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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...

Zango, Inc. v. Kaspersky Lab, Inc.

Case No. C07-0807-JCC (W.D. Wash., August 28, 2007)

Court holds that Section 230 of the Communications Decency Act (“CDA”) immunizes distributor of anti-virus and security software from claims of tortuous interference with contract, trade libel and unjust enrichment arising out of its distribution of software that labels plaintiff Zango’s software as malware, and enables a user to block or disable it.  Zango provides consumers free access to online videos, games and music in exchange for their agreement to the display of sponsors’ advertisements.  Notably, the Court holds defendant entitled to such immunity notwithstanding claims that it acted in bad faith when it so labeled plaintiff’s software.  According to the Court, ‘good faith’ is not a prerequisite to immunity under section 230(c)(2)(b) of the CDA.  All that is required is that a provider of an “interactive computer service” take “action  … to enable or make available to … others the technical means to restrict access to” material  “the provider or user considers … objectionable,” a standard defendant met.

The Court also held that it could exercise personal jurisdiction over the non-resident defendant in Washington as a result of its sale of software products to Washington residents which allegedly caused plaintiff injury in the forum.
 Plaintiff Zango is a company that provides consumers ‘free’ access to online games, videos and music in exchange for their agreement to the display of sponsors’ advertisements.  A premium version of Zango’s software provides the same access without the advertisements.

Defendant Kaspersky Lab Inc. (“Kaspersky”) distributes anti-virus and security software.  These products designate Zango’s software as malware, and provide users with the option of interfering with its operation, including completely blocking its installation.

Claiming its products were not ‘malware,’ Zango commenced suit, charging defendant with tortuous interference with contractual rights, trade libel and unjust enrichment.

Defendant moved to dismiss for want of personal jurisdiction.  The Court denied this motion, because “Kaspersky USA purposely directed itself at the forum by knowingly selling its blocking software directly to Washington residents and plaintiff’s alleged harm arises out of these alleged sales.”

The Court nonetheless dismissed plaintiff’s claims, holding them barred by application of Section 230(c)(b)(2) of the Communications Decency Act.  The court began its analysis by noting that the purpose of the CDA “to encourage the development of technologies which maximize user control over what information is received by individuals, families, and schools who use the Internet and other interactive computer services.”

Section 230(c)(b)(2) provides immunity to an “interactive computer service” that takes “action  … to enable or make available to … others the technical means to restrict access to” materials “the provider or user considers … objectionable.”
 The Court held that Kaspersky qualified as an “interactive computer service” within the meaning of the CDA because it allowed multiple users of its software to access its servers to obtain updates that provide protection against the latest viruses.  Said the Court:

End-users install the Kaspersky Software on their computers.  They then utilize the Kaspersky software to reach out to remote server and obtain content regarding the newest malware threats.  This type of access is sufficient to qualify as an interactive computer service under the broad reading that the courts have repeatedly given that term.

Because Kaspersky made available to its users software that permitted them to block material Kaspersky deems objectionable, it qualified for the protections of the CDA and dismissed plaintiff’s claims.

In reaching this result, the Court rejected plaintiff’s contention that Kaspersky was not entitled to such immunity because it acted in bad faith in designating plaintiff’s software as ‘malware’ “as part of a[n alleged] scare campaign intended to generate additional interest in Defendant’s software.”  To establish immunity under Section 230(c) (2)(b), held the Court, defendant need not establish that it acted in good faith. 

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