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Designer Skin LLC v. S & L Vitamins, Inc., et al.
Unauthorized internet reseller of plaintiff’s products is not guilty of trademark infringement, and does not cause actionable initial interest confusion, by using plaintiff’s trademarks in meta tags of website at which plaintiff’s and its competitors’ products are sold, and in..., LLC v. Google, Inc.

Case No. C 06-2057 JF (RS) (N.D. Ca., March 16, 2007)

Court dismisses action seeking redress as a result of Google’s alleged downward manipulation of the “Page Rank” it assigned plaintiff’s website.  This act allegedly reduced the ranking of plaintiff’s search engine in various Google Search results which, in turn, adversely impacted both the traffic and advertising revenue plaintiff’s site generated.  “Page Rank” is a system offered by Google for rating the usefulness of websites.  Google’s search engine utilizes the relative “Page Ranks” it assigns to websites in determining the order in which to deliver responsive search results to a user’s query. 

In its Second Amended Complaint, plaintiff claimed such acts constituted violations of the Sherman Antitrust Act, the Lanham Act and California Business and Professions Code Section 17200, as well as plaintiff’s right to free speech under both the Federal and California constitutions.  Plaintiff also alleged that it was defamed by Google’s alleged statement that the low “Page Rank” it assigned plaintiff’s site was arrived at objectively, without human manipulation.

The Court found that had failed to state a claim, and accordingly dismissed its complaint with prejudice.

Plaintiff’s Sherman Antitrust Act claims failed because plaintiff did not allege a “relevant market” Google purportedly attempted to monopolize, an essential prerequisite to such a claim.  Because the Sherman Act only applies to attempts to monopolize ‘a group of sales,’ the ‘Search Market’ alleged by plaintiff as the relevant market did not qualify, because users are not paid to search.  Plaintiff’s alternative, the ‘Search Ad Market’ similarly failed because it was too narrow.  There was no basis for distinguishing the Search Ad Market from other Internet advertising.  The Court held that plaintiff’s Second Amended Complaint failed to set forth a number of additional necessary elements of a Sherman Act claim.

Plaintiff’s Lanham Act claim failed because the alleged misrepresentation on which it rested – that Google falsely represented that its “Page Ranks” were the objective result of the operation of its algorithms – did not cause plaintiff any injury.  Rather, it was the low Page Rank assigned to plaintiff’s site which purportedly caused injury.  As such, held the Court, plaintiff lacked standing to bring its Lanham Act claim.  This claim also failed because a “Page Rank” was not a statement in “commercial advertising or promotion” another prerequisite to a claim for false advertising under the Lanham Act.

Plaintiff’s free speech claims failed both because of the absence of State action in the conduct of Google challenged here – its assignation and description of “Page Ranks” – and because Google’s search engine was not a “public forum” in which websites such as plaintiff were permitted to speak.  Rather, it was akin to private property, free from free speech concerns.

Finally,’s libel claims failed because Google’s “Page Rank” was not an actionable statement of fact, but rather a construct of Google’s.  Said the Court:

Kinderstart’s argument that it is mathematically impossible to assign a Page Rank of zero presumes that Google in some way has represented that Page Rank is a purely objective measure.  As discussed above, PageRank is a creature of Google’s invention and does not constitute an independently-discoverable value.  In fact, Google might choose to assign PageRanks randomly, whether as whole number or with many decimal places, but this would not create “incorrect” PageRanks.

These claims also failed because Google’s statements were protected by applicable ‘common interest privilege,’ codified in California as Cal. Civil Code Section 47(c).  This privilege affords protection to statements made “without malice, to a person interested therein … (3) who is requested by the person interested to give the information.”

The Court held Google’s provision of the “Page Rank” of plaintiff’s site to users was protected by this privilege from defamation claims, at is constituted information requested by the user.  To obtain this information, the user had to download a Google tool bar, visit a website, and use the tool bar to supply the site’s “Page Rank.”  The Court held that this constituted a request for information, and rendered Google’s response privileged.

In an attempt to recover the legal fees it incurred in the defense of this action, Google also moved to strike plaintiff’s complaint under California’s anti-SLAPP statute, Cal. Civil Code Section 425.16.  The speech at issue – the Page Rank assigned to plaintiff’s site – was neither made to the government, nor involved an issue under government consideration.  As such, to be entitled to the protection of the anti-SLAPP statute, the speech must concern a matter of public interest.  The Court held the speech at issue was not a matter of public interest because it only dealt with the appropriate ranking of plaintiff’s site – an issue that was not of interest to most of the public at large.  The Court accordingly denied Google’s motion to strike and its related motion for attorney’s fees.

In a separate decision, the Court did award Google Rule 11 sanctions as a result of several of the allegations advanced by plaintiff in its pleading.

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