This trademark infringement case against Amazon is a great example of the importance of understanding the user.
MTM said it could be harmed because a potential buyer might be confused and believe there’s some affiliation between the company and the products listed, leading consumers to buy competitors’ watches.
When users search Amazon for the “MTM Special Ops watch” they get a list of watches. But none of them are from MTM. Amazon doesn’t carry those. Instead, Amazon presents a list of the most similar watches that they do sell. On first take, that seems reasonable. Users get something similar to what they want and Amazon still gets the sale. Win-win.
But not so fast. There is a loser here – MTM. And they are not thrilled about the situation. Even more significantly, they make an important point about the design of the search results. Other search engines start the list out with a statement such as “We don’t carry that model, but here are some similar watches you might be interested in.” Amazon does not. This is deceptive according to MTM.
Is it possible that users might think that the watches on the list are indeed MTM Special Ops watches? When at the beginning of the purchase funnel, users might not know the names or labels of specific models. They could easily be misled into believing that this list contains models of the watch. After all, they typed in the query “MTM Special Ops watch” and this is what Amazon is showing them.
And here is where the law gets interesting. The purpose of trademark law is to prevent user confusion. One company can’t use the trademark of another company in a way that might confuse users into thinking that their product or brand is the same as one from another company. The stereotypical example is creating a name that sounds similar for a similar product, such as we talked about here. In that case, we had to decide if “Skype” and “Sky” could be confused if they are both used as the names of apps related to telecommunications.
In this case, Amazon is “using” MTM’s trademark in their search algorithm, even though they are not presenting it on the screen. In fact, they are intentionally NOT presenting it. But, according to MTM, with the result of confusing the user into thinking that this list of watches are MTM Special Ops. Or at least some of the users might be confused.
The judges on the lower court threw the case out. They didn’t think that users would be confused. Then the Appeals Court did something interesting. The recognized that they were not qualified to decide what users might think because they are not typical users. One of the core principles of our legal system is that decisions of fact are made by juries of one’s peers. So rather than decide that users could be confused OR that users could not be confused, they ruled that a jury has to decide. They sent the case back to the lower court and told them to retry the case with a jury.
Does that sound like user-centered design? User testing? Wow, what a concept !!
I am not sure I am the target customer for MTM Special Ops watches and I am positive that I know more about how search engine algorithms work. So I am even less able than the judges to decide if users could be confused. I have been doing search engine research for decades. I am not sure how many of you would consider yourself thus.
But feel free to take a guess.
- Chime in with your prediction – will the jury decide that users can be confused?
- Or imagine you are on the jury and give us your verdict – would the target consumer be confused?
I will post a summary of the results once we get a sufficient sample size.
Image Credit: Documentally