926

F.Supp.2d at 1140. However, the very relativity of the data makes its

value a question for a jury, who might determine that Luminox customers

on Amazon are different from would-be MTM Special Ops purchasers:

Luminox customers make same-day purchases because the product they

sought is available on Amazon. MTM Special Ops customers may wait

a few days to buy a Luminox watch because it is not what they sought, but

their interest in a Luminox watch was piqued because they were uncertain

whether or how Luminox is affiliated with or approved by MTM.
MULTI TIME MACHINE V. AMAZON.COM 21

e. Degree of Care

As to the degree of care expected of a purchaser, when

goods are expensive, purchasers can be expected to exercise

greater care, though confusion may still be likely. Network

Automation, 638 F.3d at 1152. MTM’s watches are priced

between several hundred dollars to two thousand dollars. The

district court did not err in finding that consumers could be

presumed to use a high degree of care in purchasing such

watches. However, in light of our determination that other

factors give rise to genuine issues of fact, we note that a jury

may find that Amazon presented evidence that “same day

sales” are high for Luminox. This could be interpreted, by a

jury, as proof that at least some persons who seek military

watches are impulse buyers who do not spend as much time

comparing products as careful buyers might. If so, the jury

might accord the price of the watches little weight compared

to the other factors. This factor and its relative importance

are matters for a jury.

B. Use in Commerce

This court has held that use of a trademark as a search

engine keyword that triggers the display of a competitor’s

advertisement is a “use in commerce” under the Lanham Act. 

Network Automation, 638 F.3d at 1144–45. Amazon

contends that the user-generated search term “MTM Special

Ops” is not a use in commerce within the meaning of the

Lanham Act. We hold that the customer-generated use of a

trademark in the retail search context is a use in commerce. 

As the district court correctly observed, though Network

Automation is distinguishable because the search engines

were selling the use of competitor’s trademarks, Amazon’s

purpose is not less commercial just because it is selling
22 MULTI TIME MACHINE V. AMAZON.COM

wares, not advertising space. Therefore, we decline to affirm

the district court on the alternative ground that Amazon’s use

is not a use in commerce.

Conclusion

We are by no means certain that MTM will be able to

prove likelihood of confusion under an initial interest

confusion theory, but we are confident the matter can be

determined only by resolving genuine issues of material fact.

REVERSED AND REMANDED.

SILVERMAN, Circuit Judge, dissenting:

Live! From New York! It’s Saturday Night! . . . and the

scene is the Olympia Restaurant, Chicago, January, 1978. 

Dan Aykroyd is manning the grill, Bill Murray is working

prep, and John Belushi is up front taking orders. A customer,

Jane Curtin, walks in and orders two cheeseburgers. Belushi

yells to the grill: “Cheezborger, cheezborger.” Curtin then

orders a Coke. Without looking up, Belushi replies: “No

Coke. Pepsi.”

Pause it right there.

Would anyone seriously contend that the diner violated

Coke’s trademark by responding to the customer’s order that

it doesn’t carry Coke, only Pepsi?

Now, fast-forward to the present. A customer goes online

to Amazon.com looking for a certain military-style
MULTI TIME MACHINE V. AMAZON.COM 23

wristwatch – specificallythe “MTM Special Ops” – marketed

and manufactured by Plaintiff Multi Time Machine, Inc. The

customer types “mtm special ops” in the search box and

presses “enter.” Because Amazon does not sell the MTM

Special Ops watch, what the search produces is a list, with

photographs, of several other brands of military style watches

that Amazon does carry, specifically identified by their brand

names – Luminox, Chase-Durer, TAWATEC, and Modus –

sort of like what happens when you order a Coke, and are

clearly told that they only have Pepsi. The particular search

results page at issue is displayed below:
-10-

10

 Case: 13-55575, 11/26/2013, ID: 8878836, DktEntry: 17-2, Page 13 of 37

24 MULTI TIME MACHINE V. AMAZON.COM
MULTI TIME MACHINE V. AMAZON.COM 25

MTM brought suit alleging that Amazon’s response to a

search for the MTM Special Ops watch on its website is

trademark infringement in violation of the Lanham Act. 

MTM contends that Amazon’s search results page creates a

likelihood of confusion, even though there is no evidence of

any actual confusion and even though the other brands are

clearly identified by name and each product is displayed with

a photograph. The district court granted summary judgment

in favor of Amazon.

I would affirm. “The core element of trademark

infringement” is whether the defendant’s conduct “is likely to

confuse customers about the source of the products.” E. & J.

Gallo Winery v. Gallo Cattle Co., 967 F.2d 1280, 1290 (9th

Cir. 1992). Because Amazon’s search results page clearly

labels the name and manufacturer of each product offered for

sale and even includes photographs of the items, no

reasonably prudent consumer accustomed to shopping online

would likely be confused as to the source of the products. 

Thus, summary judgment of MTM’s trademark claims was

proper.

I.

“Although disfavored in trademark infringement cases,

summary judgment may be entered when no genuine issue of

material fact exists.” Id. Indeed, in several trademark cases,

we have concluded that there is no likelihood of confusion as

a matter of law, and affirmed the district court’s grant of

summary judgment in favor of the defendant. See, e.g., One

Indus., LLC v. Jim O’Neal Distrib., 578 F.3d 1154, 1162–65

(9th Cir. 2009); M2 Software, Inc. v. Madacy Entm’t,

421 F.3d 1073, 1080–85 (9th Cir. 2005); Surfvivor Media,

Inc. v. Survivor Prods., 406 F.3d 625, 631–34 (9th Cir. 2005).
26 MULTI TIME MACHINE V. AMAZON.COM

To prevail on a claim of trademark infringement under the

Lanham Act, “a trademark holder must show that the

defendant’s use of its trademark ‘is likely to cause confusion,

or to cause mistake, or to deceive.’” Fortune Dynamic, Inc.

v. Victoria’s Secret Stores Brand Mgmt., 618 F.3d 1025, 1030

(9th Cir. 2010) (quoting 15 U.S.C. § 1125(a)(1)-(a)(1)(A)). 

“The test for likelihood of confusion is whether a ‘reasonably

prudent consumer’ in the marketplace is likely to be confused

as to the origin of the good or service bearing one of the

marks.” Dreamwerks Prod. Group v. SKG Studio, 142 F.3d

1127, 1129 (9th Cir. 1998). “The confusion must ‘be

probable, not simply a possibility.’” Murray v. Cable NBC,

86 F.3d 858, 861 (9th Cir. 1996).

Here, the district court was correct in ruling that there is

no likelihood of confusion. Amazon is responding to a

customer’s inquiry about a brand it does not carry by doing

no more than stating clearly (and showing pictures!) of what

brands it does carry. To whatever extent the Sleekcraft

factors1 apply in a case such as this – a merchant responding

to a request for a particular brand it does not sell by offering

other brands clearly identified as such – the undisputed

evidence shows that confusion on the part of the inquiring

buyer is not at all likely. Not only are the other brands clearly

labeled and accompanied by a photograph, there is no

evidence of actual confusion by anyone.

1 The eight-factor test from our decision in AMF Inc. v. Sleekcraft Boats,

599 F.2d 341, 348-49 (9th Cir. 1979), abrogated in part on other grounds

as recognized in Mattel, Inc. v. Walking Mountain Prods., 353 F.3d 792

(9th Cir. 2003).
MULTI TIME MACHINE V. AMAZON.COM 27

To analyze likelihood of confusion, we utilize the eightfactor test set forth in Sleekcraft.

2 However, “[w]e have long

cautioned that applying the Sleekcraft test is not like counting

beans.” One Indus., 578 F.3d at 1162; see also Network

Automation, Inc. v. Advanced Sys. Concepts, 638 F.3d 1137,

1145 (9th Cir. 2011) (“The Sleekcraft factors are intended as

an adaptable proxy for consumer confusion, not a rote

checklist.”). “Some factors are much more important than

others, and the relative importance of each individual factor

will be case-specific.” Brookfield, 174 F.3d at 1054. 

Moreover, the Sleekcraft factors are not exhaustive and other

variables may come into play depending on the particular

facts presented. Network Automation, 638 F.3d at 1145–46. 

This is particularly true in the Internet context. See

Brookfield, 174 F.3d at 1054 (“We must be acutely aware of

excessive rigidity when applying the law in the Internet

context; emerging technologiesrequire a flexible approach.”). 

Indeed, in evaluating claims of trademark infringement in

cases involving Internet search engines, we have found

particularly important an additional factor that is outside of

the Sleekcraft test: “the labeling and appearance of the

advertisements and the surrounding context on the screen

displaying the results page.” Network Automation, 638 F.3d

at 1154.

In the present case, the eight-factor Sleekcraft test is not

particularly apt. This is not surprising as the Sleekcraft test

2 The eight Sleekcraft factors are: “1. strength of the mark; 2. proximity

of the goods; 3. similarity of the marks; 4. evidence of actual confusion;

5. marketing channels used; 6. type of goods and the degree of care likely

to be exercised by the purchaser; 7. defendant’s intent in selecting the

mark; and 8. likelihood of expansion of the product lines.” 599 F.2d at

348–49.
28 MULTI TIME MACHINE V. AMAZON.COM

was developed for a different problem – i.e., for analyzing

whether two competing brands’ marks are sufficiently similar

to cause consumer confusion. See Sleekcraft, 599 F.2d at

348. Although the present case involves brandsthat compete

with MTM, such as Luminox, Chase-Durer, TAWATEC, and

Modus, MTM does not contend that the marks for these

competing brands are similar to its trademarks. Rather, MTM

argues that the design of Amazon’s search results page

creates a likelihood of initial interest confusion because when

a customer searches for MTM Special Ops watches on

Amazon.com, the search results page displays the search term

used – here, “mtm special ops” – followed by a display of

numerous watches manufactured by MTM’s competitors and

offered for sale by Amazon, without explicitly informing the

customer that Amazon does not carry MTM watches.

Thus, the present case focuses on a different type of

confusion than was at issue in Sleekcraft. Here, the confusion

is not caused by the design of the competitor’s mark, but by

the design of the web page that is displaying the competing

marks and offering the competing products for sale. 

Sleekcraft aside, the ultimate test for determining likelihood

of confusion is whether a “reasonably prudent consumer” in

the marketplace is likely to be confused as to the origin of the

goods. Dreamwerks, 142 F.3d at 1129. Our case can be

resolved simply by an evaluation of the web page at issue and

the relevant consumer. Cf. Brookfield, 174 F.3d at 1054 (“[I]t

is often possible to reach a conclusion with respect to

likelihood of confusion after considering only a subset of the

factors.”). Indeed, we have previously noted that “[i]n the

keyword advertising context [i.e., where a user performs a

search on the internet, and based on the keywords contained

in the search, the resulting web page displays certain

advertisements containing products or services for sale,] the
MULTI TIME MACHINE V. AMAZON.COM 29

‘likelihood of confusion will ultimately turn on what the

consumer saw on the screen and reasonably believed, given

the context.’” Network Automation, 638 F.3d at 1153. In

other words, the case will turn on the answers to the

following two questions: (1) Who is the relevant reasonable

consumer?; and (2) What would he reasonably believe based

on what he saw on the screen?

Turning to the first question, we have explained that

“[t]he nature of the goods and the type of consumer is highly

relevant to determining the likelihood of confusion in the

keyword advertising context.” Network Automation,

638 F.3d at 1152. “In evaluating this factor, we consider ‘the

typical buyer exercising ordinary caution.’” Au-Tomotive

Gold, Inc. v. Volkswagen of Am., Inc., 457 F.3d 1062, 1076

(9th Cir. 2006) (quoting Sleekcraft, 599 F.2d at 353). 

“Confusion is less likely where buyers exercise care and

precision in their purchases, such as for expensive or

sophisticated items.” Id. Moreover, “the default degree of

consumer care is becoming more heightened as the novelty of

the Internet evaporates and online commerce becomes

commonplace.” Network Automation, 638 F.3d at 1152.

The goods in the present case are expensive. It is

undisputed that the watches at issue sell for several hundred

dollars. Therefore, the relevant consumer in the present case

“is a reasonably prudent consumer accustomed to shopping

online.” Toyota Motor Sales, U.S.A., Inc. v. Tabari, 610 F.3d

1171, 1176 (9th Cir. 2010).

Turning to the second question, as MTM itself asserts, the

labeling and appearance of the products for sale on Amazon’s

web page is the most important factor in this case. This is

because we have previously noted that clear labeling can
30 MULTI TIME MACHINE V. AMAZON.COM

eliminate the likelihood of initial interest confusion in cases

involving Internet search terms. See, e.g., Playboy Enters. v.

Netscape Communs. Corp., 354 F.3d 1020, 1030 n.44 (9th

Cir. 2004) (explaining that clear labeling “might eliminate the

likelihood of initial interest confusion that exists in this

case”); Network Automation, 638 F.3d at 1154 (same). 

Indeed, MTM itself argues: “The common thread of [the

Ninth Circuit’s decisions in Brookfield, Playboy, and Network

Automation] is that liability under the Lanham Act can only

be avoided as a matter of law where there is clear labeling to

avoid the possibility of confusion – including initial interest

confusion – resulting from the use of another’s trademark.” 

Thus, MTM agrees that summary judgment of its trademark

claims is appropriate if there is clear labeling that avoids

likely confusion.

Here, the products at issue are clearly labeled by Amazon

to avoid any likelihood of initial interest confusion by a

reasonablyprudent consumer accustomed to online shopping. 

When a shopper goes to Amazon’s website and searches for

a product using MTM’s trademark “mtm special ops,” the

resulting page displays several products, all of which are

clearly labeled with the product’s name and manufacturer in

large, bright, bold letters and includes a photograph of the

item. In fact, the manufacturer’s name is listed twice. For

example, the first result is “Luminox Men’s 8401 Black Ops

Watch by Luminox.” The second result is “Chase-Durer

Men’s 246.4BB7-XL-BR Special Forces 1000XL Black

Ionic-Plated Underwater Demolition Team Watch by

Chase-Durer.” Because Amazon clearly labels each of the

products for sale by brand name and model number

accompanied by a photograph of the item, it is simply bizarre

to suppose that a reasonablyprudent consumer accustomed to
MULTI TIME MACHINE V. AMAZON.COM 31

online shopping would be confused about the source of the

goods.

MTM argues that initial interest confusion might occur

because Amazon lists the search term used – here the

trademarked phrase “mtm special ops” – three times at the

top of the search page. MTM argues that because Amazon

lists the search term “mtm special ops” at the top of the page,

a consumer might conclude that the products displayed are

types of MTM watches. But, a review of Amazon’s search

results page shows that such consumer confusion is highly

unlikely. None of these products are labeled with the word

“MTM” or the phrase “Special Ops,” let alone the specific

phrase “MTM Special Ops.” Further, some of the products

are not even watches. The sixth result is a book entitled

“Survive!: The Disaster, Crisis andEmergency Handbook

by Jerry Ahem.” The tenth result is a book entitled “The

Moses Expedition: A Novel by Juan Gómez-Jurado.” It is

perplexing how one could assume that a book entitled “The

Moses Expedition” is a type of MTM watch or is in any way

affiliated with MTM watches. It is hard to fathom how a

reasonably prudent consumer accustomed to shopping online

would view Amazon’s search results page and conclude that

the products offered are MTM watches. Some of the

products are not even watches! And the watches that are

offered for sale are clearly labeled as being manufactured by

Luminox, Chase-Durer, TAWATEC, or Modus – not by

MTM. It is possible that some dolt somewhere might be

confused by the search results page. But, “[u]nreasonable,

imprudent and inexperienced web-shoppers are not relevant.” 

Tabari, 610 F.3d at 1176; see also Network Automation,

638 F.3d at 1153 (“[W]e expect consumers searching for

expensive products online to be even more sophisticated.”).
32 MULTI TIME MACHINE V. AMAZON.COM

The majority hypothesizes, without any evidence to

support it, that a reasonable jury could infer that initial

interest confusion is possible here because consumers might

view these search results and wonder whether a competitor

has acquired MTM or is otherwise affiliated with MTM. 

There is no evidence in the record that anyone, anywhere, has

ever labored under the mistaken impression that Luminox or

the other brands offered are in any way, shape, or form

affiliated with MTM. Moreover, to establish likelihood of

confusion, MTM must show that confusion is likely, not just

possible. See Murray, 86 F.3d at 861.

MTM argues that in order to eliminate the likelihood of

confusion, Amazon must change its search results page, so

that it explains to customers that it does not offer MTM

watches for sale before suggesting alternative watches to the

customer. “No MTM, Luminox” is essentially what MTM

says is required. I disagree. The search results page makes

clear to anyone who can read English that Amazon only

carries the brands of watches that are clearly and explicitly

listed on the web page. The search results page is

unambiguous.

In light of the clear labeling Amazon uses on its search

results page, no reasonable trier of fact could conclude that

Amazon’s search results page would likely confuse a

reasonably prudent consumer accustomed to shopping online

as to the source of the goods being offered. See Playboy,

354 F.3d at 1030 n.44 (Clear labeling “might eliminate the

likelihood of initial interest confusion that exists in this

case.”); Network Automation, 638 F.3d at 1154 (same). 

Therefore, summary judgment of MTM’s trademark claims

was appropriate.
MULTI TIME MACHINE V. AMAZON.COM 33

MTM attempts to argue that summary judgment of its

claims is inappropriate because there are numerous factual

disputes related to Amazon’s search results page. But, to the

extent there are any factual disputes between the parties, none

of them are material to the analysis. MTM cannot dispute the

fact that the watches at issue all sell for hundreds of dollars. 

Therefore, as a matter of law, the relevant consumer would be

a reasonably prudent consumer accustomed to shopping

online. See Tabari, 610 F.3d at 1176; Network Automation,

638 F.3d at 1152–53. Further, MTM cannot dispute the

contents of the web page at issue. A review of Amazon’s

web page shows that each product listed for sale is clearly

labeled with the product’s name and manufacturer and a

photograph, and none of the products are labeled with

MTM’s mark. Thus, the undisputed facts show that it is

highly unlikely that a reasonably prudent consumer

accustomed to shopping online would be confused as to the

source of the goods offered for sale on Amazon’s web page.

It is true that likelihood of confusion is often a question

of fact, but not always. In a case such as this, where a court

can conclude that the consumer confusion alleged by the

trademark holder is highly unlikely by simply reviewing the

product listing/advertisement at issue, summary judgment is

appropriate. Cf. M2 Software, 421 F.3d at 1085 (explaining

that summary judgment of a trademark claim is appropriate

where the plaintiff has failed to present “sufficient evidence

to permit a rational trier of fact to find that confusion is

‘probable,’ not merely ‘possible’”). Indeed, in the similar

context of evaluating allegations of consumer deceptionwhen

dealing with false advertising claims, we have at least twice

concluded – after a review of the label or advertisement at

issue – that there was no likelihood of consumer deception as

a matter of law because no reasonable consumer could have
34 MULTI TIME MACHINE V. AMAZON.COM

been deceived by the label/advertisement at issue in the

manner alleged by the plaintiff. See, e.g., Davis v. HSBC

Bank, 691 F.3d 1152, 1162 (9th Cir. 2012); Freeman v. Time,

Inc., 68 F.3d 285, 289–90 (9th Cir. 1995).

II.

In light of Amazon’s clear labeling of the products it

carries, by brand name and model, accompanied by a

photograph of the item, no rational trier of fact could possibly

find that a reasonablyprudent consumer accustomed to online

shopping would likely be confused by the Amazon search

results. I would hold that the district court correctly granted

summary judgment in favor of Amazon, or as John Belushi

might have put it, “No reversal. Affirm.”