As e-commerce businesses have taken off, so have more issues arose relating to use of others’ intellectual property. We’ve already talked about how intellectual property like trademarks can be a delicate situation between businesses trying to protect their rights but trying to avoid upsetting their customers.

So-called patent trolling (generally speaking, this is where a company holds patents but doesn’t use them other than to try to get licensing fees from other companies) has been around for a while, but more recently, we have been seeing what could be called a form of trademark trolling. Basically, these are instances of trademark owners bullying other businesses, not really to prevent consumer confusion, but more so to end some kind of competitive business practice they don’t like (usually against direct competitors or companies selling their competitors’ products).

Take a look at this case between Multi Time Machine, Inc. and Amazon. Here, we have a watchmaker, who does not sell its watches on Amazon.com, suing Amazon for presenting consumers who search for their watches on Amazon.com (usually by entering searches like “mtm special ops”) with results of watches that are similar to MTM. (MTM has registered trademarks for MTM Special Ops and MTM Spec Ops.) Additionally, MTM was unhappy that Amazon failed to indicate to these customers that no results were found when searching for MTM products.

Naturally, Amazon wants to have the appearance of a store that has everything someone could want available for sale, and when it doesn’t have exactly what you were looking for, it wants to offer you the closest product to it. The court in this case referenced the situation where someone at a restaurant asks for a Coke and is instead offered a Pepsi. After all, is the situation in this case that different from walking into a department store and asking for a particular brand watch and the salesperson directing you to similar watches? Whether they tell you they don’t have that specific brand or not, you would probably figure it out pretty quickly by the absence of the brand name you were looking for on the products you were shown and the existence of different brand names in their place. Or perhaps the internet is different from this example, and companies like Amazon are trying to confuse customers into purchasing their alternatives under the guise of being made by MTM. Either way, the primary concern in trademark law is whether or not there is a likelihood of consumers being confused.

Ultimately, the court did not find MTM’s arguments persuasive and determined that there was no likelihood of confusion between MTM’s products and Amazon’s alternative offerings as search results. However, MTM appealed the case to the 9^th Circuit, who recently heard oral argument on the matter.

Trademark rights are designed to prevent consumer confusion in the marketplace. We don’t want consumers to be confused about who makes the product they are buying, so we don’t let companies use the same or confusingly similar names on their products, especially if they are selling similar products.

If your business is thinking about using another company’s trademark, even for comparative or other purposes, it is a good idea to talk it over with a knowledgeable attorney. If you need help regarding trademarks, do not hesitate to reach out to the Law Office of E.C. Lewis, P.C., home of your Denver Business Attorney, Elizabeth Lewis, at 720-258-6647 or email her at elizabeth.lewis@eclewis.com.