"No Coke, Pepsi"

|The Volokh Conspiracy |

(NBC Photo)
John Belushi. (NBC Photo)

A very interesting trademark case from the Ninth Circuit today, Multi Time Machine, Inc. v. Amazon, with a majority opinion by Judge Carlos Bea, and a dissenting opinion by Judge Barry Silverman that begins:

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 wristwatch—specifically the "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: …

Read the opinion for the rest of the argument, though this should be enough to give you a sense of the issue: MTM claims that, when users search on Amazon for MTM Special Ops watches (which Amazon doesn't carry), Amazon shows them MTM's competitors, and the users might be at least initially misled into thinking that those competitors are actually linked to MTM. Here is Judge Bea's response from the majority:

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.

[Footnote: 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." But it is only sort of like the Belushi scenario, because unlike Belushi's "No Coke," Amazon does not say "No MTM."]

Thanks to How Appealing for the pointer.