Justia U.S. 9th Circuit Court of Appeals Opinion Summaries

The Internet Corporation for Assigned Names and Numbers (ICANN) creates and assigns top level domains (TLDs), such as “.com” and “.net.” Plaintiff, a registry specializing in “expressive” TLDs, filed suit alleging that the 2012 Application Round for the creation of new TLDs violated federal and California law. The district court dismissed the complaint. The court rejected plaintiff's claims for conspiracy in restraint of trade or commerce under section 1 of the Sherman Act, 15 U.S.C. 1, because plaintiff failed to allege an anticompetitive agreement; the court rejected plaintiff's claim under Section 2 of the Sherman Act, because ICANN’s authority was lawfully obtained through a contract with the DOC and did not unlawfully acquire or maintain its monopoly; the trademark and unfair competition claims were not ripe for adjudication because plaintiff has not alleged that ICANN has delegated or intends to delegate any of the TLDs that plaintiff uses; and the complaint failed to allege a claim for tortious interference or unfair business practice. Accordingly, the court affirmed the judgment. View "name.space, Inc. V. ICANN" on Justia Law

MTM filed suit against online retailer Amazon under the Lanham Act, 15 U.S.C. 1051 et seq., alleging that Amazon had infringed MTM's trademark. MTM argues that initial interest confusion might occur because Amazon lists the search term used – here the trademarked phrase “mtm special ops” – three times at the top of its search page. The district court granted summary judgment in favor of Amazon. The court considered five non-exhaustive Sleekcraft factors to determine whether a trademark gives rise to a likelihood of confusion: the strength of the mark, relatedness/proximity of the goods, evidence of actual confusion, defendant’s intent, and the degree of care exercised by purchasers. The court concluded that there are genuine issues of material fact as to whether there is a likelihood of confusion under the initial interest confusion theory. Finally, the court held that the customer-generated use of a trademark in the retail search context is a use in commerce. In this case, Amazon's purpose is not less commercial just because it is selling wares, not advertising space. Therefore, the court declined to affirm the district court on the alternative ground that Amazon’s use is not a use in commerce. Accordingly, the court reversed and remanded. View "Multi Time Machine v. Amazon.com" on Justia Law

Plaintiff, an aspiring model, filed a failure to warn suit against Internet Brands, the company who owns the website modelmayhem.com. Plaintiff had posted information about herself on the website and two rapists used the website to lure her to a fake audition where they drugged her, raped her, and recorded her for a pornographic video. The district court dismissed plaintiff's action because her claim was barred by the Communications Decency Act (CDA), 47 U.S.C. 230(c). The court held that section 230(c)(1) precludes liability that treats a website as the publisher or speaker of information users provide on the website. This section protects websites from liability for material posted on the website from someone else. In this case, plaintiff does not seek to hold Internet Brands liable as a "publisher or speaker" of content someone posted on modelmayhem.com, or for Internet Brands' failure to remove content on the website. Plaintiff also does not claim to have been lured by any posting that Internet Brands failed to remove. Instead, plaintiff attempts to hold Internet Brands liable for failing to warn her about how third parties targeted and lured victims through the website. The duty to warn allegedly imposed by California law would not require Internet Brands to remove any user content or otherwise affect how it publishes such content. Therefore, the CDA does not bar plaintiff's failure to warn claim and the CDA was not a valid basis to dismiss the complaint. Accordingly, the court reversed and remanded.View "Doe v. Internet Brands, Inc." on Justia Law

Plaintiffs, small business owners, filed a class action suit alleging that Yelp, an online forum, extorted or attempted to extort advertising payments from them by manipulating user reviews and penning negative reviews of their businesses. Plaintiffs filed suit against Yelp for violations of California's Unfair Competition Law (UCL), Cal. Bus. & Prof. Code 17200 et seq.; civil extortion; and attempted civil extortion. The district court dismissed the suit for failure to state a claim. The court concluded that Yelp's manipulation of user reviews, assuming it occurred, was not wrongful use of economic fear, and that the business owners pled insufficient facts to make out a plausible claim that Yelp authored negative reviews of their businesses. Therefore, the court agreed with the district court that these allegations did not support a claim for extortion. The court held that, to state a claim of economic extortion under both federal and California law, a litigant must demonstrate either that he had a pre-existing right to be free from the threatened harm, or that the defendant had no right to seek payment for the service offered. Given these stringent standards, plaintiffs failed to sufficiently allege that Yelp wrongfully threatened economic loss by manipulating user reviews. None of the business owners have stated a claim of "unlawful" conduct on the basis of extortion. Therefore, the court dismissed the separate claims of civil extortion and attempted civil extortion. Further, plaintiffs' UCL claim failed under the "unfair" practices prong. Accordingly, the court affirmed the judgment of the district court.View "Levitt v. Yelp! Inc." on Justia Law

Plaintiff filed suit on behalf of himself and a putative class of consumers whose Touchpad orders had been cancelled, alleging that Barnes & Noble had engaged in deceptive business practices and false advertising. On appeal, Barnes & Noble challenged the district court's denial of its motion to compel arbitration against plaintiff under the arbitration agreement contained in its website's Terms of Use. The court held that there was no evidence that the website user had actual knowledge of the agreement. The court also held that where a website makes its terms of use available via a conspicuous hyperlink on every page of the website but otherwise provides no notice to users nor prompts them to take any affirmative action to demonstrate assent, even close proximity of the hyperlink to relevant buttons users must click on - without more - is insufficient to give rise to constructive notice. Therefore, the court concluded that there is nothing in the record to suggest that those browsewrap terms at issue are enforceable by or against plaintiff, much less why they should give rise to constructive notice of Barnes & Noble's browsewrap terms. In light of the distinguishing facts, the district court did not abuse its discretion in rejecting Barnes & Noble's estoppel argument. Accordingly, the court held that plaintiff had insufficient notice of Barnes & Noble's Terms of Use, and thus did not enter into an arbitration agreement. The court affirmed the judgment of the district court.View "Nguyen v. Barnes & Noble Inc." on Justia Law

Plaintiffs filed suit against Zynga and Facebook under the Wiretap Act, 18 U.S.C. 2511(3)(a), and the Stored Communications Act, 18 U.S.C. 2702(a)(2), two chapters within the Electronic Communications Privacy Act of 1986 (ECPA). Plaintiffs alleged violations of the ECPA based on Facebook and Zynga's disclosure of the information contained in referer headers to third parties. On appeal, plaintiffs argued that the district court erred in holding that Facebook, Zynga, and the third parties were the intended recipients of the referer headers containing the user's Facebook IDs and the URLs. The court held that under the ECPA, the term "contents" refers to the intended message conveyed by the communication, and does not include record information regarding the characteristics of the message that is generated in the course of the communication. The referer header information that Facebook and Zynga transmitted to third parties included the user's Facebook ID and the address of the webpage from which the user's HTTP request to view another webpage was sent. This information does not meet the definition of "contents," because these pieces of information are not the "substance, purport, or meaning" of a communication. Therefore, the court concluded that plaintiffs have failed to state a claim because they did not allege that either Facebook or Zynga disclosed the "contents" of a communication, a necessary element of their ECPA claims. Accordingly, the court affirmed the district court's dismissal with prejudice. View "In re: Zynga Privacy Litigation" on Justia Law

Plaintiff appealed the dismissal of his putative class action alleging that ebay.com's Automatic Bidding system breached two provisions of eBay's User Agreement, violated California's Unfair Competition Law (UCL), Cal. Bus. Prof. Code 17204, and constituted intentional interference with prospective economic advantage. The court concluded that the district court properly dismissed plaintiff's claim for breach of contract where the two provisions at issue in the User Agreement did not constitute an enforceable promise by eBay. The court also concluded that plaintiff failed to state a claim under the UCL where, even if the User Agreement had represented that eBay would directly transmit bids to sellers, plaintiff has not plausibly alleged that he relied on this representation. Moreover, since a reasonable person in plaintiff's position could not have relied on such a representation, it would not have been material. Finally, the court concluded that plaintiff failed to set forth a claim for intentional interference with prospective economic advantage. Accordingly, the court affirmed the judgment of the district court. View "Block v. Ebay, Inc." on Justia Law

After plaintiff purchased a background check and report from Intelius on the Internet, plaintiff discovered that Adaptive, a separate company from Intelius, had been charging his credit card each month for a Family Safety Report. Plaintiff and others filed suit against Intelius in state court. Intelius then filed a third-party complaint against Adaptive. Adaptive filed a motion to compel arbitration of both Intelius's and plaintiff's claims. The court held that plaintiff did not enter into a contract with Adaptive to purchase the Family Safety Report, and did not enter into a contract with Adaptive to arbitrate. Therefore, the court affirmed the district court's denial of the motion to compel. The court remanded for further proceedings. View "Lee v. Intelius Inc." on Justia Law

Petronas is a major oil and gas company located in Kuala Lumpur, Malaysia and GoDaddy is the world's largest domain name registrar. After a third party registered the domain names "petronastower.net" and "petronastowers.net" and then used GoDaddy's domain name forwarding service to direct the disputed domain names to an adult entertainment web site, Petronas filed suit against GoDaddy alleging contributory cybersquatting under the Anticybersquatting Consumer Protection Act, 15 U.S.C. 1125(d). The district court granted summary judgment in favor of GoDaddy. The court affirmed, holding that the Act did not include a cause of action for contributory cybersquatting because: (1) the plain text of the Act did not apply to the conduct that would be actionable under such a theory; (2) Congress did not intend to implicitly include common law doctrines applicable to trademark infringement because the Act created a new cause of action that was distinct from traditional trademark remedies; and (3) allowing suits against registrars for contributory cybersquatting would not advance the goals of the statute. View "Petronas v. GoDaddy.com" on Justia Law

Plaintiffs filed suit against Google under the Wiretap Act, 18 U.S.C. 2511, after the antennas and software installed in Google's Street View cars collected basic identifying information transmitted by Wi-Fi networks, as well as gathered and stored "payload data" that was sent and received over unencrypted Wi-Fi connections. On appeal, Google challenged the district court's denial of its motion to dismiss based on the Wiretap Act's exemption for electronic communication that was readily accessible to the general public. The court held that the phrase "radio communication" in section 2510(16) excluded payload data transmitted over a Wi-Fi network. Consequently, the definition of "readily accessible to the general public [] with respect to a radio communication" in section 2510(16) did not apply to the exemption for an "electronic communication" that was "readily accessible to the general public" under section 18 U.S.C. 2511(2)(g)(i). The court also held that payload data transmitted over an unencrypted Wi-Fi network was not "readily accessible to the general public" under the ordinary meaning of the phrase as it was used in section 2511(2)(g)(i). Accordingly, the court affirmed the district court's judgment. View "Joffe v. Google, Inc." on Justia Law