Standing the Test of Time: Likelihood of Confusion in Multi Time Machine v. Amazon

Part I of this note tracks the development of intent and the tort of palming off in trademark law and judicial rhetoric. Part II explains how Amazon's business model creates negative externalities for competitors and consumers akin to those that trademark law traditionally aims to deter. Part III discusses the Ninth Circuit's analysis, using the Sleekcraft factors and the court's more recent, reasonably-prudent-consumer formulation. Part IV argues that a multifactor likelihood of confusion test preserves deliberation and the historical construct of trademark infringement as a tort. Using the early-twentieth-century trade morals that motivated the Lanham Act, courts can craft the correct incentives for new technologies. In Multi Time Machine v. Amazon, a three-judge panel from the Ninth Circuit struggled once again to apply the brick-and-mortar doctrines of trademark law to an online context. This time, the court's bete noire reappeared in questions about the multifactor, so-called Sleekcraft test.