GOOGLE INC., Plaintiff, v. AMERICAN
BLIND & WALLPAPER FACTORY, INC., et al., Defendants. AMERICAN BLIND &
WALLPAPER FACTORY, INC., Counterclaimant, v. GOOGLE INC., et al.,
Counter-Defendant/ Third-Party
Defendants.
Case Number C 03-05340 JF, [Docket Nos.
36 and 37]
UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF CALIFORNIA, SAN JOSE DIVISION
March 30, 2005, Decided
PRIOR HISTORY: Google Inc. v. Am. Blind
& Wallpaper Factory, Inc., 2004 U.S. Dist. (N.D. Cal., Apr. 8, 2004)
COUNSEL: [*1] For Google Inc., a
Delaware corporation, Plaintiff: Michael H. Page, Mark A. Lemley, Ravind Singh
Grewal, Keker & Van Nest, LLP, San Francisco, CA.
For American Blind & Wallpaper
Factory, Inc., a Delaware corporation doing business as Decoratetoday.com,
Inc., Defendant: David A. Rammelt,
Dawn Beery, Susan Greenspon, Kelley Drye
& Warren LLP, Chicago, IL; Robert Nathan Phillips, Howrey Simon Arnold
& White, LLP, San Francisco, CA.
For Earthlink, Inc., Ask Jeeves, Inc.,
3rd party defendants: Michael H. Page, Ravind Singh Grewal, Keker & Van
Nest LLP, San Francisco, CA.
For Compuserve Interactive Services,
Inc., Netscape Communications Corporation, America Online, Inc., 3rd
party defendants: Stephen E. Taylor, Taylor & Company Law Offices, Inc.,
San Francisco, CA.
For American Blind & Wallpaper
Factory, Inc., a Delaware corporation, Counter-claimant: Robert Nathan
Phillips, Howrey Simon Arnold & White, LLP, San Francisco, CA.
For Google Inc., a Delaware corporation,
Counter-defendant: Michael H. Page, Ravind Singh Grewal, Keker & Van Nest,
San Francisco, CA.
JUDGES: JEREMY FOGEL, United States
District Judge.
OPINIONBY: JEREMY FOGEL
OPINION: ORDER GRANTING IN PART AND
DENYING [*2] IN PART COUNTER-DEFENDANT'S AND THIRD-PARTY DEFENDANTS' MOTIONS TO
DISMISS
Counter-Defendant Google Inc.
("Google") and Third-Party Defendants Ask Jeeves, Inc. ("Ask
Jeeves"), Earthlink, Inc. ("Earthlink"), America
Online, Inc. ("AOL"), Netscape
Communications Corporation ("Netscape"), and Compuserve Interactive
Services, Inc. ("Compuserve") (collectively
"Defendants") move to dismiss
the counterclaims and third-party claims of Counterclaimant American Blind
& Wallpaper Factory, Inc. ("American Blind") pursuant to Federal
Rule of Civil Procedure 12(b)(6) for failure to state a claim upon which relief
can be granted. n1 American Blind opposes the motions. The Court has read the
moving and responding papers and has considered the oral arguments of counsel
presented on September 17, 2004. For the reasons set forth below, the motions
to dismiss will be granted in part and denied in part.
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n1 Two separate motions to dismiss are
before the Court: (1) a motion by Google, Ask Jeeves, and Earthlink to dismiss
American Blind's counterclaims and third-party claims and (2) a motion by AOL,
Netscape, and Compuserve to dismiss American Blind's third-party claims. AOL,
Netscape, and Compuserve adopt and incorporate by reference the arguments set
forth in the motion by Google, Ask Jeeves, and Earthlink.
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I. BACKGROUND
Google filed the instant action for
declaratory relief on November 26, 2003, seeking a judicial determination that
its "Adwords" advertising program does not infringe American Blind's
trademarks. On April 12, 2004, the Court denied American Blind's motion to
dismiss the complaint or, in the alternative, to stay proceedings in the case.
On May 4, 2004, American Blind answered Google's complaint and asserted
counterclaims against Google and third-party claims against Ask Jeeves,
Earthlink, AOL, Netscape, and Compuserve for trademark infringement and
dilution, false representation, injury to business reputation, unfair
competition, tortious interference with prospective business advantage, and, in
the alternative, contributory trademark infringement and dilution. Now before
the Court are Defendants' motions to dismiss American Blind's counterclaims and
third-party claims. American Blind's allegations are as follows:
American Blind is a direct-to-consumer
retailer of custom window treatments and wall coverings. It sells and promotes
its home decorating products and related services across the United States
through a Web site n2 and toll-free telephone numbers. A [*4] significant
amount of American Blind's business is conducted through its Web site, which it
has operated since 1997. n3 It estimates that its Web site receives more than
30,000 visits per day and processes more than 400,000 transactions per year.
Since at least 1986, American Blind has used the names and marks "American
Blind" and "American Blinds" in connection with its products and
services. In addition, American Blind is the owner of and has exclusive rights
to use the following trademarks, which are registered with the United States
Patent and Trademark Office: "American Blind & Wallpaper
Factory," "American Blind Factory," and
"DecorateToday." n4 As a result of extensive advertising and
promotion and annual revenues in excess of $ 100 million, American Blind
alleges that its products and services sold under the American Blind Marks n5
have acquired a fine reputation and are famous among prospective purchasers of
home decorating products and related services in the United States.
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n2 American Blind owns over a dozen
Internet domain names, including www.americanblind.com, www.americanblindandwallpaper.com, and
www.americanblindandwallpaperfactory.com. [*5]
n3 American Blind has spent over $ 10
million developing its Web site, spends over $ 1 million per year maintaining,
enhancing, and updating its Web site, and employs over fifty full-time
employees in connection with its Internet operations.
n4 The registration dates for these
trademarks are December 17, 1996, November 3, 1987, and July 17, 2001,
respectively.
n5 Hereinafter, the term "American
Blind Marks" refers collectively to the names and marks "AMERICAN
BLIND" and "AMERICAN BLINDS" and to American Blind's three
registered trademarks.
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Google operates an Internet search
engine, which allows Internet users to locate Web sites that match the "keywords,"
or search terms, they enter. A search engine uses algorithms to process the
keywords and produce a search-results page that displays links to the Web sites
in the search engine's database that match the keywords. Links to the Web sites
usually are displayed in order of decreasing relevance, with the most relevant
Web sites listed first. Google's free search engine processes hundreds of
millions of searches daily and covers billions [*6] of Web pages.
In addition, Google offers a
keyword-triggered advertising program called "AdWords." AdWords
enables advertisers to purchase or bid on certain keywords.
Then, when an Internet user enters those
keywords in Google's search engine, the program generates links, known as
"Sponsored Links," to the advertisers' Web sites. Sponsored Links
appear at the top and on the margins of Google's search-results pages. American
Blind alleges that, in many instances, the search-results pages "are
designed so that the
Sponsored Link' display is inconspicuous
or otherwise not apparent," and "it is not apparent who exactly
sponsors' these links." Counterclaims P 39. Whenever an Internet user
clicks on a Sponsored Link, the corresponding advertiser must pay Google. According
to American Blind, Google has reported that ninety-six percent of its net
revenues in the first quarter of 2004 were derived from advertising. Google
also offers a feature called "AdWords Keyword Suggestions," which
recommends additional keyword purchases to its advertising customers to
"help you improve your ad relevance." Id. P 45 & Ex. B. The
suggestions are organized into categories by Google and sometimes are [*7]
referred to as "optimization campaigns."
Through AdWords, Google has sold to
American Blind's competitors keywords comprised, in whole or part, of the
American Blind Marks, including "American Blind," "American
Blinds," and "Americanblinds.com," and these sales have
continued over American Blind's objections.
Thus, when an Internet user enters these
keywords in Google's search engine, Sponsored Links to the competitors' Web
sites appear on the search-results page. Moreover, through its AdWords Keyword
Suggestions feature, Google actively and deliberately encourages American
Blind's competitors to purchase as keywords both the American Blind Marks and
"virtually every conceivable, though indistinguishable, iteration of those
marks." Id. P 45. For example, an advertiser who is considering purchasing
the keyword "American Blind" is encouraged also to purchase the
keywords "american blinds," "american blinds and
wallpaper," and "american blinds and wallpaper factory," among
others. Google has labeled the optimization campaign containing these
suggestions as the "American Blind optimization campaign."
American Blind alleges that the intended
result of AdWords is to divert consumers [*8] who wish to find American Blind's
products and services to search-results pages that list the Web sites of
American Blind's competitors. That is, Google sells and its advertisers
purchase the possibility of intercepting American Blind's potential customers,
who may click on the links to the Web sites of American Blind's competitors
without realizing that they are being directed to a competitor's Web site or
who may eventually recognize the diversion but either fail to search for or be
forced to spend time and energy searching for American Blind's Web site. Google
has the technological capacity to block the purchase of keywords and in fact,
for over four years, operated under a policy pursuant to which it would
exercise its discretion to block the purchase of certain keywords once it was
advised that a company had purchased as a keyword another company's trademark.
n6 Google changed
its policy sometime after January 27,
2004, when American Blind filed a lawsuit against Google in the United States
District Court for the Southern District of New York. According to American
Blind, Google's new policy is not to disable Sponsored Links when advertisers
have purchased keyword triggers that [*9] are trademarked terms.
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n6 American Blind alleges that Google
falsely represented at one point that it was blocking competitors from
purchasing American Blind's registered trademarks as keywords.
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Ask Jeeves, Earthlink, AOL, Netscape,
and Compuserve (collectively "the non-Google Defendants") operate Web
sites that include an Internet search engine. They pay Google to access its
Web-searching platform and thus display "similar, if not virtually the
same, results of search queries as those displayed by Google." Id. P 68.
They also profit each time an Internet user clicks on "any of the links
provided by these search results." n7 Id.
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n7 Although the meaning of this
statement is not entirely clear, it reasonably may be inferred from the broader
context of the counterclaims, including the specific allegations against
Google, that American Blind alleges that the non-Google Defendants profit when
Internet users click on the Sponsored Links or their equivalent and not when
they click on literally "any of the links" displayed on a given
search-results page.
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Although American Blind has not given
Defendants permission or a license to use the American Blind Marks for the
promotion or sale of the products and services of its competitors, it alleges
that Defendants are capitalizing illegally on the American Blind Marks by
permitting and encouraging American Blind's competitors to purchase keywords n8
that cause links to the competitors' Web sites to be listed "in a position
above or next to" the link to American Blind's Web site when Internet
users enter search terms "identical or substantially similar to the
American Blind Marks." Id. P 71. American Blind further alleges that "confusion"
regarding sponsorship, authorization, and/or source of the links n9 and
"diversion" of Internet users to the Web sites of American Blind's
competitors are the "intended result[s]" of Defendants' manner of
listing search results. Id. P 73. Internet users' ability to distinguish
between Sponsored Links and links to American Blind's Web site allegedly is
compromised not only by Defendants' use of the label "Sponsored
Links," n10 without explanation that the Sponsored Links actually are paid
advertisements unaffiliated with American Blind, but also [*11] by Defendants'
failure to display Sponsored Links in a different color, typeface, or font size
from that used to display other links. Defendants and their advertisers --
rather than American Blind -- are said to be profiting from their use of the
American Blind Marks, while American Blind suffers harm to its sales,
reputation, customer relationships, and
marks.
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n8 Although American Blind levels this particular
allegation against all Defendants, its specific factual allegations regarding
the sale of and profit from the American Blind Marks as keywords are much more
detailed with respect to Google than they are with respect to the non-Google
Defendants.
n9 American Blind elaborates that
"Defendants' search engines are deceptive and mislead consumers into
believing falsely that the website links to which they are directed via
manipulated search results' links are sponsored or authorized by and/or originating
from American Blind" and that the "manipulated search results'
engineered by the Defendants fail to inform the consumers that the companies
listed therein may have no relationship with -- and, indeed, may directly
compete with American Blind -- the trademark owner for which the user was
searching." Id. PP 75-76. [*12]
n10 Although Defendants explain that
some of them use a different term to label their keyword-triggered
advertisements, the Court will use the term "Sponsored Links" to
refer to all such links displayed by all Defendants.
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II. LEGAL STANDARD
A complaint may be dismissed for failure
to state a claim upon which relief can be granted for one of two reasons: (1)
lack of a cognizable legal theory or (2) insufficient facts under a cognizable
legal theory.
See Conley v. Gibson, 355 U.S. 41,
45-46, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957); Robertson v. Dean Witter Reynolds,
Inc., 749 F.2d 530, 533-34 (9th Cir. 1984).
For purposes of a motion to dismiss, all
allegations of material fact in the complaint are taken as true and construed
in the light most favorable to the nonmoving party. Clegg v. Cult Awareness
Network, 18
F.3d 752, 754 (9th Cir. 1994). Although
the Court generally may not consider any material beyond the pleadings when
ruling on a motion to dismiss pursuant to Federal Rule of Civil Procedure
12(b)(6), Cooper v.
Pickett, 137 F.3d 616, 622 (9th Cir.
1997), [*13] it may consider documents that are attached to and part of the
complaint, Durning v. First Boston Corp., 815 F.2d 1265, 1267 (9th Cir. 1987).
A complaint should not be dismissed "unless it appears beyond doubt the
plaintiff can prove no set of facts in support of his claim that would entitle
him to relief." Clegg, 18 F.3d at 754. However, the Court "is not
required to accept legal conclusions cast in the form of factual allegations if
those conclusions cannot reasonably be drawn from the facts alleged." Id.
at 754-55. Motions to dismiss generally are viewed with disfavor under this
liberal standard and are granted rarely. See Gilligan v. Jamco Dev. Corp., 108
F.3d 246, 249 (9th Cir. 1997).
III. DISCUSSION
A. Trademark Infringement, Dilution,
False Representation, Unfair Competition, and Injury to Business Reputation
Defendants move to dismiss American
Blind's claims of trademark infringement, n11 false representation, n12 and
dilution n13 under the Lanham Act, dilution and injury to business reputation
n14 and unfair
competition n15 under the California
Business and Professions Code, and trademark [*14] infringement and unfair
competition under California common law on the ground that American Blind has
not alleged actionable trademark "use." See 15 U.S.C. § 1114(1)(a) (proscribing
particular "use in commerce" of registered mark); 15 U.S.C. §
1125(a)(1) (proscribing particular "use[] in commerce" of false
designation of
origin, false or misleading description
of fact, or false or misleading representation of fact); 15 U.S.C.§ 1125(c)
(proscribing particular "commercial use in commerce" of famous mark);
Playboy Enters., Inc. v.
Netscape Communications Corp., 354 F.3d
1020, 1024 n.10 (9th Cir. 2004) (declining to examine California trademark
claims separately because they are " substantially congruent'" to
trademark claims under the Lanham Act); Brookfield Communications, Inc. v. West
Coast Entm't Corp., 174 F.3d 1036, 1047 n.8 (9th Cir. 1999)
(observing that analysis under sections 32 and 43(a) of the Lanham Act
oftentimes is identical,
even though the latter provision
protects against a wider range of practices than the former); Sunset House
Distrib. Corp. v. Coffee Dan's, Inc., 240 Cal. App. 2d 748, 50 Cal. Rptr. 49,
52 (Ct. App. 1966)
[*15] (requiring, among other things,
allegation of defendant's "use of a confusingly similar tradename" to
state claim for trade name unfair competition under California law).
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n11 Section 32(1) of the Lanham Act
creates civil liability for "[a]ny person who shall, without the consent
of the registrant . . ., use in commerce any reproduction, counterfeit, copy,
or colorable imitation of a registered mark in connection with the sale,
offering for sale, distribution, or advertising of any goods or services on or
in connection with which such use is likely to cause confusion, or to
cause mistake, or to deceive." 15
U.S.C. § 1114(1)(a). American Blind alleges that "the unauthorized and
willful use of copies, variations, reproductions, simulations or colorable
imitations of [its]registered marks in connection with the sale of keyword
advertising" constitutes such trademark infringement. Counterclaims P 91.
n12 Section 43(a) of the Lanham Act
creates civil liability for "[a]ny person who, on or in connection with
any goods or services, . . . uses in commerce . . . any false designation of
origin, false or misleading
description of fact, or false or
misleading representation of fact" that "is likely to cause
confusion, or to cause mistake, or to deceive as to the affiliation,
connection, or association of such person with another person, or as to the
origin, sponsorship, or approval of his or her goods, services, or commercial
activities by another person." 15 U.S.C. § 1125(a)(1). American Blind
alleges that "the use of copies, variations, reproductions, simulations or
colorable imitations of the American Blind Marks on and in connection with
keyword advertising" constitutes a false designation of origin and false
description and representation. Counterclaims P 96.
Specifically, Defendants' use is alleged
to "convey[] the misleading commercial impression to the public that the
advertisers other than American Blind listed in the Defendants' manipulated
search results' pages, or their products, are approved by, sponsored by or are
[sic] somehow affiliated or connected with American Blind." Id. P 95.
[*16]
n13 Section 43(c) of the Lanham Act
provides civil remedies for a "person's commercial use in commerce of a
mark or trade name, if such use begins after the mark has become famous and
causes dilution of the
distinctive quality of the mark."
15 U.S.C. § 1125(c). American Blind alleges that Defendants' use of
"copies, variations, reproductions, simulations or colorable imitations of
the American Blind Marks in connection with the advertising, offering for sale
and sale of Defendants' keyword advertising services" constitutes
dilution. Counterclaims P 100.
Specifically, Defendants' use is alleged
to have lessened the capacity of the American Blind Marks to distinguish
American Blind's products and services from those of others and to have diluted
the distinctive quality of the American Blind Marks.
n14 Section 14330 of the California
Business and Professions Code provides a civil remedy for "[l]ikelihood of
injury to business reputation or of dilution of the distinctive quality of a
mark registered under this chapter, or a mark valid at common law, . . .
notwithstanding the absence of competition between the parties or the absence
of confusion as to the source of goods or services." Cal.
Bus. & Prof. Code § 14330. American
Blind alleges that Defendants' "unauthorized use . . . of copies,
variations, reproductions, simulations or colorable imitations of . . . the
American Blind Marks in connection with the advertising, offering for sale and
sale of Defendants' keyword advertising services" constitutes dilution and
injury to American Blind's business reputation. Counterclaims P 105. [*17]
n15 Section 17200 of the California
Business and Professions Code prohibits "any unlawful, unfair or
fraudulent business act or practice and unfair, deceptive, untrue or misleading
advertising and any act prohibited by Chapter 1 (commencing with Section 17500)
of Part 3 of Division 7 of the Business and Professions Code." Cal. Bus.
& Prof. Code § 17200.
American Blind alleges that Defendants'
"unauthorized use . . . of copies, variations, reproductions, simulations
or colorable imitations of . . . the American Blind Marks in connection with
the advertising, offering for sale and sale of Defendants' keyword advertising
services" constitutes unfair competition. Counterclaims P 110.
Specifically, Defendants' use is alleged to be "misleading in a material
respect" and to "dilute or tarnish American Blind's business
reputation and/or the effectiveness of the . . . American Blind Marks."
Id. PP 110-11.
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In support of their argument that
American Blind has not alleged -- and cannot allege -- that they have used the
American Blind Marks in a manner that is [*18] cognizable under the trademark
laws, Defendants
cite a number of authorities from other
circuits that either state or can be read to suggest that a defendant is not
engaged in the requisite "use" of a trademark or other mark unless
the defendant uses the mark to identify the source of its own goods or
services. Among them are (1) Interactive Products Corp. v. a2z Mobile Office
Solutions, Inc., in which the United States Court of Appeals for the Sixth
Circuit identified as a "preliminary question" in a trademark case
"whether defendants are using the challenged mark in a way that identifies
the source of their goods" and held that if the defendants are using the
trademark only "in a non-trademark' way – that is, in a way that does not
identify the source of a product -- then trademark infringement and false
designation of origin laws do not apply," n16 Interactive Prods.Corp. v.
a2z Mobile Office Solutions, Inc., 326 F.3d 687, 695 (6th Cir. 2003)(emphasis
added); (2) U-Haul International, Inc. v.
WhenU.com, Inc., in which the United
States District Court for the Eastern District of Virginia found that there was
no trademark "use" under the Lanham [*19] Act, because, among other
things, there was no
evidence that the defendant "use[d]
[the plaintiff's] trademarks to identify the source of its goods or
services," U-Haul Int'l, Inc. v. WhenU.com, Inc., 279 F. Supp. 2d 723, 728
(E.D. Va. 2003) (emphasis added); and (3) Wells Fargo & Co. v. WhenU.com,
Inc., in which the United States District Court for the Eastern District of
Michigan held that "[t]here can be no liability under the Lanham Act
absent the use of a trademark in a way that identifies the products and
services being advertised by the defendant," Wells Fargo & Co. v.
WhenU.com, Inc., 293 F. Supp. 2d 734, 757 (E.D. Mich. 2003) (emphasis added).
n17 Relying on
these authorities, n18 Defendants argue
that American Blind's claims that are premised on trademark "use"
must be dismissed, because American Blind does not --and cannot -- allege that
Defendants use the American Blind Marks to identify the source of their own
search engines or advertising products.
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n16 Although Interactive Products
involved a question as to whether the defendant's use of the plaintiff's
trademark in the post-domain path of one of the defendant's Web pages signified
the source of either the Web page or the product offered for sale therein, the
court ultimately decided the case on the basis of lack of evidence of
likelihood of confusion rather than on the basis of trademark "use."
See Interactive
Prods. Corp. v. a2z Mobile Office
Solutions, Inc., 326 F.3d 687, 698 (6th Cir. 2003). [*20]
n17 Both U-Haul and Wells Fargo, as well
as a third case, 1-800 Contacts, Inc. v. WhenU.com, 309 F. Supp. 2d 467
(S.D.N.Y. 2003), involved trademark disputes arising from the pop-up
advertisements generated by WhenU.com's computer software program,
"SaveNow." SaveNow contained a "directory of commonly used
search phrases, commonly visited web addresses, and various keyword
algorithms," and it functioned by scanning an Internet user's activity to
"determine whether any of the terms, web addresses, or content match[ed]
the information in the directory." U-Haul, 279 F. Supp. 2d at 725-26. When
it found a match, SaveNow "identifie[d] an associated product or service
category" and then, if appropriate, displayed a pop-up advertisement on
the user's computer screen. Id. At 726. The particular advertisement that was
displayed was selected at random from the advertisements that matched the
"category of the user's activity." Id.
WhenU.com ("WhenU") sold
"advertising space and opportunities" to merchants but did not sell
"individual web addresses" or "guarantee to any advertiser that
its ad [would] be shown when a consumer visit[ed] a particular website."
Id. The plaintiffs in U-Haul, Wells Fargo, and 1-800 Contacts brought claims
for trademark violations under the Lanham Act, among other things, based on
SaveNow's display of competitors' pop-up advertisements when Internet users
searched for the plaintiffs' Web sites.
The U-Haul court granted summary
judgment in favor of WhenU as to the trademark claims, finding that WhenU's
pop-up advertisements did not constitute "use in commerce" of the
plaintiff's trademarks. See id. at
727. It reasoned that WhenU's
incorporation of the plaintiff's trademarks into the SaveNow directory did not
constitute trademark "use" under the Lanham Act, because, among other
things, there was no evidence that WhenU "use[d] [the plaintiff's]
trademarks to identify the source of its goods or services," and WhenU
"merely use[d] the marks for the pure machine-linking function' and in no
way advertise[d]
or promote[d]" the plaintiff's
trademarks. Id. at 728. Similarly, the Wells Fargo court denied the plaintiffs'
motion for a preliminary injunction, in part based on its conclusion that WhenU
did not "use"
the plaintiffs' marks in commerce. See
Wells Fargo, 293 F. Supp. 2d at 757. It found that the inclusion of the
plaintiffs' marks in the SaveNow directory did not constitute trademark
"use," because WhenU did not "use any of the plaintiffs'
trademarks to indicate anything
about the source of the products and
services it advertise[d]." Id. at 762. In contrast, the 1-800 Contacts
court, in ruling on the plaintiff's motion for a preliminary injunction,
concluded that WhenU had used the plaintiff's mark. See 1-800 Contacts, 309 F.
Supp. 2d at 489. Among other things, it found that inclusion of a version of
the plaintiff's mark in the SaveNow directory was a "use" of the mark
"to
advertise and publicize companies that
are in direct competition with Plaintiff." Id. The 1-800 Contacts court
disposed of the contrary findings on "use" in U-Haul and Wells Fargo
in a brief footnote, stating simply that it disagreed with and was not bound by
those decisions. See id. at 490 n.43. [*21]
n18 In addition to urging the Court to
adopt the reasoning of the aforementioned cases, Defendants also make more
general arguments for dismissal drawn from the source-identifying function of
trademarks, see 15 U.S.C. § 1127 (defining the term "trademark" to
include "any word, name, symbol, or device, or any combination
thereof" that is used by a person "to identify and distinguish his or
her goods . . . from those manufactured or sold by others and to indicate the
source of the goods"); New Kids on the Block v. News Am. Publ'g, Inc., 971
F.2d 302, 308 (9th Cir. 1992) (stating that the "purpose of
trademark" is a "source-identification function"), and the
policies behind the trademark laws, see Prestonettes, Inc. v. Coty, 264 U.S.
359, 368, 68 L. Ed. 731, 44 S. Ct. 350,1924 Dec. Comm'r Pat. 508 (1924)
(holding that a trademark "only gives the right to prohibit the use of it
so far as to protect the owner's good will against the sale of another's
product as his"). More recent decisions from the United States Supreme
Court and the United States Court of Appeals for the Ninth Circuit provide a
fuller explanation of the policies and objectives of the trademark laws. See,
e.g., Qualitex Co. v. Jacobson Prods. Co., 514 U.S. 159, 163-64, 131 L. Ed. 2d
248, 115 S. Ct. 1300 (1995) (stating that the "basic objectives" of
trademark law are, "by preventing others from copying a source-identifying
mark, [to] reduce[] the customer's costs of shopping and making purchasing
decisions,' for it quickly and
easily assures a potential customer that
this item --the item with this mark -- is made by the same producer as other
similarly marked items that he or she liked (or disliked) in the past. . . .
[and to] help[] assure a producer that it (and not an imitating competitor)
will reap the financial, reputation-related rewards associated with a desirable
product") (internal citation
omitted); Intel Corp. v.Terabyte Int'l, Inc., 6 F.3d 614, 618 (9th Cir. 1993)
(stating that "[t]rademark policies are designed (1) to protect consumers
from being misled as to the enterprise, or enterprises, from which the goods or
services emanate or with which they are associated; (2) to prevent an
impairment of the value of the enterprise which owns the trademark; and (3) to
achieve these ends in a manner
consistent with the objectives of free competition") (internal quotation
marks omitted).
- - - - - - - - - - - - End Footnotes- -
- - - - - - - - - - - - [*22]
The Court has given careful
consideration to the arguments and authorities presented by Defendants, as well
as to their attempts to analogize this case to non-Internet situations in which
they assert that there would be no question as to the absence of any viable
trademark claims. n19 However, in light of the uncertain state of the law, the
Court does not find Defendants' arguments sufficient to warrant dismissal of
American Blind's counterclaims and third-party claims at the pleading stage. In
particular, given the most relevant Ninth Circuit decision – Playboy
Enterprises, Inc. v. Netscape Communications Corp., 354 F.3d 1020 (9th Cir.
2004) -- it does not appear "beyond doubt" that American Blind
"can prove no set of facts in support of [its] claim[s] that would entitle
[it] to relief," Clegg, 18 F.3d at 754.
- - - - - - - - - - - - - - Footnotes -
- - - - - - -- - - - - - -
n19 Defendants analogize the instant
case to Ford's payment to have Car and Driver magazine run Ford advertisements
facing every Toyota advertisement in order to target Toyota's customers or a
pizzeria owner's handing flyers to customers on their way to Domino's. While it
is of no consequence to the outcome of the instant motions, the Court notes
that, as alleged by American Blind, Defendants themselves would
not be the analogs to Ford and the
pizzeria owner,because they are not alleged to be the advertisers.
- - - - - - - - - - - - End Footnotes- -
- - - - - - -
- - - - - [*23]
In Playboy, the Ninth Circuit reversed a
summary judgment in favor of two companies that operate Internet search
engines, Netscape and Excite, Inc., finding that genuine issues of material
fact precluded
summary judgment on the plaintiff's
claims of trademark infringement and dilution. See Playboy, 354 F.3d at 1022.
The case involved a practice called "keying," whereby advertisers
could target Internet
users with particular interests by
linking their advertisements to certain search terms that were grouped into
lists by the defendants. See id. At 1022-23. When a user entered one or more of
those terms into the search engines, advertisements that were "keyed"
to the terms would appear as "banner ads" running along the top or
side of the search-results page. Id. at 1023. The defendants were paid a fee by
the advertisers for the "keying" service. Id. The list containing
terms related to sex and adult-oriented entertainment, to which the defendants
required adult-oriented companies to link their advertisements, contained two
of the plaintiff's trademarks: "playboy"
and "playmate." Id. The
adult-oriented banner ads often were [*24] graphic in nature, were confusingly
labeled or not labeled at all, and contained buttons reading "click
here" that, when clicked, made the
search-results page disappear and opened
the advertiser's Web site. Id.
In concluding that a genuine issue of
material fact precluded summary judgment as to the claim of trademark
infringement, the Playboy court focused on the element of likelihood of
confusion. n20 See id. at
1024-29. It found adequate evidence of
initial interest confusion n21 in the appearance of unlabeled banner ads --
many of which took users to the advertisers' Web sites when they accepted the
invitation to "click here" -- immediately after users entered the
plaintiff's trademarks as search terms in the defendants' search engines. See
id. at 1025-26.
The court further concluded that the
defendants' alleged "use" of the plaintiff's trademarks – a
"misappropriat[ion]" of the goodwill of the
plaintiff's marks by defendants "in
conjunction with advertisers," whereby Internet users were led to the Web
sites of the plaintiff's competitors – was "actionable." Id.
Accordingly, the court allowed the
case to proceed under theories of [*25]
direct and contributory liability, because the defendants were
"potentially liable" under one theory or the other. n22 Id. at 1024
(observing that the question of
"[w]hether the defendants are
directly or merely contributorily liable proves to be a tricky question").
- - - - - - - - - - - - - - Footnotes -
- - - - - - -- - - - - - -
n20 Likelihood of confusion is the
" core element of trademark infringement.'" Id. at 1024 (quoting
Brookfield Communications, Inc. v. West Coast Entm't Corp., 174 F.3d 1036, 1053
(9th Cir. 1999)).
n21 The term "initial interest
confusion" describes a situation in which, although the consumer does not
experience confusion as to the source of goods or services, the defendant, by
diverting or capturing the consumer's initial attention, improperly benefits
from the goodwill that the plaintiff developed in its mark. Brookfield
Communications, 174 F.3d at 1062-63; see also Playboy, 354 F.3d at 1025
(discussing Brookfield Communications and reaffirming that initial interest
confusion -- "customer confusion that creates initial interest in a competitor's
product . . . [a]lthough dispelled before an actual sale occurs" – is
actionable trademark infringement). The existence of initial interest confusion
does not depend on whether a sale is completed as a result of the confusion.
Brookfield Communications, 174 F.3d at 1062. In Brookfield Communications, the
Ninth Circuit, reviewing the district court's denial of the plaintiff's motion
for a preliminary injunction, concluded that the defendant's use of its
competitor's trademark in the metatags of its Web site was likely to cause
initial interest confusion. See id. at 1066.
Metatags are "HTML code not visible
to Web users but used by search engines in determining which sites correspond
to the keywords entered by a Web user." Id.at 1061 n.23. [*26]
n22 The Playboy court also concluded
that genuine issues of material fact precluded summary judgment as to the claim
of dilution. See id. at 1031. As relevant to the instant case, the court
rejected the defendants' argument that dilution could not be found because they
did not "label their own goods with [the plaintiff's] marks,"
observing that, "[a]ccording to [the plaintiff's] evidence, in the minds
of consumers, defendants implicitly label the goods of [the plaintiff's]
competitors with its marks." Id. at 1033.
- - - - - - - - - - - - End Footnotes- -
- - - - - - -- - - - -
Defendants attempt to distinguish
Playboy on two grounds, neither of which is persuasive for present purposes.
First, they argue that, because the "issue raised by the instant motion --
whether the use of a
trademark as a keyword to trigger
advertising can be actionable under trademark law -- was not before the Playboy
court," Mot. by Google, Ask Jeeves, & Earthlink to Dismiss Countercls.
& Third-Party Claims at 6 n.8, the case is inapposite. Defendants are
correct that the Playboy court did not undertake a separate discussion of the
element of trademark [*27] "use" and that the court observed that
there was "[n]o
dispute" as to whether the
defendants had "used the marks in commerce." Playboy, 354 F.3d at
1024.
However, it is not at all clear that the
court's ultimate conclusion that the defendants' alleged "use" of the
plaintiff's trademarks was "actionable," id. At 1026, was not based
on an implicit, preliminary
determination of actionable trademark
"use" in the sense discussed by Defendants. If the use were not
actionable in the latter sense, it is unclear why the court would have
undertaken a lengthy and, by Defendants' apparent reading of the case, wholly
unnecessary likelihood-of-confusion analysis. n23
Moreover, the possibility of such an
implicit determination does not appear to have been precluded by the court's
observation that there was "[n]o dispute" as to whether the
defendants had "used the marks in commerce," as the accompanying
footnote suggests that the observation concerned only the jurisdictional
requirement of use "in commerce" and
not the separate requirement of
trademark "use." Id. at 1024 (emphasis added); see id. at 1024 n.11
("Federal jurisdiction [*28] over trademark cases rests on the Commerce
Clause, sweeps as broadly as possible, and clearly encompasses the
circumstances of this case.").
- - - - - - - - - - - - - - Footnotes -
- - - - - - -- - - - - - -
n23 Indeed, Defendants themselves, in
the midst of presenting arguments to distinguish Playboy, appear inadvertently
to acknowledge this point: "Instead of addressing trademark use, the
Playboy case involved a classic analysis of likelihood of confusion – an issue
that need only be addressed if, in fact, there is a trademark use." Reply
by Google, Ask Jeeves, & Earthlink at 7.
- - - - - - - - - - - - End Footnotes- -
- - - - - - - - - - - -
Second, Defendants attempt to
distinguish Playboy on the ground that its holding was limited to facts not present
in the instant case. The Playboy court noted that, "if a banner
advertisement clearly identified
its source or, even better, overtly
compared [the plaintiff's] products to the sponsor's own, no confusion would
occur under [the plaintiff's] theory." Id. at 1025 n.16. Elsewhere, the
court reiterated that it was "not addressing a situation in which a banner
[*29] advertisement clearly identifies its source with its sponsor's name, or
in which a search engine clearly identifies a banner advertisement's source,"
noting that those clear identifications
"might eliminate the likelihood of initial interest confusion," and
it emphasized that it was "evaluating a situation in which defendants
display competitors' unlabeled banner advertisements, with no label or overt
comparison to [the plaintiff], after Internet users type in [the plaintiff's]
trademarks." Id. At 1030 & n.43. Defendants assert that, unlike the
banner ads in Playboy, the Sponsored Links clearly identify the sources of the
advertisements and thus cannot result in confusion. However, the distinctions
Defendants attempt to draw between Playboy and the instant case in order to
justify dismissal would require the Court to make factual findings and draw
legal conclusions, particularly with regard to likelihood of confusion, that
are inappropriate when it is ruling on a motion to dismiss under Federal Rule
of Civil Procedure 12(b)(6) ("Rule 12(b)(6)"). In light of the very
liberal standard applicable to Rule 12(b)(6) motions, [*30] the Ninth Circuit's
expansive holding in Playboy, n24 and the obvious commercial importance of this
case to the parties and others similarly situated, the Court concludes that
resolution of the novel legal questions presented by this case should await the
development of a full factual record.
- - - - - - - - - - - - - - Footnotes -
- - - - - - -
- - - - - - -
n24 Defendants call the Court's
attention to Judge Berzon's concurrence in Playboy, which suggests that the
majority opinion is "fully consistent with the applicable precedents"
but "express[es] concern" that one of those precedents -- Brookfield
Communications -- was "wrongly decided" and may need to be
reconsidered. Id. at 1034. Noting the analytical similarity between keyword
advertisements and the
metatags found to be infringing in
Brookfield Communications, Judge Berzon disagrees with any application of
Brookfield Communications that might suggest that there could be a Lanham Act
violation even if banner advertisements were "clearly labeled, either by
the advertiser or by the search engine." Id.
She opines that it is not reasonable
"to find initial interest confusion when a consumer is never confused as
to source or affiliation, but instead knows, or should know, from the outset
that a product or web link is not related to that of the trademark holder
because the list produced by the search
engine so informs him." Id. at 1034-35. Her reasoning is based
non-Internet examples where "distracting a potential customer with another
choice, when it is clear that it is a choice," clearly does not constitute
trademark infringement. Id. at 1035. The examples include a department store's
displaying its own brand of clothing more prominently than a designer brand
that customers may be seeking and a bookstore owner's accepting money from one
adult magazine to display that magazine in front of another such magazine. See
id. Although Judge Berzon's concurrence raises interesting questions for
another day, it does not alter the result the Court must reach in ruling on the
instant motions to dismiss.
- - - - - - - - - - - - End Footnotes- -
- - - - - - -
- - - - - [*31]
Accordingly, Defendants' motions to
dismiss American Blind's claims of trademark infringement, false
representation, and dilution under the Lanham Act, dilution and injury to
business reputation and unfair competition under the California Business and
Professions Code, and trademark infringement and unfair competition under
California common law are DENIED. n25 In so ruling, the Court emphasizes that
it expresses no opinion as to whether Defendants ultimately will prevail in
trying to prove that they are not liable to American Blind on these claims.
This Order should be understood only as allowing American Blind's counterclaims
and third-party claims to proceed beyond the motion-to-dismiss stage, which
will enable the Court to consider both the relevant facts and the applicable
law in the context of a fuller record. n26
- - - - - - - - - - - - - - Footnotes -
- - - - - - - - - - - - - -
n25 AOL, Netscape, and Compuserve appear
to advance an independent ground for dismissal of the third-party claims
asserted against them. They argue that American Blind's allegation that they
are using Google's Web-searching platform but not that they are "engaging in
the other business practices alleged against Google . . . [or] any other
independent wrongdoing" does not "provide a sufficient basis to state
a claim against [them]." Mot. by AOL, Netscape, & Compuserve to
Dismiss Third-Party Claims at 1. Their briefs, however, devote virtually no
space to this assertion.
The Court declines to dismiss the
third-party claims on a basis that has not been briefed adequately. [*32]
n26 Although the Court does not rely
upon it – and thus need not discuss Defendants' attempt to distinguish it --
the Court notes that its approach is consistent with the approach taken by the
United States District Court for the Eastern District of Virginia in Government
Employees Insurance Co. v. Google, Inc., 330 F. Supp. 2d 700 (E.D. Va.
2004)(hereinafter "GEICO"), a case very similar to this one in which
the plaintiff sued Google and Overture Services, Inc., both search engine
operators, for trademark infringement, false representation,
dilution, and unfair competition, among
other things, based on allegations that the defendants are selling its
trademarks as keywords that trigger Sponsored Links. See GEICO, 330 F. Supp. 2d
at 701-02. The
defendants in GEICO appear to have made
the same arguments regarding failure to allege actionable trademark
"use" as Defendants make in the instant case, and the GEICO court
appears to have considered many of the same authorities considered by this
Court. See id. at 702-03. The GEICO court found sufficient allegations of
trademark "use" and denied the defendants' motion to dismiss the
corresponding claims. See id. at 703-04 (observing that a "fair reading of
the complaint reveals that plaintiff alleges that defendants have unlawfully
used its trademarks by allowing advertisers to bid on the trademarks and pay
defendants to be linked to the trademarks"). In so ruling, the court
explained that
the fact-specific issues of whether the
defendants are making fair use of the plaintiff's trademarks and whether there
is a likelihood of confusion are not properly resolved through a motion to
dismiss. See id.at 704. Approximately four months later, on December 15, 2004,
the GEICO court entered an oral ruling granting Google's motion for judgment as
a matter of law, finding that the plaintiff had not established that "the
mere use of its trademark by Google as a search word or keyword or even using
it in their AdWord program standing alone violates the Lanham Act because . . .
there's no evidence that that activity standing alone causes confusion."
Statement of Recent Decision by Google, Ask Jeeves, and Earthlink (Dec.21,
2004), Ex. A at 16 (emphasis added). Portions of the case still remain pending,
and the court has yet to issue a written decision regarding its oral ruling.
- - - - - - - - - - - - End Footnotes- -
- - - - - - -- - - - -
[*33]
B. Contributory Trademark Infringement
and Contributory Dilution
Defendants move to dismiss American
Blind's alternative claims of contributory trademark infringement n27 and
contributory dilution n28 under the Lanham Act. As above, Defendants' arguments
are based on a claimed absence of allegations of the requisite "use"
of the American Blind Marks -- in this context, by Defendants' advertisers. n29
Defendants reason that, because their advertisers are alleged to use the American
Blind Marks only as a trigger for the display of their advertisements and not
as an identification of the source of their products, they do not engage in
trademark "use" of the American Blind
Marks, and therefore, with no direct
violation of the trademark laws, Defendants cannot be contributorily liable.
However, in light of the foregoing discussion, the Court concludes that
American Blind's failure to allege that Defendants' advertisers have used the
American Blind Marks to identify the source of their own products is not fatal
to American Blind's claims at this stage of the case.
- - - - - - - - - - - - - - Footnotes -
- - - - - - -- - - - - - -
n27 "Contributory infringement
occurs when the defendant either intentionally induces a third party to
infringe the plaintiff's mark or supplies a product to a third party with
actual or constructive knowledge that the product is being used to infringe the
service mark." Lockheed Martin Corp. v. Network Solutions, Inc., 194 F.3d
980, 983 (9th Cir. 1999). American Blind alleges, in the alternative, that
"Defendants' acts, namely the inducement of American Blinds' [sic]
competitors to purchase the American
Blind Marks as keywords and the refusal to block or otherwise disable American
Blind's competitors' advertisements that result from searches for the American
Blind Marks
(despite Defendants' knowledge that such
advertisements infringe the American Blind Marks)" constitute contributory
trademark infringement.
Counterclaims P 129. [* 34]
n28 American Blind alleges, in the
alternative, that "Defendants' acts, namely the inducement of American
Blinds' [sic] competitors to purchase the American Blind Marks as keywords and
the refusal to block or otherwise disable American Blind's competitors' advertisements
that result from searches for the American Blind Marks (despite Defendants'
knowledge that such advertisements were being used to dilute the American Blind
Marks)" constitute contributory trademark dilution. Counterclaims P 135.
The Ninth Circuit has observed that, "[a]lthough courts have discussed
contributory dilution, no appellate court or statute has yet established the
cause of action," and that, where it has been recognized, it has been
defined as "encouraging others to dilute." Lockheed Martin, 194 F.3d
at 986. In light of its disposition
of Defendants' motions and in the
absence of any contrary authority, the Court declines to reach the issue at
this time.
n29 The Court does not address
Defendants' argument that American Blind also has failed to allege that
Defendants have done anything "that would qualify as contributory
liability," as the argument was raised for the first time in their reply
brief. Reply by Google, Ask Jeeves, & Earthlink at 13.
- - - - - - - - - - - - End Footnotes- -
- - - - - - -- - - - - [*35]
This result finds support in Brookfield
Communications, where the Ninth Circuit concluded that the defendant's use of
its competitor's trademark in the metatags of its Web site was likely to cause
initial interest confusion. See Brookfield Communications, 174 F.3d at 1066. As
in Playboy, the court's analysis of likelihood of confusion seems to
have presumed a preliminary, if
implicit, determination of actionable trademark "use" in the sense
discussed by Defendants. See supra note 23 and accompanying text. The purchase
of trademarks as keywords for a Web site and the insertion of trademarks as
metatags in the code of a Web site, both of which are employed as means of
having links to that Web site appear on a search-results page, are sufficiently
analogous that it cannot be said that American Blind has failed to allege
actionable
trademark "use" by Defendants'
advertisers. In sum, given the current state of the governing law, American
Blind has made sufficient allegations of direct infringement and dilution by
Defendants' advertisers and contributory liability on the part of Defendants
such that it does not appear "beyond doubt" that American Blind
"can [*36] prove no set of facts in support of [its] claim[s] that would
entitle [it] to relief." Clegg, 18 F.3d at 754. Accordingly, Defendants'
motions to dismiss American Blind's alternative claims of contributory
trademark infringement and contributory dilution are DENIED. n30
- - - - - - - - - - - - - - Footnotes -
- - - - - - -- - - - - - -
n30 As above, the Court emphasizes that
it expresses no opinion as to whether Defendants ultimately will prevail on
these alternative claims.
- - - - - - - - - - - - End Footnotes- -
- - - - - - -- - - - -
C. Tortious Interference with
Prospective Business
Advantage
Defendants move to dismiss American
Blind's state law claim of tortious interference with prospective business
advantage. n31 The elements of tortuous interference with prospective business
advantage are as follows: (1) an economic relationship between the plaintiff
and some third party, with the probability of future economic benefit to the
plaintiff, (2) the defendant's knowledge of the relationship, (3) intentional
acts on the part of the defendant designed to disrupt the relationship, which
acts are wrongful [*37] by some legal measure other than the fact of
interference itself, n32 (4) actual disruption of the relationship, and (5)
economic harm to the plaintiff proximately caused by the defendant's acts.
Korea Supply Co. v. Lockheed Martin Corp., 29 Cal. 4th 1134, 131 Cal. Rptr. 2d
29, 63 P.3d 937, 950-51 (Cal. 2003).
Defendants argue that American Blind
fails to allege an independently wrongful act, as required by the third
element, or probability of future economic benefit from existing economic
relationships, as required by the first element.
- - - - - - - - - - - - - - Footnotes -
- - - - - - -- - - - - - -
n31 American Blind alleges that (1)
"[m]any" of its customers are "repeat customers" and
"regularly" purchase products from its Web site, (2) it is probable
that "such customers and others" will "continue to seek to
visit" the Web site and purchase products and services "in the
future," (3) Defendants were aware of American Blind's "reasonable
expectation of future transactions" with its "returning
customers," as well as with customers who "may be attracted" to
its goods and services because of its goodwill, advertising, and promotion, (4)
"[a]bsent
Defendants' intentional and improper interference
through their deceptive and manipulated search engine results,' it is
reasonably certain that American Blind would realize additional sales from
existing customers and/or new customers," (5) Defendants
"intentionally
and improperly interfered with American
Blind's future and prospective sales," and (6) American Blind has suffered
and will continue to suffer irreparable injury as a result of Defendants'
actions.Counterclaims PP 120-24. [*38]
n32 An act is independently wrongful if
it is "unlawful, that is, if it is proscribed by some constitutional,
statutory, regulatory, common law, or other determinable legal standard."
Korea Supply Co., 63 P.3d at 954.
- - - - - - - - - - - - End Footnotes- -
- - - - - - -
- - - - -
Defendants' first asserted ground for
dismissal of this claim fails, because it rests solely on their argument that
American Blind has not alleged actionable trademark "use," an
argument that the Court already has rejected. As American Blind's claims of
trademark violations, unfair competition, false representation, and injury to
business reputation will proceed past the motion-to-dismiss stage, so too can
those claims serve, for present
purposes, as allegations that satisfy the pleading requirements for the third
element of tortious interference with prospective business advantage.
However, the Court agrees with
Defendants that American Blind's allegations with respect to the first element
of the claim are insufficient. The tort of interference with prospective
business advantage applies to "interference with existing noncontractual
relations which hold the [*39] promise of future economic advantage. In other
words, it protects the expectation that the relationship eventually will yield
the desired benefit, not necessarily the more
speculative expectation that a
potentially beneficial relationship will eventually arise." Westside Ctr.
Assocs. v. Safeway Stores 23, Inc., 42 Cal. App. 4th 507, 49 Cal.
Rptr. 2d 793, 804, 806 (Ct. App. 1996)(holding that, "[w]ithout an
existing relationship with an identifiable buyer, [the plaintiff's] expectation
of a future sale was at most a hope for an economic relationship and a desire
for future
benefit'"); see also Roth v.
Rhodes, 25 Cal. App. 4th 530, 30 Cal. Rptr. 2d 706, 715 (Ct. App.
1994)(holding that, in doctor's lawsuit based on
defendants' refusal to lease offices to
him, doctor failed to allege requisite "existing relationship,"
because future patients were merely "speculative").
Allegations that amount to a mere
"hope for an economic relationship and a desire for future benefit"
are inadequate to satisfy the pleading requirements of the first element of the
tort. Blank v. Kirwan, 39 Cal. 3d 311, 216 Cal. Rptr. 718, 703 P.2d 58, 70
(Cal. 1985).
Even though American Blind has alleged
relationships with "repeat customers" [*40] who
"probabl[y]" will "continue to seek to visit" its Web site
and purchase its goods and services, Counterclaims P 120, American Blind's
alleged expectation of "future and prospective sales" to these
customers, id. P 123, with which Defendants are alleged to have interfered, is
too speculative to support this claim. It does not rise to the level of the
requisite "promise of future economic advantage," Westside Ctr.
Assocs., 49 Cal. Rptr. 2d at 804 (emphasis added), instead expressing merely a
"hope . . . and a desire" for unspecified future sales to unspecified
returning customers, Blank, 703 P.2d at 70, in the form of a legal conclusion.
Moreover, it goes without saying that American Blind's even more speculative
allegations regarding "new" customers with whom it cannot claim any
past or present interactions, however insubstantial, also are inadequate to
support this claim. American Blind has failed to point to any case law
suggesting that its allegations regarding the probability of future economic
benefit from its existing economic relationships with third parties are
sufficient. Accordingly, Defendants' motions to dismiss [*41] American Blind's
claim of tortious interference with prospective business advantage are GRANTED.
n33
- - - - - - - - - - - - - - Footnotes -
- - - - - - -
- - - - - - -
n33 Because the Court has granted
Defendants' motions to dismiss on this ground, it need not address their
argument that the claim is barred by section 230 of the Communications Decency
Act.
- - - - - - - - - - - - End Footnotes- -
- - - - - - -- - - - -
IV. ORDER
Good cause therefore appearing, IT IS
HEREBY ORDERED that the motions to dismiss by Counter-Defendant Google and
Third-Party Defendants Ask Jeeves, Earthlink, AOL, Netscape, and Compuserve are
(1)GRANTED as to American Blind's claim of tortuous interference with
prospective business advantage and (2) DENIED as to American Blind's other
claims.
DATED: March 30, 2005
JEREMY FOGEL
United States District Judge