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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...

Children of America, Inc. v. Edward Magedson, et al.

CV 2007-003720 (D. Ariz., October 24, 2007)

Court holds that the Communications Decency Act (“CDA”), 47 U.S.C. Section 230(c)(1), mandates dismissal of so much of plaintiff’s defamation claim that arises from the publication by third parties of comments critical of plaintiff on a website defendants operate known as the “”  The CDA further mandates dismissal of claims arising out of defendants’ promotion of its site and the allegedly objectionable content thereon, making the site more accessible to search engines and users, or soliciting contributions to assist in making the information on the site available.  The Court did , however, allow plaintiff to pursue defamation claims arising out of the headlines for third party content authored by the defendants, which themselves purportedly contained defamatory content.

Defendants are the owners and operators of the “,” a website which publishes and makes available to the public complaints about businesses authored by third parties.  Complaining about critical content found on the site, plaintiff Children of America, Inc. brought this suit, charging defendants with defamation. 

Defendants moved to dismiss, asserting that plaintiff’s claims were barred by the Communications Decency Act.  The Court granted in part, and denied in part defendants’ motion. 

The Court held that the CDA provides a defense to a party accused of defamation to the extent the content giving rise to such a claim is authored or provided by a third party.  However, the defendant is exposed to a defamation claim for that portion of the content it authored, such as its headline.  Said the Court:

“Under the statutory scheme, an ‘interactive computer service’ qualifies for immunity so long as it does not also function as an ‘information content provider’ for the portion of the statement or publication at issue.’ Carafano v., Inc., 339 F.3d 1119 (9th Cir. 2003).  But the mere fact that the website contains the unaltered comments of its users does not constitute a complete defense if Defendants create content which is itself actionable.

Applying this test, the Court dismissed so much of plaintiff’s claims that rested on content authored by third parties, or defendants’ promotion of the same.  However, to the extent plaintiff’s claims rested on content authored by the defendants, even if part of the same article, plaintiff was free to pursue such claims.  Such claims were only limited to the content authored by the defendants.  Said the Court:

[T]he court concludes that Defendants cannot as a matter of law face liability for their provision of access to the comments created by users.  Nor can they face liability for their actions in promoting the site, organizing its content, making the contents more accessible on search engines or soliciting contributions of content.  But plaintiff alleges more:  “Defendants edit and/or author the headlines that accompany posted complaints …”  Dismissal is inappropriate with respect to those statements (and only those statements) alleged to have been authored by Defendants.

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