Amazon Draws Support In Battle Over Search Engine Results

Digital rights groups Electronic Frontier Foundation and Public Citizen are warning that a recent court decision dealing with Amazon's search engine could have "wide-ranging ramifications" on free speech online.

The organizations are asking the 9th Circuit Court of Appeals to reconsider its 2-1 ruling, issued earlier this month.

The ruling stemmed from a dispute between watch manufacturer Multi-Time Machine and Amazon. Multi-Time Machine, which sells $2,000 watches under names like “MTM Special Ops” and “MTM Military Ops,” argued that Amazon should change the way it returns results to people who search for timepieces on the site.

The watch company -- which doesn't sell merchandise on Amazon -- contends that Amazon's current search function tricks consumers by returning links to different watch brands, like Luminox and Chase-Durer in response to searches for MTM.

A trial judge dismissed the watch company's allegations, but a three-judge panel of the 9th Circuit recently revived some of the claims.

That panel agreed with the trial judge that Multi-Time Machine didn't provide evidence showing that any consumers who made purchases were confused about what they were buying.

Despite that fact, the judges ruled that Amazon potentially infringed trademark by causing so-called "initial interest confusion," which they described as confusion that "creates initial interest in a competitor's product."

"Even if that confusion is dispelled before an actual sale occurs, initial interest confusion still constitutes trademark infringement," the judges wrote. The ruling sent the case back to the district court for trial.

Amazon is now asking for a rehearing in front a larger, 11-judge panel of the 9th Circuit.

Public Citizen and the EFF are backing that request, arguing that companies have drawn on the concept of "initial interest confusion" to attempt to suppress online speech.

That controversial concept "enables the owners of trademarks to seek judicial rulings that keep information about competing products, and even criticisms of the trademark holder and its products, out of search engine listings where consumers can find them," the groups argue.

"Such information might be just as useful to search engine users as the information found on the trademark owner’s own web site; it might even be what the search engine users hoped to find."

Multi-Time Machine must respond by Aug. 12 to the request for a new hearing.

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