Sad, bad and not unexpected news via the Cert Pool Blog: There will be no Supreme Court review of Multi Time Machine, Inc. v. Amazon.com, Inc., et al., 792 F. 3d 1070 (9th Cir. 2015), in which the Ninth Circuit opinion appeared to have revived the dread doctrine of initial interest confusion (“IIC”) in trademark law.
I wrote about the the case at considerable length here in July of 2015, but it got even more confusing when, in October of 2015, the same court reversed itself and said, well, no, never mind, no confusion here, forget it, Amazon wins!
As Rebecca Tushnet explains in that last link, while the reasoning of the opinion is all but an admission of how stupid IIC is, its existence is apparently regarded as canon law, or perhaps a virus, in the Ninth Circuit; either way, “the majority notes in a footnote, a panel can’t get rid of IIC,” so there it is. As explained by TechDirt:
[T]he real fun is how the court reversed itself. Paul Alan Levy has a nice write up of the details, but essentially one of the judges simply switched teams.
The panel has now reversed itself in an opinion by Circuit Judge Barry Silverman, the author of the original dissenting opinion, and affirmed the lower court’s grant of summary judgment. In dissent, Circuit Judge Carlos Bea (the author of the now-discarded majority opinion) angrily charges that the majority “sub silentio overrules this court’s ‘initial interest confusion’ doctrine.”The third judge, Gordon Quist, had originally sided with Bea, but upon review appears to have decided that he did so in error and now joins the new majority in favor of Amazon. Courtroom drama, does it get any better?
Unfortunately, however, now it appears that the Supreme Court won’t be fixing any of it — that is, fixing IIC — at least for now.