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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...

Dating Services - Internet Library of Law and Court Decisions - Updated April 30, 2008

339 F.3d 1119 (9th Cir., August 13, 2003)

Ninth Circuit holds that operator of online dating service is immunized by the Communications Decency Act ("CDA") from defamation, invasion of privacy, misappropriation of right of publicity and negligence claims arising out of the unauthorized posting on defendant's website by a third party of a fictitious dating profile.  This profile contained fictitious information about plaintiff, an actress, as well as accurate contact information and photographs of her.  This information was posted in response to a form questionnaire prepared by defendant to which all users of its service had to respond.

207 F. Supp. 2d 1055 (C.D. Cal., March 11, 2002), aff'd. on other grds., 339 F.3d 1119, No. 02-55658 (9th Cir., August 13, 2003)

Court grants motion of defendants and Lycos for summary judgment, and dismisses claims of invasion of privacy, defamation, misappropriation of right of publicity and negligence brought against them by plaintiff Carafano, an actress.  These claims arose out of the posting of a dating profile by a third party on the defendants' Matchmaker website, which profile allegedly contained fictious information about plaintiff, as well as accurate contact information and photographs of her.  This information was posted in response to a form questionnaire prepared by defendants to which site members had to respond.

The court rejected defendants' argument that plaintiff's claims were barred by application of Section 230 of the Communications Decency Act.  While the defendants were "interactive service providers" within the meaning of the statute by virtue of their operation of the Matchmaker website, defendants were not entitled to the statute's protection because of the role they played in originating the content in question.  Such protections are available only as to claims arising out of information provided by an information content provider other than the defendant.  The court barred defendants from using the CDA as a shield because the information in question was posted in response to a questionnaire prepared by defendants.

Nonetheless, the court dismissed each of the claims raised by plaintiff against defendants.  Plaintiff's invasion of privacy claim failed because the information in question, her address, was "newsworthy," making its publication non-actionable.  The defamation claim was dismissed because, given plaintiff's status as a public figure, she could not show that defendants acted with actual malice in publishing the statements in question, a prerequisite to such a claim.  Such malice was absent because defendants were unaware of the information contained in "plaintiff's" profile at the time it was posted to defendants' site by a third party, and thus did not entertain any serious doubt as to its truth at the time it was published.  Plaintiff's misappropriation of right of publicity and negligence claims failed for the same reason, plaintiff's inability to establish that defendants acted with the requisite actual malice.

SCNY 3034/05 (N.Y. Civ. Crt., November 9, 2005)

Court finds that the defendant Internet dating service Great Expectations, also known as GE Management Group of N.Y., Inc., violated New York’s Dating Services Law, General Business Law Section 394(c), by charging two clients $1000 and $3790, respectively, pursuant to contracts which failed to promise to provide either client with a specified number of social referrals per month.  In such situations, held the Court, New York’s Dating Services Law only permits the clients to be charged $25 for ‘social referral services’.  As a result, the Court awarded each client damages in an amount equal to the payments they made to Great Expectations, or $1000 and $3790 respectively.  In reaching this result, the Court found that the Dating Services Law applied to Great Expectations even though it only provided the means, via the Internet, for clients to contact each other, but apparently did not actually refer clients to one another.  Finally, the Court held that Great Expectations was subject to New York’s Dating Services Law because GE Management Group of N.Y., Inc., the entity that contracted with plaintiffs, was a New York business, and the transactions in question occurred in New York.

502 F.Supp. 2d 719, Case No. 3:07 CV 604 (N.D. Ohio, August 22, 2007)

Court holds that the Communications Decency Act (“CDA”), 47 U.S.C. Section 230, immunizes operator of online adult dating service from claims arising out of a user’s false statement in her user-profile that she was over 18.  Relying on this profile, plaintiff met and had consensual sexual relations with a minor, for which he was subsequently arrested.  Plaintiff brought this suit, seeking redress.  Importantly, the contract between the parties expressly provided that does not “assume any responsibility for verifying the accuracy of the information provided by other users of the Service.”  Because plaintiff sought to hold, a provider of Interactive Computer Services, liable for its publication of content authored by another, his claims, whether couched as breach of contract, fraud or negligent misrepresentation, were barred by application of the CDA.  Plaintiff’s breach of contract claim similarly failed because SexSearch did not assume responsibility for verifying the age of users.

Quick Hits

Robert Anthony v. Yahoo! Inc.
421 F.Supp.2d 1257 (N.D. Ca. March 17, 2006)

Court holds that Communications Decency Act does not bar fraud and negligent misrepresentation claims advanced against Yahoo as a result of its alleged creation of false user profiles.  These false user profiles were allegedly included in online dating services Yahoo operates to cause users such as plaintiff to sign-up for, or renew their subscriptions to, the service.   The Court further held that the Communications Decency Act did not bar claims that asserted that Yahoo falsely represented to subscribers that various expired user profiles were in fact still current in an effort to cause them to continue their subscriptions.  Said the Court:

Anthony alleges that Yahoo creates false profiles, not merely fails to delete them. ... In addition, Anthony claims that Yahoo sends users false profiles for the purpose of luring them into renewing their subscriptions. ... No case of which this court is aware has immunized a defendant from allegations that it created tortious content. ... If, as Anthony claims, Yahoo manufactured false profiles, then it is an 'information content provider' itself and the CDA does not shield it from tort liability.  In addition, the CDA does not defeat Anthony's allegations that Yahoo sent 'profiles of actual legitimate former subscribers whose subscriptions had expired and who were no longer members of the service, to current members of the service.  Admittedly, third parties created there profiles.  Nevertheless, the CDA only entitles Yahoo not to be 'the publisher or speaker' of the profiles.  It does not absolve Yahoo from liability for any accompanying misrepresentations.  Because Anthony posits that Yahoo's manner of presenting the profiles - not the underlying profiles themselves - constitute fraud, the CDA does not apply.

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Michael Cohn v. Truebeginnings, LLC, et al.
B190423 (Cal. Crt. App., July 31, 2007)

Court held that plaintiff, by clicking a “continue” icon in the course of completing a user profile for an online dating service, was bound by the site’s Terms of Use, available via a hyperlink on the webpage he was viewing.  The “continue” icon appeared at the foot of the initial webpage the user saw in the course of completing his profile, and just to the right of a sentence that read “I am 18 years old and I have read and agree to the True Terms of Use and Code of Ethics.”  The phrase ‘Terms of Use’ were linked to the site’s Terms of Use, which appeared in a pop-up window when a user clicked on this link.  The Terms of Use advised the user that “once you click on the ‘continue’ button at the end of this sign-up form, you are agreeing to be bound by the Terms of this Agreement.”

Importantly, the Court found plaintiff bound despite his claim that he was not asked to agree to be bound by the Terms of Use as part of the sign-up process.  This evidence was effectively refuted by that supplied by the defendant, which demonstrated that all users, to obtain a profile, must click the ‘continue’ icon.

Similarly, the fact that the Terms were available via a hyperlink did not prevent plaintiff from being bound thereby.  Said the Court:

Respondents presented substantial evidence that appellant had to click on the ‘continue’ button in order to register for his trial membership on the Web site, and that doing so constituted an agreement to the ‘Terms of Use’ on the Web site.  Appellant may not have read the ‘Terms of Use’ but they were readily available to him on the Web site if he clicked on the ‘Terms of Use’ link near the ‘Continue’ button.  Under these circumstances, where appellant obviously had access to the Internet and was entering into a contract on the Internet, there was nothing inherently unfair in requiring him to access contractual terms via hyperlink, which is a common practice in Internet businesses.  The trial court did not abuse its discretion in finding that appellant agreed to the forum selection clause contained in the ‘Terms of Use.’

The Appellate Court nonetheless reversed the lower court’s decision, which had dismissed plaintiff’s claims because of the forum selection clause contained in True’s Terms of Use.  The clause in question, held the Appellate Court, only provided that disputes arising out of a party’s use’s online dating service may be brought in the Texas.  Because this clause did not mandate that such suits must brought in Texas, the lower court needed to analyze, under traditional forum non conveniens analysis, whether California or Texas was the appropriate forum in which the suit should proceed.  The forum selection clause at issue provided “you agree to personal jurisdiction by and venue in the State of Texas and the U.S. District Court for the Northern District of Texas.”  The case was remanded to the lower court for the performance of this analysis.

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White Buffalo Ventures, LLC v. University of Texas at Austin
420 F.3d 366 (5th Cir., August 2, 2005) cert. denied, 126 S.Ct. 1039 (January 9, 2006)

Affirming the Court below, the Fifth Circuit holds that the University of Texas at Austin (“UT”) can block unsolicited commercial email sent by plaintiff White Buffalo Ventures (“White Buffalo”) to UT students that promote plaintiff’s online dating services.  Importantly, UT can take such action notwithstanding the fact that White Buffalo’s commercial emails comply with CAN-SPAM.

In reaching this result, the Fifth Circuit rejected White Buffalo’s arguments that UT’s conduct constituted state action preempted by CAN-SPAM.  The Court held that UT was a state actor, and that its determination to block unsolicited commercial email was a state regulation that fell within the ambit of CAN-SPAM’s preemption clause, found in section 7707(b)(1).  This section provides that CAN-SPAM preempts state regulation of email unless such regulation ‘prohibits falsity or deception’ in the email.

However, the statute further provides that ‘nothing in this chapter shall be construed to have any effect on the lawfulness or unlawfulness … of the adoption, implementation or enforcement by a provider of Internet access service of a policy of declining to transmit, route, relay , handle or store certain types of electronic mail messages.’  Section 7707(c).   As the provider of Internet access service – students are enabled by UT to access the internet via its wireless network, and to use email addresses UT provides – this section expressly permitted UT to adopt a policy blocking those who send spam to its network.

The Fifth Circuit held that Section 7707(c) conflicts with Section 7707(b)(1), and thus draws into question the limits of the preemptive effect of CAN-SPAM.   Given these conflicting provisions, held the Court, the presumption against preemption counseled against finding UT’s regulations invalidated by CAN-SPAM.  As such, the Court rejected White Buffalo’s argument that CAN-SPAM mandated that UT’s policies be invalidated on the ground that they ran afoul of CAN-SPAM, or were preempted thereby.

The Court similarly rejected White Buffalo’s claim that UT’s bar on the transmission of its commercial emails ran afoul of the First Amendment.  The Court held that the regulation was reasonably calculated to protect a substantial governmental interest – protecting users of its email network from the hassle associated with unwanted spam – and was no more extensive than necessary to protect that interest. 

The Fifth Circuit did hold that an absolute ban on the transmission of White Buffalo’s emails may be an overly broad restriction – from a First Amendment prospective – if the only interest protected was the capacity of UT’s system to handle the needs of its user community.  Summary judgment was inappropriate, on the record then before the Court, to sustain such a contention.  

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