Edit 3/20/2016: In response to the petition for rehearing described below, the Ninth Circuit reversed its position and issued a new decision in favor of Amazon’s motion to dismiss. MTM sought Supreme Court review, which was denied. The matter now seems resolved.
Earlier this year the Ninth Circuit Court of Appeals issued a troubling ruling in Multi Time Machine v. Amazon.com. If allowed to stand this ruling will raise the risk for ecommerce and other online (and even potentially offline) businesses that their normal and reasonable operation might be found to infringe trademarks, even though such a finding would seem to be far beyond what the Lanham Act, which governs trademarks, actually allows. In light of this unexpectedly and untenably heightened legal risk I filed an amicus brief at the Ninth Circuit on behalf of Rebecca Tushnet and other intellectual property professors in support of Amazon’s petition that this earlier ruling be reconsidered.