Zango Also Loses Kaspersky TRO Motion

By Eric Goldman

Zango, Inc. v. Kaspersky Lab Inc., C07-0807-JCC (W.D. Wash. TRO motion denied June 6, 2007)

Yesterday, Zango’s TRO request against PC Tools was denied but Zango claimed the result was nevertheless a “victory for consumer choice” because PC Tools had made important classification changes. Today, the same judge denied Zango’s TRO request against Kaspersky Lab even though Kaspersky hasn’t made commensurate classification changes. Is this result a loss for consumer choice?

Like yesterday’s opinion, the court’s opinion is short and plainly stated, and it repeatedly points readers to yesterday’s opinion. The only substantive differences are (1) Kaspersky made fewer technical changes, but the court says that this fact isn’t significant enough to reach a different result, and (2) the court suggests, but does not conclude, that a 230(c) defense might be meritorious.

The opinion doesn’t say it, but I think implicitly the two opinions signal very clearly that Zango will need to present much stronger evidence of its problem if it hopes to ultimately prevail. Or, if it can’t present stronger evidence, this judge doesn’t look like he will be easily impressed. On that basis, Zango may find the better choice is to pursue out-of-court options.

UPDATE: Zango says this ruling puts “Consumer Choice on Hold.”

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