Dan Aykroyd, Bill Murray and John Belushi are working in a restaurant. Jane Curtin walks in and orders two cheeseburgers. Belushi yells at the cook, “Cheezborger, cheezborger.” Curtin then orders a Coke. Belushi responds, “No Coke. Pepsi.”
The scene is one of the classics from “Saturday Night Live,” and it is also how Judge Barry Silverman begins his dissent in the U.S. Court of Appeals for the Ninth Circuit’s decision, Multi Time Machine v. Amazon.com, 2015 U.S. App. LEXIS 11554 (9th Cir. Cal. July 6, 2015). Multi Time Machine (MTM) is a high-end watch company that manufacturers the MTM Special Ops watch. Amazon sells many watches, but not the MTM Special Ops, nor, for that matter, any watch manufactured by MTM. The two parties are in court, litigating over what happens when a customer looks for “MTM Special Ops” on Amazon’s website, and finds a competitor’s product. Silverman is describing the “Saturday Night Live” skit because he is trying to make an analogy between “No Coke. Pepsi” and what happens when a customer is looking for one product that isn’t there in the first place, and is offered another instead. Judge Carlos Bea, however, who wrote the majority opinion, doesn’t think the analogy is quite right.
