If this were a framed original of the trading card, the First Sale doctrine should apply. If it were a counterfeit version of the trading card, it would be an obvious legal violation. But this appears to be a photo of the trading card that’s printed. No reasonable buyer would believe this is the original trading card.

Upper Deck nevertheless seeks to enforce its IP rights in the print, both in the Michael Jordan imagery (it received via a license) and its hologram mark (the black shape in the upper left of the print–see the outline from the trademark registration). I believe the original card has actual holographic imagery in the mark’s location to reinforce the original’s authenticity. (Holograms are harder and more expensive to mimic, so they are routinely used as an anti-counterfeiting or security device). So when the reproduction lacks the holographic component of the mark, what does that signify? To me, it’s a strong signal to consumers that the copy isn’t being presented as authentic. Does that demonstrated lack of authenticity have any relevance to the trademark considerations? Unfortunately, the court doesn’t address that issue.

Trademark Dilution

The court says the hologram trademark isn’t sufficiently famous to qualify for dilution protection.

Trademark Infringement

• Mark strength. Even though the hologram mark isn’t famous, it’s a strong mark.
• Proximity of goods. Both offer sports memorabilia.
• Mark similarity. Identical.
• Actual confusion. The court presumes actual confusion from the mark’s identicality, with a bonus gratuitous shoutout to initial interest confusion because why not?
• Marketing channels. Both sell on the Internet.
• Purchaser care. An authentic Michael Jordan trading card depicted in the image above would sell for upwards of $1M. Pixels sells the reprint for $70. Purchasers will note the differences.
• Intent. “the mere existence of [Pixels’] notice-and-takedown policy does not indicate that Pixels has knowledge about the infringing use of the Upper Deck Hologram Mark in particular….Upper Deck has not indicated it attempted to take advantage of Pixels’ notice-and-takedown procedure to notify Pixels’ DMCA agent as to Pixels’ infringing use of the Upper Deck Hologram Mark.” How hard would it have been for Upper Deck to send takedown notices?
• Product line expansion. No evidence.

The court summarizes that 5 factors favor Upper Deck, 2 favor Pixels, and one is neutral. That’s enough to defeat Pixels’ summary judgment motion.

False Advertising

The opinion shifts to Upper Deck’s licensed interests in Michael Jordan’s depiction.

Standing. “a reasonable jury could find that Pixels’ use of Jordan’s likeness in its own similar products could result in a loss of sales of Upper Deck’s products and threatens Upper Deck’s commercial interests.”

False Advertising. I guess Pixels’ advertising claim is that Pixels has the right to market Michael Jordan trading cards when Upper Deck has the exclusive rights? The court says Upper Deck showed enough to survive summary judgment.

False Association. The false association analysis triggers a new round of Sleekcraft factor review, this time focused on Michael Jordan’s trademarks. The result is even more favorable to Upper Deck, so it again defeats Pixels’ summary judgment motion.

Publicity Rights

Pixels challenged Upper Deck’s exclusive right to the Michael Jordan personality. The court says the evidence provided by Upper Deck survives the summary judgment motion.

First Amendment Defense

A Rogers defense goes nowhere. Upper Deck presented “evidence that Pixels used Jordan’s Marks and/or the Upper Deck Hologram Mark in Pixels’ products featuring pictures and photographs displaying Jordan’s likeness. The pictures and photographs of Jordan displayed in Pixels’ products at issue in this action are source-identifying insofar as they contain Jordan’s Marks.”

Section 230

Pixels sought to clean up some of the state law IP and unfair competition law claims per Section 230.

In a footnote, the court acknowledges that Section 230’s IP exception applies to the federal Lanham Act claims but doesn’t apply to state IP claims.

The court summarizes: “while advertising and curating content on websites constitute publishing conduct that can be immunized under Subsection (c)(1), the sale and distribution of physical products does not.” Thus:

Pixels is entitled to Section 230 immunity where Upper Deck seeks to hold it accountable for the advertisement of allegedly infringing goods, or for creating website tools that allow users to search and view allegedly infringing goods based on images uploaded by third parties. However, Pixels is not entitled to Section 230 immunity to Upper Deck’s California state law claims where Upper Deck seeks to hold Pixels accountable for manufacturing and selling the allegedly infringing products listed for sale on its website (e.g., contracting with vendors to manufacture and ship illicit products)

As applied: “Pixels does not create the illicit images of products uploaded and displayed on its site, and Pixels’ website search engine and content filtering tools do not contribute to the creation of those products.” However, Section 230 doesn’t apply to “Pixels’ involvement in offline manufacturing or selling physical prints containing infringing images (e.g., hiring and coordinating with print and shipping vendors, facilitating product returns, offering a money-back guarantee).” It seems pretty straightforward that Section 230 wouldn’t apply to offline activities, no?

* * *

This case raises many complex issues. In addition to the hologram mark issue, this case raises questions about the scope of merchandising rights, the permissibility of displaying historical items such as old sports trading cards, print-on-demand manufacturers’ liability for vendor uploads, and more. The court mostly sidesteps all of these legal complexities. Instead, the opinion narrowly focuses on more technical aspects, such as whether the hologram mark’s shape could be infringed even when it’s being accurately displayed in historical context.

The court’s rejection of most of Pixels.com’s summary judgment motion seems to position Upper Deck’s claims for a trial, unless the parties can figure out a settlement beforehand.

Case Citation: The Upper Deck Co. v. Pixels.com LLC, 2026 WL 776227 (S.D. Cal. March 19, 2026). This is an amended version of the opinion issued on March 6. As the court explains in the first footnote, the prior opinion had errors that the court needed to correct.

Related posts

* DMCA 512(c) Helps Redbubble Defeats Copyright Lawsuit–Wallshoppe v. Redbubble
* Print-on-Demand Service Defeats Fish Illustrator’s Copyright Claim–Tomelleri v. Sunfrog
* Print-on-Demand Services Face More Legal Woes–Canvasfish v. Pixels
* Atari’s Lawsuit Against a Print-on-Demand Service Fizzles Out–Atari v. Printify
* Ninth Circuit Highlights the Messy Law of Contributory Trademark Infringement Online–YYGM v. RedBubble
* RedBubble Gets Another Favorable Ruling–YZ Productions v. RedBubble
* IP Lawsuits Against Print-on-Demand Vendors Continue to Vex the Courts–OSU v. Redbubble & More
* Another Tough Ruling for Print-on-Demand Vendors–Sid Avery v. Pixels
* Print-on-Demand Vendor Doesn’t Qualify for DMCA Safe Harbor–Feingold v. RageOn
* CreateSpace Isn’t Liable for Publishing Allegedly Infringing Uploaded Book–King v. Amazon
* More Evidence That Print-on-Demand Vendors May Be Doomed–Greg Young Publishing v. Zazzle
* Section 230 Doesn’t Protect Print-on-Demand Vendor–Atari v. Sunfrog
* Online Marketplace Defeats Trademark Suit Because It’s Not the “Seller”–OSU v. Redbubble
* Zazzle Loses Copyright Jury Verdict, and That’s Bad News for Print-on-Demand Publishers–Greg Young Publishing v. Zazzle
* Trademark Injunction Issued Against Print-on-Demand Website–Harley Davidson v. SunFrog
* DMCA Safe Harbor Doesn’t Protect Zazzle’s Printing of Physical Items–Greg Young Publishing v. Zazzle
* CafePress May Not Qualify For 512 Safe Harbor – Gardner v. CafePress
* Cafepress Suffers Potentially Significant Trademark Loss for Users’ Uploaded Designs
* Life May Be “Rad,” But This Trademark Lawsuit Isn’t–Williams v. CafePress.com
* Print-on-Demand “Publisher” Isn’t Liable for Book Contents–Sandler v. Calcagni
* Griper Selling Anti-Walmart Items Through CafePress Doesn’t Infringe or Dilute–Smith v. Wal-Mart
* CaféPress Denied 230 Motion to Dismiss–Curran v. Amazon

The post What Does a Hologram Trademark Signify When the Hologram Isn’t There?–Upper Deck v. Pixels appeared first on Technology & Marketing Law Blog.

In 2024, Photobucket emailed its legacy users, asking if they wanted Photobucket to keep or delete their accounts. Users who clicked on the email’s links–included to delete their accounts–were presented with a new TOS formation process that included a consent to use the photos to derive users’ biometric information for AI purposes. “If users did not opt out of the Biometric Policy within 45 days of July 22, 2024, Photobucket claims the right to sell, lease, trade, or otherwise profit from the users’ biometric information.” (Photobucket claims it hasn’t actually pursued this AI option). The new TOS also contained an arbitration provision that wasn’t in some prior TOS versions. Photobucket invokes the arbitration clause against the plaintiffs’ lawsuit.

Article III Standing. The court says the plaintiffs only have Article III standing for equitable relief, not damages. This narrows the case substantially.

Pierce

Pierce agreed to Photobucket’s 2008 TOS and last logged into Photobucket in 2014. The 2008 TOS informed Pierce that his “continued use” of Photobucket would constitute acceptance to any TOS modifications. Since he didn’t use the site after 2014, he didn’t assent-by-use to the 2024 TOS:

a reasonable person would not understand his failure to take his photos off of
Photobucket, after not logging in for nearly ten years, to constitute “continued use” and thus acceptance of any revised terms.

In other words, a user’s maintenance of a legacy account isn’t “continued use” of the service.

Ms. Hughes

Ms. Hughes agreed to Photobucket’s 2006 TOS and last logged into Photobucket no later than 2011. The 2006 TOS said:

By using the Services you agree to the Terms of Service set forth below as they may be updated from time to time by Photobucket.com, Inc. (“Photobucket.com”). Photobucket.com may modify or terminate the Services from time to time, for any reason, and without notice, including the right to terminate with or without notice, without liability to you, any other user or any third party, provided that when Photobucket.com does so, it will update these Terms of Service. You are advised to periodically check the website for changes in the Terms of Service.

The court says this TOS “told Ms. Hughes that she was “advised to periodically check the website for changes in the Terms of Service.” The 2006 Terms “necessarily inform[ ] how a reasonably prudent user would interact” with Photobucket’s website.”

But…the TOS applicable to Pierce said “It is therefore important that you review this Agreement regularly to ensure you are updated as to any changes.” The court disregarded that language for Pierce. Can you find a difference between the disclosures to Pierce and Hughes? Beyond the (seemingly immaterial) language differences, the court’s different conclusions might be explained by (1) Pierce was governed by Colorado law, Hughes by CA law; or (2) Hughes admitted getting emails telling her about the coming changes, though she didn’t pay attention to them. I don’t find those distinctions persuasive, so I can’t meaningfully distinguish Pierce’s situation from Ms. Hughes’.

The court says Hughes is bound to the 2024 TOS:

the 2006 Terms told Ms. Hughes that she had an obligation to periodically check Photobucket’s website for updates to the Terms. The 2024 Terms and arbitration provision constitute an update to the Terms that Ms. Hughes had an obligation to stay apprised of. Ms. Hughes assented to the 2024 Terms because they informed her that failure to opt out within 45 days of the effective date would constitute acceptance, and Ms. Hughes did not opt out

Whoa. The court is saying that even though Hughes functionally abandoned Photobucket in 2011, a “reasonably prudent user” would have kept checking Photobucket’s TOS 13 years later just in case the terms had changed. Wild.

Because Ms. Hughes “agreed” to the 2024 TOS, she also “agreed” to its jury trial waiver.

However, the arbitration clause excludes IP claims. The plaintiffs alleged 1202(b) claims, which the court says are IP claims and thus not covered by the arbitration provision. This claim stays in court.

Cumming

The parties can’t agree when Cumming created her Photobucket account or when she last used it, but everyone agrees that she agreed to the 2013 TOS and didn’t use the site later than 2013. That TOS version said “so long as you’ve used the Site after the change, regardless of any separate notice, you agree to the current posted version of the Terms.” Similar to the court’s discussion of Pierce, the court says “a reasonable person in Ms. Cumming’s position would not understand her failure to take photos off of Photobucket to mean that she “used” Photobucket after 2010 or 2013 and thus assented to the 2024 Terms.”

Mr. Hughes

He didn’t have a Photobucket account, but Ms. Hughes uploaded photos of him. The court says he’s not a third-party beneficiary of any TOS and not bound by the arbitration clause.

Court Stay

The court stays the litigation until after the arbitration, even though the court held that 3 of the 4 named plaintiffs were not bound by the arbitration and the fourth plaintiff had a claim not subject to arbitration. Because the court will not be bound by the arbitrator’s decisions for the non-arbitrated plaintiffs and claims, I didn’t understand why the court held everything else up. A slightly lucky break for Photobucket, because it avoids the cost of defending the litigation and arbitration simultaneously.

Implications

Here’s where things stand when the dust settled:

• damages are out of the case
• part of one plaintiff’s case is sent to arbitration
• when that’s complete, the court will address the remainder of that plaintiff’s case plus the other three plaintiffs’ cases

A messy outcome…perhaps messy enough to motivate the parties to settle? Without the availability of damages, this case became less interesting to the plaintiffs. Alternatively, I could also see the plaintiffs appealing this ruling.

Though Photobucket nominally got the outcome it wanted (the case sent to arbitration), it does not come out of this ruling looking very good. Some of the lowlights:

• its inital TOS amendment provisions sucked. It had various versions of “you need to come back to the site to check for possibly amended terms,” which has rarely fared well in court. Frankly, it’s shocking to see the judge find this “keep checking the TOS 13 years later” provision worked against Ms. Hughes. I don’t think that’s what a reasonable consumer would do. (As usual, the court cited no empirical basis for its assessment of what a reasonable consumer would do or think).
• the fact that Photobucket’s TOS amendment language kept changing over time. The language differences ensure more litigation work when it’s challenged.
• the fact that Photobucket kept changing its governing law clause. Another decision that increased its defense costs and the risk of inconsistent outcomes.
• the fact that Photobucket couldn’t definitively establish the dates of the users’ account creation or usage.
• its 2017 implosion. How did it misjudge the market so badly?
• its 2024 pivot to potentially engage in AI mining. I guess if you’ve already killed your business, why not try to salvage what’s left of the carcass?
• the attempt to bind legacy users via a TOS that users had to click through even if they wanted to exit Photobucket. Gauche.
• the arbitration provision’s exclusion for IP. Plaintiffs are weaponizing 1202, so IP carveouts have become dangerous. Reminder: every part of the arbitration provision should be carefully vetted for potential plaintiff weaponization.

The result was a messy outcome with different plaintiffs for getting different outcomes. Not what Photobucket was aiming for.

The obvious question: was there a better way for Photobucket to force all legacy users onto its new AI-friendly terms? This judge seemed to believe that the right incantation would let Photobucket put the onus on users to check for TOS amendments, but most judges won’t permit this. Could Photobucket have forced users to the new terms through its emailed notifications? The Ninth Circuit just permitted this, so maybe? The reality is that it’s difficult or impossible to universally bind all legacy users to new terms if they aren’t coming back to the website. I don’t have any clever hacks or tricks to work around this.

Case Citation: Pierce v. Photobucket Inc., 2026 WL 672764 (D. Colo. March 10, 2026). CourtListener page.

Other posts about Photobucket

• Photobucket Qualifies for the 512(c) Safe Harbor (Again)–Wolk v. Kodak
• Photo Hosting Site Gets DMCA 512 Safe Harbor–Wolk v. Photobucket

The post Photobucket’s Attempted TOS Amendment Mostly Fails–Pierce v. Photobucket appeared first on Technology & Marketing Law Blog.

However, the defendants challenged the copyright registrations, saying they incorporated third-party works. The plaintiff claimed it had the copyright owner’s permission to include those images in its works [though I didn’t see any indication that it was an exclusive license required to enforce them…? this was unclear], but the defendants claimed that the plaintiff’s evidence and timeline didn’t cohere. The court initially sided with the plaintiff, but the plaintiff later voluntarily dismissed the case entirely.

The defendants sought damages out of the bond supporting the TRO. The court says “Langmi does not dispute that Defendants were wrongfully enjoined or restrained, nor does it identify any reasons for requiring Langmi not to pay in this case,” which seems pretty dispositive.

Nevertheless, the court becomes a stickler about the defendants’ arguments on various procedural grounds, so the judge makes a series of judgment calls against the defendant and concludes that the plaintiff did not litigate in bad faith. As a result, the court limits the defendants to the $10k bond–even though the defendants showed $47k of lost profits while the TRO was in effect. Raising more procedural objections, the court also rejected the defendants’ requests for attorneys’ fees due to the plaintiff’s litigation misconduct. I imagine the defendants could request a 505 attorneys’ fee shift, but I’m skeptical this judge would grant that either given its discretionary nature.

This case highlights some common aspects of SAD Scheme cases:

• Although the SAD Scheme is pitched as a tool against Chinese defendants, increasingly we are seeing Chinese plaintiffs embrace the SAD Scheme. I guess the Chinese are learning all of the wrong lessons about how the US legal system works.
• This court set too low a bond. I’m not aware of scientific guidance about how courts should set appropriate bond levels, so this could be an area that would benefit from more academic rigor. But because the court didn’t properly structure the bond initially, it left the defendants with uncompensated damages.
• SAD Scheme plaintiffs often back down when defendants fight back. The plaintiff dropped from 36 to 8 defendants, and then, when challenged further, the plaintiff dropped the case entirely. This plaintiff pliability is often a sign that the plaintiff assumed they would get away with doing inadequate homework (as this defendant did, getting the TRO initially) because judges won’t spot all of the holes in the plaintiffs’ cases.
• Judges all too often hold defendants to stricter procedural standards than they hold plaintiffs. It seems like SAD Scheme plaintiffs can say whatever they want to get a TRO and some judges shrug their shoulders about the multitudinous corner-cutting along the way. But when defendants ask a judge to hold the SAD Scheme plaintiff accountable, all of the sudden the rule of law barrier reappers and judges repeatedly make all inferences against the defendants.

All told, the plaintiff got a TRO it almost certainly didn’t deserve, caused tens of thousands of dollars of damages to the defendants, and is only liable for paying out of its inadequate bond. Grr.

Case Citation: Shenzhen Langmi Technology Co., Ltd. v. Schedule A Defendants, 2026 WL 569072 (N.D. Ill. Feb. 26, 2026)

BONUS: In a non-precedential opinion, the Seventh Circuit rejects SAD Scheme personal jurisdiction merely based on the defendant’s product being available in Illinois, without the plaintiff doing a test buy or providing other evidence of the defendant’s sales in Illinois:

In the context of Schedule A litigation, the defendant’s operation of an online store accessible in the forum state, combined with sales in the forum state, has been found sufficient to subject that defendant to personal jurisdiction….

there’s no evidence in the record of Illinois purchases. The evidence upon which the district court relied shows only that it was possible to order the defendants’ products and have them shipped to Illinois, not that such sales took place. Those records consist of screenshots of Walmart’s website showing the checkout page with the infringing product, a Chicago shipping address, and the estimated total, but not a completed purchase….

Therefore, the district court clearly erred in finding that the defendants sold products to Illinois customers. Nor was that error harmless. Without those sales, the court’s basis for personal jurisdiction is merely that the defendants operated a website accessible in the United States. And, as we explained in Curry, more is required to establish personal jurisdiction

Liu v. Monthly, No. 25-2074 (7th Cir. March 9, 2026)

BONUS 2: Liu v. Schedule A Defendants, No. 4:25-cv-01220, 2026 BL 78756 (E.D. Tex. Mar. 09, 2026): “Federal courts thus lack authority to freeze defendants’ assets for future satisfaction of a potential judgment awarding damages for utility-patent infringement.”

The post SAD Scheme Copyright Plaintiff Must Compensate Defendants–Shenzhen Langmi v. Schedule A Defendants appeared first on Technology & Marketing Law Blog.

I’m a little confused by this lawsuit, because I thought Emojico had retrenched its usage of the SAD Scheme after it suffered a bad loss. I guess they are back? This time, they have a different law firm representing them (Marijan Stephan Hucke of Hucke & Sanker PLLC instead of Hughes Socol Piers Resnick & Dym).

In this case, Emojico sued 125 defendants using the SAD Scheme template. The court credits Emojico’s trademark registrations but questions Emojico’s explanation of the likelihood of consumer confusion. Emojico deployed its IP Privilege Card, saying it called the defendants “counterfeiters,” so why would it need to say more than that to establish consumer confusion? The court says…yes, you do need to say more than that…

Plaintiff makes no effort through argument or evidence to show that the products to which it affixes its trademark as a source of origin or sponsorship are substantially identical to or competitive with Defendants’ products, the sale of which Plaintiff seeks to restrain. Aside from a few conclusory lines in its memorandum in support of the temporary restraining order, it does not address the Polaroid factors at all. Plaintiff thus has not shown that it is entitled to a temporary restraining order against any of the Defendants

I’m always fascinated when rightsowners blow a shot on an open net in the form of losing a TRO request EX PARTE. It’s a bit like losing an election while running unopposed.

The court also questions joinder of the 125 defendants: “Plaintiff shall show cause by no later than March 11, 2026, why all Defendants except for the first-named one should not be dismissed from this action for misjoinder.” I have a hunch Emojico’s joinder explanations will not be any more persuasive than its other arguments.

Case Citation: Emoji Co. GmbH v. Schedule A Defendants, 2026 WL 594186 (S.D.N.Y. March 3, 2026)

The post A “But They’re ‘Counterfeiters’!” Argument Doesn’t Clinch a SAD Scheme TRO–Emojico v. Schedule A Defendants appeared first on Technology & Marketing Law Blog.

The plaintiffs claim that bad actors misused Tile’s tracking devices to stalk them. The plaintiffs (as a class action) sued Tile for how it designed and sold the trackers. Tile invoked the arbitration clause in its TOS. This sets up a complicated analysis of TOS amendment–though the panel never directly acknowledges that this is an amendment case, not a case about formation in the first instance.

Two plaintiffs agreed to Tile’s TOS in 2021 and early 2023, respectively. Those versions of the TOS contained arbitration clauses that proved ineffective. In October 2023, Tile changed the arbitration provisions to include new language. To step up its existing users to the October 2023 arbitration provisions:

In October 2023, Tile sent to all accountholders the Oct. 2023 Notice—an email with the heading “Updated Terms of Service and Privacy Policy”—advising that Tile was updating its Terms. Sent to the email address provided by accountholders during registration, the Oct. 2023 Notice contained a blue-text and bolded hyperlink to the Oct. 2023 Terms. The email told accountholders that “[i]f you continue to use any of [Life360 and Tile’s] apps, or access our websites (other than to read the new terms) on or after November 26, 2023, you are agreeing to the [Oct. 2023 Terms].”

One plaintiff said the notification email went into the spam folder, but they saw it months later when they went affirmatively looking for it. The other plaintiff said they never saw the email. Both used the Tile service after the purported TOS amendment date. The district court held that neither plaintiff was bound by the October 2023 arbitration provisions, and the arbitration provisions in the earlier TOS versions partially failed due to unconscionability. Tile appealed that ruling, hoping to send these plaintiffs to arbitration.

The Ninth Circuit holds that Tile’s email put both plaintiffs on inquiry notice of the TOS amendment.

Transaction Context. “As Tile users, each Appellee provided an email address during account registration, and should have expected to receive relevant updates there while the account was active.” This is a pretty wild claim. Many services request email addresses during account registration, and yet the initial TOS formation fails. Also, just because I provide an email address during registration doesn’t mean that I assume TOS amendments will be sent via email. That may depend on how the TOS describes the amendment process–an angle this panel remarkably ignores completely.

Reasonable Disclosure. The court says the email disclosures were good enough:

The design and content of the Oct. 2023 Notice provided reasonably conspicuous notice of the Oct. 2023 Terms because the email’s design was “clear and legible,” and it provided the updated Terms through a link with “customary design elements denoting the existence of a hyperlink.” The subject line clearly stated that Tile was updating its Terms. And the body contained a hyperlink to the Oct. 2023 Terms in bold, blue text which contrasted against the white background. Although the email did not say specifically that the arbitration agreement would be updated, reasonable notice does not require the email to discuss every revision.

“Lack of other notices.” The court says “Tile could have done more to ensure that all its users were on inquiry notice of the Oct. 2023 Terms. Tile could, for example, have interrupted users’ next visit to the Tile App with a clickwrap pop-up notice.” The court says the absence of these other notices weighs against inquiry notice.

So, did the TOS amendment work? The court makes a remarkable doctrinal move, something I don’t recall seeing before. The court treats inquiry notice as a multi-factor test and says two factors weigh in favor of notice (transaction context and reasonable disclosures) and one weighs against (lack of other notices). In other words, the two pro-formation factors prevail over the anti-formation factor. But…when did the inquiry notice standards become a multi-factor test with these three factors? This methodology is novel (and dubious). The court might have said that even if other notification procedures would have been more efficacious, the email notice was good enough. This would have reached the same outcome without this weird doctrinal move.

[Hedging its bets, the court says “we do not hold that notice by mass email establishes inquiry notice in every case”].

Manifestations of Assent

Doe unambiguously manifested assent to the Oct. 2023 Terms by downloading the Tile App in March 2024 and using the Scan and Secure feature in attempting to locate her alleged stalker’s Tile Tracker….

Broad also unambiguously manifested assent to the Oct. 2023 Terms by using the Tile App in January 2024 and periodically opening the Tile App to check location-sharing settings—including, according to Tile’s records, in April 2024.

The court treats these users’ actions as occurring after the users had “inquiry notice.” Thus, the October 2023 TOS controls, and the court sends the case to arbitration.

* * *

Consider some of the wackiest aspects of this opinion:

• the court doesn’t distinguish between TOS formation and TOS amendment.
• the court doesn’t address what Tile’s TOS said about how the TOS could be amended. Did the TOS even authorize email amendment? The TOS terms would have substantial bearing on what a reasonable consumer might have thought. [Note: The court discusses the prior TOS’s arbitration language that said Tile couldn’t materially change the arbitration provisions “unless you expressly agree to them” but treats the October 2023 as sufficient “express agreement.”]
• the court doesn’t engage many of the precedents involving attempts to form TOSes by email, especially post-transaction emails (like this one).
• the court assumes that providing an email address during account registration means that the users should assume they will be getting TOS amendment notifications via email.
• the court didn’t address the many reasons why a TOS amendment email might never reach a user, such as the user’s email address having gone defunct or server-level blocking. If the user never received the email, does the court still think they are on inquiry notice? The court also doesn’t address the implications of the email going into a folder other than the user’s primary inbox, such as showing up in the spam folder. Are users on inquiry notice for everything in their spam folder? I wonder how often the judges carefully check their spam folder…
• the court created and applied a weird multi-factor test for inquiry notice.

FWIW, the court does acknowledge that some of the underlying issues are empirical questions, but it dodges those questions by citing Sellers, which said “there is very little empirical evidence regarding” Internet users’ expectations. If the data is hard to get, I guess we don’t need it?

So, what should we make of this opinion? Is this an example of the characteristically wild-‘n’-wooly jurisprudence in the Ninth Circuit’s non-precedential cases? Or perhaps an indicator the Ninth Circuit’s TOS formation jurisprudence is a mess and there is no logical or defensible through line from case to case?

Case Citation: Ireland-Gordy v. Tile, Inc., No. 25-403 (9th Cir. March 3, 2026). The CourtListener page.

The post Ninth Circuit Allows TOS Amendment by Email–Ireland-Gordy v. Tile appeared first on Technology & Marketing Law Blog.

Here is a chart of the various TOS formation timings and modalities:

The court starts by establishing what evidence it can consider.

2015 TOS Formation Evidence. Paypal apparently doesn’t have a copy. It pointed to the Wayback Machine version but didn’t submit a screenshot of that. Arbitration denied.

2019 TOS Formation Evidence. Paypal only has a screenshot of the email TOS formation from Wayback Machine, but none of the plaintiffs apparently signed up via email. Arbitration denied.

2021 & 2022 TOS Formation Evidence. More Wayback Machine screenshots. “The screenshot does not show any language notifying users about terms of service or show what users would have seen after selecting the button for how they would like to join….The Court cannot consider whether notice of any terms was reasonably conspicuous, let alone legible, without knowing what the website looked like.” Arbitration denied.

2016–2018, 2020, and 2023–2024 TOS Formation Evidence. The court says Paypal provided sufficient Wayback Machine screenshots for all but one of the plaintiffs in these periods. (The other plaintiff used the browser extension and may not have created an account). The court accepts the Wayback Machine screenshots because “plaintiffs’ failure to provide competent evidence directly rebutting defendants’ evidence fails to create a genuine issue as to the sign-up process that was presented to those plaintiffs when they created their accounts.”

* * *

Having identified the competent evidence, the court then discusses the screenshots (but it only shows one; the rest it describes textually):

2016-18 TOS Formation Process.

• “The text stating “By joining, I agree to Honey’s TOS & Privacy Policy” was of a size sufficiently smaller than the text on the rest of the screen that many users would likely have had to squint to read it.” Squinting is bad, but I always say that the offer language should never be the smallest font on the screen.
• “The small font size was exacerbated by the color of the text, which was light gray against a white background and in contrast to the two large and colorful buttons on the screen.”
• “the sign-up page told users that by joining, they agreed to Honey’s “TOS.”…the Court cannot conclude that a reasonable user in 2016 or 2017 would have known what TOS meant….Even if a reasonable user might have understood TOS to mean terms of service, Honey’s use of the acronym required an extra mental step for a user moving quickly through the sign-up page.”
• “the very small and faded nature of the text did not render the hyperlinks “readily apparent.””

Arbitration denied.

2020 TOS Formation Process.

Defendants’ declaration states, “The Wayback Machine reflects that in 2020, a user would affirmatively check a box to agree to the Terms of Service.” Nowhere does the declaration aver that a user had to check the box to continue signing up for Honey. Defendants ask the Court to recognize that it is “self-evident” that a user would have had to check the box. But where the Court must draw all inferences in favor of the non-moving party, it cannot conclude that a user was required to check the box and indicate their agreement to Honey’s terms rather than that it was merely optional for a user to do so. This is particularly true given that the box next to the second statement, through which users could choose to “[r]eceive news and offers from Honey by email,” was most likely optional. Nothing in the text of the page states that checking one of the boxes is mandatory while checking the other is not, and in the absence of evidence specifically establishing that users were required to check the first box, the Court cannot conclude that defendants have satisfied their burden to produce evidence of Cruz’s unambiguous assent to Honey’s terms of service.

Ugh. A great reminder that a screenshot doesn’t capture any animation or kinetic elements. So avoidable. A video of the UI, showing that the checkbox was mandatory, would have made this obvious.

Arbitration denied.

2023-24 TOS Formation Process.

Finally, the court shows a screenshot, which the court labels a “clickwrap agreement”:

The court explains why this works:

First, the notice was placed above the button to sign up and in the “user’s natural flow.” Second, although the text was relatively small and gray against a white background, the surrounding text was not much larger and was the same gray or black. The pages thus did not distract or draw the user’s eye away from the notice. Third, the hyperlinks are in a slightly different color than the rest of the notice and are underlined to indicate their presence to a reasonable user. Although the terms of service are mentioned in the fourth line of the notice, its placement is not fatal to its otherwise conspicuous disclosure; the first line of the notice indicates that users “agree to the following terms,” and the button to complete sign-up says, “Agree.”

Note that the Godun case might actually reject this process, despite its clarity, because the checkbox lacks an if/then grammar that links the offer language to the button. The court responds: “the button to complete sign-up itself indicated that the user “Agree[d]” to the text above.” But is that clear? Could the user just be agreeing to the sentence to right of the checkbox? The court responds: “the first line of the notice states that users agree to the “following terms,” signaling that multiple terms are included in the notice and correspond to the checkbox. And even if a user might not have understood that the checkbox referred to all of the terms within the notice, the “Agree” in the text of the button provided a further backstop.”

Arbitration granted for these two plaintiffs.

Implications

Courts are being stricter about TOS formation. I continue to believe that Chabolla and Godun were a substantial break with prior TOS formation law, so courts are being much pickier and the bar for TOS formation has gone way up. Here, the court rejects TOS formation for 10 of the 12 named plaintiffs (and for the other two, I believe the court disregarded the Godun precedent). This is the new math of TOS formation.

Watch out for jargon. It was interesting seeing the court reject the TOS term as unclear to consumers at the relevant time. Perhaps that’s true, though with the proper offer language, it shouldn’t matter so long as consumers otherwise understood that terms applied.

(The court dodges the nature of Honey’s relationship with consumers, even though it seems pretty obvious to me that consumers would expect a long-term relationship with Honey and that terms would apply to Honey’s software. If so, Ninth Circuit law might say that consumers were likely to presume that terms applied somewhere).

Similarly, it’s interesting how the court didn’t assume the TOS checkbox was mandatory, but textual references to its mandatory nature (or maybe a red asterisk?) would have helped. I saw this as a cautionary indicator that a screenshot may not be enough to establish a clickwrap, in which case either testimony from an engineer or a video will be required to establish the checkbox’s mandatory nature.

It’s the lawyer’s job to keep the right evidence. I wince every time I see a TOS formation case where the website operator (usually the defendant) relies on Wayback Machine evidence. The Wayback Machine is awesome and I love it, but it’s often not a complete rendering of the page, it doesn’t capture app interfaces, it doesn’t capture screens behind registration walls or paywalls, and it usually doesn’t capture animation or kinetic elements. In other words, submitting Wayback Machine evidence should be your last-ditch failsafe, not your Plan A. You can see how the judge was repeatedly underwhelmed with the Wayback Machine screenshots–almost certainly snatching defeat from the jaws of victory, as least for some of the plaintiffs in this case. The solution is simple: when you’re updating your TOS terms or your TOS interface, capture screenshots and videos to show how the pages look and work.

What’s next? The court’s split decision is a bummer for both sides, because it multiplies the litigation into parallel court and arbitration proceedings. Simultaneous litigation efforts jack up the costs and increase the risk of inconsistent outcomes. As an outsider to the litigation, the Solomonic approach would be to stay the arbitration for now, proceed with the in-court litigation, and then revisit the arbitration piece after the court decisions. That would allow the bulk of the case to proceed, save the duplicative costs, and avoid the risk of inconsistent outcomes. Indeed, it’s entirely possible the parties will know how to settle the arbitrated cases after getting the in-court results, in which case arbitration may never be needed. But Paypal could try to negotiate around this result, weaponizing the threat of litigation multiplication and the associated costs to goad the plaintiffs into arbitration first. An interesting game theory scenario.

Case Citation: White v. Paypal Holdings Inc., 2026 WL 496712 (N.D. Cal. Feb. 23, 2026)

The post If You Don’t Keep Good Records, Don’t Be Surprised if Your TOS Formation Fails in Court–White v. PayPal appeared first on Technology & Marketing Law Blog.

* * *

The plaintiff, Price, has a trademark registration in the phrase “White Privilege Card,” for novelty plastic identification cards. Ugh. His lawsuit names 102 defendants and “follows the mold of thousands like it that have appeared in the last few decades,” including, as usual, getting an ex parte TRO. However, the case falls apart when he requests a preliminary injunction.

The court says the case “presents difficult merits and procedural questions regarding due process and joinder….[and] presses the bounds of the judiciary’s equitable powers.” In fact, it’s pretty easy to spot the many, many flaws in this case. The opinion contains 37 pages of withering critiques that would make many lawyers cry if a judge expressed these concerns about their work. For example, the court says:

• “At the time that Price moved for a temporary restraining order, Price provided no legal names of the sellers.” [I guess precisely identifying defendants is now optional to getting a TRO?]
• “Price did allege irreparable harm in his affidavit, but only in general terms without differentiation between the over 100 sellers’ products or the sellers’ likelihood of evading judicial action.”
• “Absent from the preliminary injunction motion and the properly attached papers upon which it relies is any description or a visual depiction of Price’s own products or how the Mark appears in context….Without evidence in the record of Price’s Mark as consumers encounter it, the Court cannot assess its similarity with the screenshots of the allegedly infringing products displayed in Schedule B.” [Schedule B was 150 pages of poorly organized screenshots of the defendants’ products. Filed under seal, naturally.]
• “Price fails to provide evidence of how the Mark appears in context, making it impossible to assess whether the defendants’ marks are identical or similar to Price’s Mark or otherwise evaluate consumer confusion. Even if Price had properly submitted evidence of his Mark, his arguments about the similarity of the sellers’ products are too generalized, and Price presents no evidence of the strength of his Mark or the market more broadly. Indeed, several allegedly infringing products bear no resemblance to the description of Price’s Mark.”
• “Price did not offer a single example of consumer confusion or specify any product or defendant in particular.” Later, the court says “Price’s allegations of similarity against at least four of the sellers’ products fail on their face, as the cards are distinct from Price’s Mark.”
• “While many other products appear identical or nearly identical to the card displayed at the hearing (at least based on the screenshots, as no tangible products were introduced) and Price might ultimately succeed against some of those sellers, Price offers no specific argument about any of them in his motion, nor any evidence concerning the customer base, advertising, sellers’ intent, actual consumer confusion, or consumer sophistication. While “[t]here are no hard and fast rules as to how much evidence of confusion is enough,” surely this is not enough.”
• “Price’s conclusory allegation that he and the sellers operate in the same geographic areas is hardly enough to satisfy Rule 8.”
• “absent from the record is any evidence of actual confusion or argument about consumer sophistication—let alone analysis of any specific infringing product.”
• “the alleged similarity (based on the screenshots) proves little more than that it is seemingly easy to make and market the cards. That may very well be true, but it does not mean that joinder is proper under Rule 20.”
• “Price alleged that the defendant sellers use third-party marketplaces to sell infringing goods. Price never alleged that the nonparties were aiding and abetting the infringement or otherwise acting in concert with the sellers under Rule 65(d)(2)(C)….at the time that the temporary restraining order was entered, Price failed to prove that the Court had authority to direct a nonparty financial institution or marketplace to halt the movement of funds in an account when that nonparty did not know about the infringement.”
• “Price does not explain or provide evidence why preliminary relief of this scope—a total asset freeze of every defendant—is necessary to secure a later equitable remedy from any particular defendant.”
• “unlike other Schedule A litigation, many of the defendants according to Price’s amended complaint are based in the United States, mitigating one of the barriers that Pricer [sic] earlier alleged might prevent later recovery. Given this and Price’s failure to offer any specific justification for freezing the assets of any particular defendant, granting an asset freeze would go against the very purpose of equity.” [Note: anyone who tries to normalize the SAD Scheme by saying it only targets foreign defendants can stuff it.]
• “not all of the defendants have received notice of the motion for a preliminary injunction, and, even for those that Price has noticed under Rule 65, Price has not proven service of process of the underlying complaint for any seller. That creates one-sided briefing, which “renders balancing the private interests impossible.” Moreover, the vagueness of the complaint cautions against an award of a preliminary injunction, particularly because an asset freeze is a powerful remedy. With such a dearth of information and lack of specificity, “there is significant doubt that the Schedule A mechanism serves the public interest” in its present form.”

To me, it feels like the lawyers expected to get their wishlist granted just by showing up in court. Maybe they thought their IP privilege card was a get-out-of-lawyering-free card…?

The court summarizes its conclusions:

Because of procedural irregularities, due process problems, and the absence of evidence to support a substantial likelihood of success on the merits, I vacate the temporary restraining order, deny the motion for a preliminary injunction, and dismiss the amended complaint as to all defendants but Cone

[Cone has brought counterclaims against Price, pointing out she uses cardstock and not plastic and began selling her items 3 years before Price got started.]

Good for the court for bouncing this crap lawsuit now. AND YET….the lawyers wreaked some havoc with the court-approved TRO:

Price reported settlements with approximately twenty-three sellers and separately filed notices of voluntary dismissal of his claims against another nineteen. Four sellers responded to the preliminary injunction motion, and Price settled or voluntarily dismissed his claims against all but one of them.

This sounds bad, so how do you think the court addressed these problems? Did the court…

• sanction Price for getting an unmerited TRO;
• provide relief to the online marketplaces who had to contend with a TRO that never should have applied to them; [Note: “Price represented at the February 4 hearing that the freezes remain in place despite the expiration of the temporary restraining order.” Continued post-TRO restrictions are typical. It’s a good reminder of how the SAD Scheme impacts defendants outside the court’s purview.]
• dismiss the remaining defendants with prejudice; [the court did dismiss the defendants….without prejudice FFS]
• provide recourse for the 23 settlements that were triggered by the unmerited TRO;
• compensate the seller-defendants who spent their time and money to respond to the obviously defective PI motion; or
• flag the lawyers’ numerous and obvious failings for potential license discipline?

Nope. None of the above. This is a SAD Scheme case–a genre where judges rarely impose even a trivial amount of accountability.

While it’s easy to mock the terrible work by these lawyers, to me, they are a symptom of the disease. The SAD Scheme only works when lawyers bend the law and facts to reach undeserved outcomes. The SAD Scheme is rigged in such a way that it categorically encourages bad lawyering. Hate the players AND the game.

Case Citation: Price v. Schedule A Defendants, 2026 WL 470599 (M.D. Fla. Feb. 19, 2026). The court’s TRO. The court’s order to show cause regarding joinder.

Personnel note: the plaintiff’s lawyers are Terry Marcus Sanks and Liandra Izquierdo of Beusse Sanks, PLLC, Orlando, FL.

The post A SAD Scheme Plaintiff Unsuccessfully Plays an IP Privilege Card–Price v. Schedule A Defendants appeared first on Technology & Marketing Law Blog.

LowerMyBills.com refers internet users who are interested in refinancing their home mortgages to affiliated lending partners, including Rocket Mortgage. The website tells users that they will agree to its hyperlinked “Terms of Use”—including a mandatory arbitration provision—if they click on a particular button. Michael Dahdah visited this website three times, inputted his information, and clicked the critical buttons. LowerMyBills referred him to Rocket. When Dahdah later received calls from Rocket that he did not want, he sued the company in federal court. Rocket responded by invoking LowerMyBills’ arbitration provision. But the district court held that Dahdah’s “click” did not create an enforceable agreement. We disagree. Under the significant body of circuit precedent interpreting California law, LowerMyBills gave Dahdah sufficiently conspicuous notice that he would accept the proposed terms by clicking the button. So his decision to take this action qualified as a valid “acceptance” of LowerMyBills’ “offer” to contract. The district court thus should have granted Rocket’s motion to compel arbitration.

* * *

Let’s dig into the details, starting with the relevant screens. The plaintiff went to LowerMyBills’ site and requested information about mortgages. The court focuses on the following two screens (the fourth and fifth pages in a 5-page sequence). A screenshot of the bottom of the fourth screen:

A screenshot of the bottom of the fifth screen:

[By redacting the screenshots to only show the page bottoms, the court removed the TOS formation process from the full context. This supports the court’s pro-formation bias by making the pages look simpler than they actually were.]

As you can see, these screenshots look like pretty standard “sign-in-wraps.” The court characterizes them as “a hybrid offer (not a clickwrap or browsewrap offer).” The court prefers the hybrid language because the same methodology applies to sign-in-wraps and other formation processes that aren’t clickwrap/scrollwraps or browsewraps. The court rejects the plaintiff’s argument that this was a browsewrap:

Browsewrap offers seek to create contracts when users simply browse a webpage (hence, their name). LowerMyBills did not propose that type of offer. It required users to take a specific step to accept its offer: click the relevant buttons.

The Sixth Circuit applies California law to these screenshots (both parties agreed on that choice), which is a little dicey because the Sixth Circuit isn’t a repeat player with California TOS formation law. As an example, the Sixth Circuit completely ignores the Godun decision even though I think Chabolla and Godun can’t be understood without reference to the other.

[Personnel notes:

• The opinion was written by a TAFS judge (TAFS = Trump-Appointed Federalist Society). TAFS judges’ opinions routinely are distinctive compared to non-TAFS opinions (not necessarily in a good way). I thought this opinion was disorganized (my blog post merges related topics that were confusingly addressed in disjointed locations throughout the opinion) and overrelied on cherrypicked precedent (a hallmark of TAFS opinions).
• For a court applying California law outside of California, it was conspicuous that none of the lawyers listed on the opinion caption are based in California…]

The Court’s Description of TOS Formation Law

The Wrap Taxonomy

• “any reasonable person would conclude that so-called scrollwrap or clickwrap offers objectively convey the website operator’s “manifestation of [a] willingness to enter into a bargain” with website users”
• “So-called browsewrap proposals fall on “the other end” of potential offers….courts often hold that these offers cannot create valid agreements because they leave users “unaware” that the operator has even proposed an offer”
• “many proposals fall in between these extremes. These “hybrid” offers (what some courts have called “sign-in wrap” offers) present the trickiest cases.”

Sign-In Wrap (“Hybrid”) Requirements

In determining if an offer is reasonably conspicuous, this court asks Four Questions (no, not those questions):

Q1: “Did the website display the offer on an “uncluttered” page, or on a page filled with items that will “draw the user’s attention away from” the proposal?” “Simple streamlined designs” are more likely enforceable than “a page with lots of distractions.”

Q2: “Did the website operator place the proposed offer close to—or away from—the button that a user must click to signal the user’s acceptance of the proposal?” The closer the offer is to the action button, the more conspicuous it is.

Q3: “Did the website operator use a font size or color that would draw attention to the proposal?” The court says that it’s more likely conspicuous when sites use “a larger font or at least colored hyperlinks.” This is not a faithful characterization of Chabolla/Godun, which had exacting requirements for both fonts AND hyperlink presentations. It’s telling that the court favorably cites Selden v. Airbnb, a DC Circuit case (i.e., not a California case) that predates Chabolla/Godun, to support its summary rather than any Ninth Circuit case.

Q4: “Did the website operator and users engage in the kind of interaction that one would expect to include contractual terms?” Users expect terms with continuing relationships and not for one-off interactions.

These Four Questions are similar–but not identical–to the Ninth Circuit standards. Here’s how I summarize those standards in my Internet Law course:

Who Decides

The court says that if the facts about what happened aren’t in dispute, the court can rule on the formation process as a matter of law rather than send the formation question to the jury.

Application to This Case

Reasonably Conspicuous Notice

The court says the conspicuousness of the notice is a “close question.” Here’s why the court concludes that the notice was reasonably conspicuous:

the proposal on the fourth page followed a “simple design” that did not contain much clutter (other than a logo for Quicken Loans as the “Featured Provider”). Selden, 4 F.4th at 156. [Reminder: Selden is a DC Circuit opinion that predates Chabolla/Godun] In this respect, then, this page resembles the simple sign-up pages for Uber or Airbnb. And it differs from Fluent’s webpages in Berman, which contained other eye-catching images and information. Admittedly, the fifth page had far more terms than the fourth page. It also identified Dahdah’s consent to the specific “Terms of Use” in the second of four paragraphs of details. But we view this page as serving a belt-and-suspenders role for the fourth page’s proposal. And we resolve this case based on the notice that consumers would have received across the pages in combination….

LowerMyBills placed the proposal “directly” “below the action button” on each of the pages. And it used a “dynamic scrolling function” in which these pages automatically scrolled down as users inputted information in the boxes. So users would always see the offer on the same screen as the action buttons.

The plaintiff pointed out that the 5-screen formation process was confusing because the prior screens had a similar “calculate” button without terms. The court says that multi-screen processes are OK, noting that Uber’s process had two screens. But I also note (which the court didn’t) that Chabolla said: “three faulty notices do not equal a proper one.” I think the court would say that the fourth and fifth screens are each independently sufficient, but I wanted to see more thoughtful discussion about how the multiple screens reinforce or conflict with each other.

The court notes that LowerMyBills used a “very small font,” which calls it “a legitimate concern.” As I teach my students, the offer language should never be in the smallest font on the page. In Chabolla, a TOS formation failed in part because the offer language’s font was “notably timid in both size and color” (a critique that could apply here). In response, the court cherrypicks the precedent and says that the font size might be comparable to the font sizes used by Uber or LiveNation (both are pre-Chabolla cases, and Uber is a 2nd Circuit case). Also, the hyperlink was in “bright blue” on a white background, so “LowerMyBills did not hide the critical hyperlink using the same font color as the other text.” (The Ninth Circuit would treat a different font color for the links as mandatory, not a plus factor).

The court also struggles with whether the interactions with LowerMyBills was a one-off or ongoing relationship given that they were largely acting as a referral service (the court says this is also a close call). The court makes this empirical claim without a scintilla of empirical support: “reasonable users also would expect that the free referral service comes with some contractual strings attached….given that the site matches users with potential lenders, we cannot say the objective user would fail to anticipate some sort of continuing relationship.” [Insert goose meme: relationship with WHO?]

The court says that it’s OK the offer language was below the action button rather than above because “Other courts have enforced these offers when placed below rather than above the button that signaled the user’s assent.”

Manifestation of Assent

The court says concluding “that Dahdah took actions showing his assent to LowerMyBills’ offer becomes “straightforward” once we conclude that the offer was reasonably conspicuous.” The plaintiff clicked on the green “calculate” and “calculate your free results” buttons.

The plaintiff weakly attacked the call-to-action language, which lets the court skirt any serious analysis. But look back at the text: it says “by clicking the button above,” which we could assume refers to the green button right above that text. But there are surely other “buttons” on the screen above the text (remember, the court clipped the screenshot, improperly IMO), which would make the cross-reference ambiguous. If there are more “buttons” “above,” what should have happened?

Also, the Chabolla opinion rejected a TOS formation when the offer language said “by signing up” and the action button said “continue.” Would it matter to Chabolla that the offer language didn’t precisely describe the action button?

Arbitration Terms

The court acknowledges that LowerMyBills’ TOS was silent on many key provisions about the arbitration, such as selecting an arbitration service. However, the provision says that the Federal Arbitration Act applies, and the court says that’s good enough to gap-fill all missing arbitration terms.

Implications

Would this case have turned out differently if it had actually been in a California court? I believe Chabolla and Godun changed a lot about TOS formation, and this court mostly disregarded those cases to rely on pre-Chabolla cases, some of them from courts outside California. So, I believe this ruling is not consistent with California courts. But really, who knows? TOS formation remains another Calvinball area of Internet law.

To be fair, LowerMyBills’ TOS formation process might not be condemnable despite their sloppiness. Obviously it could be easily improved (2 clicks, please), but it’s pretty consistent with the old standards for TOS formation. However, I think it’s disingenuous to treat this opinion as consistent with California law without wrestling more thoughtfully with the effects of Chabolla and Godun.

Case Citation: Dahdah v. Rocket Mortgage, LLC, 2026 WL 194455 (6th Cir. Jan. 26, 2026)

The post The Sixth Circuit Wades Into Online TOS Formation (and Leaves Me More Confused Than Ever)–Dahdah v. LowerMyBills appeared first on Technology & Marketing Law Blog.

10. Are Websites Legally Equivalent to Exploding Coke Bottles?

Traditionally, tort law distinguishes between tangible items (chattels) and intangible services. Several doctrines impose additional liability for chattels, such as strict products liability and specialized forms of negligence.

Plaintiffs are trying to extend these chattel-based tort doctrines to intangible activities like publishing content. This raises the venerable Internet Law exceptionalism question: when should physical-space laws extend to online activity? In other words, is a user-generated content website the legal equivalent of an exploding Coke bottle?

In 2025, more lower-court judges applied strict liability and negligence doctrines to social media. It remains to be seen if these opinions will be upheld on appeal. Meanwhile, emboldened plaintiffs are now proliferating chattel-based theories against other online content publishers, including Generative AI model-makers and videogames.

9. A Swiss-Cheesed Section 230 Survived 2025

Section 230 survived 2025, and it will likely reach its 30th birthday. But will it survive beyond that? Section 230 looks more like Logan’s Run than Yoda.

Several Section 230 repeal bills are pending. Why tho? Section 230 is already shrinking and being swiss-cheesed even if Congress does nothing.

In particular, Section 230 took major hits last year in the Calise and YOLO opinions, which encouraged courts to create a virtually infinite number of common law exceptions to Section 230. This year, Doe v. Twitter added two new 230 exceptions for alleged breaches of a “reporting mechanism architecture” duty and NCMEC reporting.

8. TOS Formation Is More Difficult in the Ninth Circuit

The Ninth Circuit dramatically raised the bar on online TOS formation law in Chabolla and Godun. Together, these rulings provide several more reasons for courts to reject TOS formation. View all pre-Chabolla rulings upholding TOS formation with suspicion. And if you haven’t reassessed your TOS formation process after Chabolla and Godun, why not?

7. The SAD Scheme Takes Some Huge Hits

Prof. Fackrell posted a 2025 SAD Scheme year-in-review. Two standouts:

• Judge Kness said the SAD Scheme “should no longer be perpetuated in its present form.”
• Judge Ranjan (WDPa) and the District of New Jersey functionally banned the SAD Scheme in their courts.

6. Silicon Valley Execs Embrace Trump

Traditionally, Silicon Valley entrepreneurs have viewed regulators with suspicion and preferred technology solutions over legal ones. That stereotype is partially outdated. Many Silicon Valley leaders–such as Musk, Zuckerberg, Ellison, Benioff, and toss in Bezos for good measure–have enthusiastically embraced crony capitalism and anticipatory compliance with MAGA expectations (when it personally benefits them). [See also “How the Bay Area’s tech billionaires behaved in 2025.”] The oligarchs’ subservience to Trump diverges from mainstream Silicon Valley views, but those with the gold make the rules.

5. Internet Censorship Rolls Out Globally 

2025 global censorship lowlights include the UK Online Safety Act and Australia’s ban of under-16s from social media. We are well-past the high water mark of online free speech globally.

4. New Notice-and-Takedown Scheme for “Visual Intimate Depictions”

The Take It Down Act combines CSAM, non-synthetic non-consensual pornography, synthetic AI-generated pornography, and other “visual intimate depictions” into a single regulated content category. This lazy drafting ensures that the law confusingly overlaps and supplements existing law–and regulates constitutionally protected content.

The law creates a new notice-and-takedown scheme for intimate visual images (this mechanism goes into effect this summer). Services must resolve all of the following issues within 48 hours of receiving each takedown notice about intimate visual depictions:

• Can the service find the targeted item?
• Is anyone identifiable in the targeted item?
• Is the person submitting the takedown notice identifiable in the targeted item?
• Does the targeted item contain an intimate visual depiction of the submitter?
• Did the submitting person consent to the depiction?
• Is the depiction otherwise subject to some privilege? (For example, the First Amendment)
• Can the service find other copies of the targeted item?
• [repeat each step for each duplicate. Note the copies may be subject to a different conclusion; for example, a copy may be in a different context, like embedded in a larger item of content (e.g., a still image in a documentary) where the analysis might be different]

As you can imagine, this process will lead to many unwarranted removals, especially after vigilantes and trolls start weaponizing the process.

3. Can Anything Stop the Tidal Wave of AI Regulations?

State legislatures are in a regulatory frenzy over Generative AI. In response, Congressional Republicans unsuccessfully proposed a moratorium on state AI laws. When that failed, Trump issued a performative executive order discouraging some state AI laws.

Eventually, the Supreme Court will decide if Generative AI outputs qualify for First Amendment protection. If so, many of the state AI regulations are unconstitutional. If not, Generative AI is doomed.

2. The TikTok Divest-or-Ban Calvinball

In January, the Supreme Court upheld Congress’ TikTok divest-or-ban law. Shortly thereafter, the TikTok divest-or-ban deadline arrived on Biden’s last day in office. He took no action. President Trump then unilaterally extended the deadline without satisfying the statutory preconditions for an extension. Trump has since purportedly issued several more extensions without any statutory authority to do so. Trump also (without any authority to do so) had the DOJ tell app stores to keep TikTok available despite the law.

As a result, an undivested TikTok has remained publicly available throughout 2025 despite Congress’ ban. This outcome mocked the Supreme Court and Congress:

• The Supreme Court accepted Congress’ pretextual claims that TikTok threatened national security and consumer privacy. Trump’s defiance exposed that no one, including Congress, actually cared about these purported harms.
• Congress passively watched Trump disregard a valid enacted and alleged constitutional law.

Also, Congress intended the divest/ban to combat Chinese authoritarianism, but it actually facilitated Trump’s domestic authoritarianism. Trump used the law to broker a kleptocratic divestment to his buddies who will keep TikTok’s algorithm friendly to Trump.

I teach the TikTok ban in week 1 of my Internet Law course as Exhibit A of how Internet Law is Calvinball.

1. Supreme Court Upholds Mandatory Online Age Authentication (FSC v. Paxton)

I was wrapping up a 2-week China trip when the Supreme Court issued its opinion in Free Speech Coalition v. Paxton. I was eager to return to a country that has a First Amendment–so I could access most websites without a VPN; I wouldn’t have to show my passport to enter every museum; and I could freely criticize the government without fearing for my liberty. And then the Supreme Court’s FSC v. Paxton opinion made me question everything.

As just one example of the court’s wrecking ball to American principles: the majority adopted intermediate scrutiny to evaluate the law, even though neither party argued for that standard, and then the court analyzed intermediate scrutiny without giving either side the chance to argue the standard. Pure Calvinball.

By overturning 30-year-old precedent, the opinion newly opened the floodgates on mandatory online age authentication. The majority opinion claimed it was limited to children’s access to online pornography, but the opinion repeatedly and gratuitously went much further. Emboldened regulators around the country are proliferating age authentication mandates on a diverse range of topics. The constitutional battles over those laws will rage for years. Here’s a roundup of NetChoice’s 2025 efforts.

Regardless of how the legal battles turn out, Internet publishers are already deploying age authentication solutions to manage their legal risks, and they won’t be quick to rip out these implementations. Thus, the FSC opinion let the age authentication genie out of the bottle, and it will never go back in–regardless of what the courts or the Constitution say in the future.

FSC v. Paxton has locked us into an age-authenticated Internet, very different from the one we have today, with less privacy and security, less free speech, less content, and less resiliency. Everyone will be poorer for it.

Well, almost everyone. The censors are giddy–as are the age authentication vendors, who celebrating their good fortune with a black tie industry awards gala. See you there.

__

(Dis)Honorable Mentions

Other 2025 items of note:

• The first batch of district court rulings regarding copyright and Generative AI have been a mixed bag. A few courts have rejected copyright claims over training data, except when the source files were obtained via file sharing. We’ll see how these opinions fare on appeal. Amidst this uncertainty, Anthropic agreed to a massive $1.5B settlement.
• The Meta Pixels cases keep chugging along. There are now hundreds of rulings in Westlaw, and the plaintiffs are doubling-down against other unique identifiers. However, the pixel cases aren’t always doing well on appeal. Could the Meta Pixel litigation frenzy flame out when the appellate court speak up?
• The US State Department has threatened to ban content moderators and actually banned five Europeans associated with the DSA. US government censorship will continue until free speech improves.
• Many people have celebrated the GDPR as the gold standard of global privacy laws. But…it’s also stifling the EU and needs reworking (e.g., 1, 2).
• It’s the 5 year anniversary of Meta’s Oversight Board. How’s that been working out?
• It’s also the 5 year anniversary of the Copyright Claims Board. How’s that been working out? Reminder: Congress created the Copyright Claims Board in December 2020, when perhaps it should have had other priorities.

* * *

Previous year-in-review lists from 2024, 2023, 2022, 2021, 2020, 2019, 2018, 2017, 2016, 2015, 2014, 2013, 2012, 2011, 2010, 2009, 2008, 2007, and 2006. John Ottaviani and I previously listed the top Internet IP cases for 2005, 2004 and 2003.

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Generated by ChatGPT Oct. 2025

My publications in 2025:

• The “Segregate-and-Suppress” Approach to Regulating Child Safety Online
• Thirteen Objections to Mandatory Online Age Authentication
• Generative AI is Doomed
• The United States’ Approach to ‘Platform’ Regulation
• Internet Law casebook

The post 2025 Internet Law Year-in-Review appeared first on Technology & Marketing Law Blog.

It’s been a busy year on the Schedule A beat. In reflecting on the year, I’ve put together this quick round-up of ten of the top developments, in (rough) order of increasing importance. Thanks to Professor Goldman for letting me share it here, for anyone else who may be interested in a high-level view of what’s been going on in this space.

10. ABC Corp. I v. Schedule A, No. 2024-1471, 2025 WL 2354441 (Fed. Cir. Aug. 14, 2025).

There aren’t many appeals in Schedule A cases. There are even fewer that are pursued all the way through a decision. So every appellate decision is notable in that sense. This one is notable because it was the second appeal in (what is, as far as I can tell) the first Schedule A case to reach the Federal Circuit. Following a reversal in the first appeal, Judge Durkin—quite correctly—granted summary judgment of design patent non-infringement. The patent owner appealed. The Federal Circuit affirmed. All well and good. But, based on the weakness of the infringement claims, it shouldn’t have taken five years and two appeals to reach this result.

9. Dyson Tech. Ltd. v. David 7 Store, 132 F.4th 526 (7th Cir. 2025).

In this case, as in so many Schedule A cases, a number of the defendants defaulted. Dyson asked Judge Seeger for an award of “statutory damages in the amount of five thousand dollars ($5,000) per Defaulting Defendant as to certain Defendants pursuant to 15 U.S.C. § 1117(c) and an award of Defendants’ infringing product revenue under 15 U.S.C. § 1117(a) as to certain Defendants.” Judge Seeger refused; he awarded Dyson $1,000 per defendant in statutory damages instead.

At the end of his final judgment order, Judge Seeger stated:

The Court declines the request to award profits because Plaintiff offered evidence of revenue, not profits. Revenue and profits are not the same thing. The Court declines the invitation to assume that all of the revenue equals profits.

And while it’s true that revenue and profits are not the same thing, the Lanham Act specifically provides that “[i]n assessing profits the plaintiff shall be required to prove defendant’s sales only; defendant must prove all elements of cost or deduction claimed.” 15 U.S.C. § 1117. And the Seventh Circuit has previously interpreted that part of § 1117 to mean exactly what it says. See WMS Gaming Inc. v. WPC Prods. Ltd., 542 F.3d 601, 609 (7th Cir. 2008), as amended (Sept. 16, 2008) (“WMS has provided evidence of the profits that PartyGaming earned from its U.S. sales. In the absence of evidence from PartyGaming showing that deductions are warranted, WMS is entitled to the revenues supported by its evidence.”).

Dyson filed an uncontested appeal and the Seventh Circuit reversed. That part wasn’t particularly notable, given the statutory language and precedent in WMS Gaming.

What is interesting is that the Seventh Circuit seemed to go out of its way to note that “[t]he Lanham Act does give district courts the ability to modify an award of profits if the court deems the modification just” and expressly stated that “[o]n remand, if the district court wishes to award more or less than these profits, it retains the discretion to do so, as long as it makes a finding based on the facts of the case.”

And this case isn’t done yet. The Seventh Circuit issued its decision in March. The mandate of the Seventh Circuit was filed on the district court docket in April. Dyson filed a motion to modify the final judgment order in June. That is the last entry on the PACER docket. See Dyson Tech. Ltd. v. Schedule A, No. 1:22-cv-05936 (N.D. Ill.). It will be interesting to see how Judge Seeger rules.

8. Corsearch enters the game

In 2024, Corsearch (a company that is well-known to trademark practitioners) bought a company called Edison IP. Edison IP appears to be a kind of “finders firm” for potential Schedule A plaintiffs. It’s not clear from the outside exactly how many cases Corsearch is involved in. But it seems clear from their advertising, including this 2025 webinar, that they think there’s a significant amount of money to be made off these cases.

7. Geographic expansion

In its webinar, Corsearch talked about “testing acceptance” of the Schedule A model in districts outside of the Northern District of Illinois (which is currently the most popular venue):

Again, it’s not clear from the public dockets which cases Corsearch is involved in. But it’s worth paying attention to the cases being filed in new districts. In one particularly interesting example, a judge in Tennessee initially granted an asset freeze but then substantially reduced it—over the plaintiff’s objection—from over $4M to just under $900k. See Grand Isle Games, LLC v. Schedule A, No. 3:25-cv-00390, 2025 WL 3517858, at *1 (M.D. Tenn. Dec. 8, 2025). In doing so, the judge also expressed skepticism about the plaintiff’s RICO (yes, RICO) theory.

6. What’s going on in Pittsburgh?

It’s difficult to track the Schedule A cases that are filed in the WDPA because (as in some other districts), they aren’t filed exactly like they are in the NDIL. Instead of listing the defendant alias on a separate document, the aliases are listed on the complaint and the entire complaint is filed under seal. Nonetheless, it appears that the WDPA is becoming another popular venue for Schedule A cases. And at least one judge isn’t happy about it. Over the summer, Judge Ranjan started issuing standing orders in his Schedule A cases which, as Professor Goldman previously noted, “issues several instructions designed to curb SAD Scheme abuses.”

Notably, large portions of Judge Ranjan’s standing order appear to have been adopted as a district-wide standing order by DNJ. As far as I can tell, there were never a lot of Schedule A cases there; just a few starting in or around summer 2025. So that’s also interesting, including for the reasons Professor Goldman discussed previously.

5. The plaintiffs’ bar plays defense

In summer 2025, a website announced the creation of a new “bar association”—the Strategic Alliance for Fair Ecommerce, or “SAFE”—which appears to have been created for the purpose of defending the Schedule A business model. SAFE’s officers are prominent Schedule A plaintiffs’ attorneys, including two from the law firm Greer, Burns & Crain.

Greer, Burns & Crain also “partially funded” a forthcoming law review article that was first posted in 2025. The article was written by an attorney and a law student—both employed by an “anti-counterfeiting center” housed at (but apparently not funded by) Michigan State. SAFE has already cited this article in at least two Seventh Circuit amicus briefs.

4. Judge-shopping in the NDIL

In 2025, a number of NDIL judges called out—and some even sanctioned—parties or attorneys for (or in relation to) judge-shopping. See, e.g., Dongguan Deego Trading Company, Ltd. v. Junyao-US, No. 1:25-cv-04962 (N.D. Ill. July 31, 2025) (Tharp, J.) (covered previously here); Huang v. Shenzhen Zhaocheng Technology Co., Ltd., No. 1:25-cv-11411 (N.D. Ill. Dec. 10, 2025), ECF 11 (Pacold, J.). Concerns about judge-shopping (actual or potential) aren’t new in the Schedule A space; indeed, Judge Durkin talked about practices that “raised the specter” of judge-shopping in his first Bose decision. See 2019 WL 6210939, at *1 (N.D. Ill. Nov. 21, 2019). Nonetheless, this seems to be a rapidly-evolving area and there have been a number of developments, including in just the past few weeks. Watch this space for more soon.

3. Rule 11

Federal judges generally do not throw around the phrase “Rule 11” lightly. So it was notable to see that rule invoked in a number of Schedule A cases this year. Judge Daniel issued a particularly interesting set of decisions in October where he warned attorneys that certain things they were doing in Schedule A cases—things he had previously let them do—raised Rule 11 concerns:

• Nike, Inc. v. Quanzhou Yiyi Shoe Industry Co., 1:25-cv-03777 (N.D. Ill. October 10, 2025) (“Even then, while facing Rule 11 sanctions, the plaintiff has not come forward with any evidence indicating that the defendants in this case infringed the LEBRON mark….The only thing that saves the plaintiff in this instance is the Court’s prior approval of such orders. The Court will take this opportunity to remind plaintiff’s counsel of its obligations under Rule 11 and to put plaintiff’s counsel on notice that, from this point forward, the Court’s prior approval of such orders will not excuse such conduct in the future.”).
• Dorna Sports, S.L. v. Schedule A, No. 1:25-cv-09740 (N.D. Ill. Oct. 10, 2025), ECF 25 (“How the plaintiff can allege in good faith that this defendant would do certain things when plaintiff’s counsel concedes that he has not dealt with this defendant before is beyond this Court’s comprehension.…That the Court failed to appropriately scrutinize past motions to seal does not justify continued violations of Rule 11.”);
• Grumpy Cat Ltd. v. Schedule A, No. 1:25-cv-09451 (N.D. Ill. Oct. 10, 2025), ECF 18 (“The Court finds that the plaintiff had no competent evidence to support its allegations that the defendants initially named in this lawsuit would destroy evidence or hide or transfer assets. Yet the Court recognizes that past experience in this district, including before this Court, may have created a false sense that such allegations are acceptable. They are not.”).

And it’s not just Judge Daniel. For example, Judge Ellis also sanctioned a Schedule A plaintiff for “bringing [a] lawsuit without adequate investigation or resources.” Yan v. Schedule A, No. 1:24-cv-5403, 2025 WL 2098801, at *5 (N.D. Ill. July 25, 2025). Judges Pacold and Tharp also both invoked Rule 11 in the judge-shopping decisions mentioned above.

And it’s not just the NDIL. Judge Ranjan’s standing order, discussed above, also specifically mentions Rule 11 (“[T]o satisfy Rule 11, the complaint must plausibly plead allegations of personal jurisdiction, including contacts with the forum if specific jurisdiction is invoked.”). This language also appears in the DNJ standing order.

2. Smart Study Co. v. Shenzhenshixindajixieyouxiangongsi, No. 24-313, 2025 WL 3672740 (2d Cir. Dec. 18, 2025) (the “Baby Shark” case).

In Schedule A cases, the plaintiffs usually ask for—and receive—permission to serve the defendants by email. They also often allege that the defendants are Chinese (or at least “foreign”). Just a few weeks ago, the Second Circuit held that “email service on the Chinese defendants is prohibited by the Hague Service Convention, and thus improper under Rule 4(f)(3)” (previously covered on this blog here).

Does this mean that Schedule A defendants can no longer be served by email? Not yet. In Smart Study, the plaintiff (and presumably the court) assumed that the Hague convention actually governed service over the defendant-appellees. Presumably, and in appropriate circumstances, plaintiffs will try arguing that the convention doesn’t govern service in their cases.

And neither the Seventh nor the Eleventh Circuits have weighed in yet. This issue is, however, up on appeal in both:

• ADIDAS AG, v. localityi, No. 25-12597 (11th Cir.)
• Kangol LLC v. Hangzhou Chuanyue Silk Import & Export Co., No. 25-2205 (7th Cir.)

It will be interesting to see whether these circuits (which include the SDFL and NDIL) will follow the Second Circuit’s lead.

1. Eicher Motors Ltd. v. Schedule A, 794 F. Supp. 3d 543 (N.D. Ill. 2025).

There’s no real competition for the top spot. Love it or hate it, Judge Kness’ decision in Eicher Motors is clearly the biggest development in Schedule A litigation this year. (And I’m not just saying that because he cited me.)

Starting in the spring, Judge Kness “imposed an across-the-board stay in all newly-filed Schedule A cases on [his] docket” and took “a fresh and close look at the propriety of the Schedule A mechanism.” In his August decision in Eicher Motors, Judge Kness announced the result of his review.

He concluded that “the Schedule A mechanism should no longer be perpetuated in its present form.” Specifically, he opined that:

[T]he routine granting of preliminary injunctive relief in the absence of adversarial proceedings; the widespread sealing of judicial documents from public scrutiny; the pell-mell prejudgment freezing of defendants’ assets to ensure the practical availability of a legal remedy; and the mass joinder of multiple defendants is unjustified under the procedural rules and should not continue.

I won’t summarize it at length; I strongly recommend you read it yourself. It is well worth your time.

Of course, Judge Kness is only one judge. But his decision in Eicher Motors has already been cited by a number of his fellow judges, in the NDIL and elsewhere. It’s even caught the attention of at least some Seventh Circuit judges, who mentioned it in a recent unpublished decision:

On a final note, we acknowledge that a flood of similar claims of intellectual property infringement with no particular ties to the Northern District of Illinois have swamped and, understandably, troubled the district courts. See generally, Eicher Motors Ltd. v. P’ships & Unincorporated Ass’ns Identified on Schedule “A”, No. 25-CV-02937, 2025 WL 2299593, at *4 (N.D. Ill. Aug. 8, 2025). District courts have broad discretion in managing these cases, which often depart from “the general rule in favor of adversarial proceedings,” especially when they result in a default judgment. Id. Cf. Dyson Tech. Ltd. v. David 7 Store, 132 F.4th 526, 529 (7th Cir. 2025) (trademark plaintiffs may receive windfall when infringer fails to offer evidence of deductions).

Dolls Kill, Inc. v. MengEryt, No. 24-2841, 2025 WL 3033729, at *2 (7th Cir. Oct. 30, 2025) (footnote omitted).

Looking ahead:

In 2026, I’ll be watching a number of appeals closely, including the design patent case that currently on appeal in the Federal Circuit (full disclosure: I’m one of the amici): Jacki Easlick, LLC v. CJ Emerald (24-1538).

The Seventh Circuit has also scheduled an oral argument double-header for Friday, February 20, 2026 in both:

• Yinnv Liu v. Monthly, No. 25-02074
• Louis Poulsen A/S v. Lightzey, No. 25-02048 (Prof. Goldman joined an amicus brief in that case).

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Prior Blog Posts on the SAD Scheme

• Second Circuit Rejects Email Service on Chinese Defendants in Baby Shark SAD Scheme Case
• 11th Circuit Sidesteps the SAD Scheme’s Problems–Ain Jeem v. Schedule A
• Another Shill Article Tries to Normalize the SAD Scheme
• Court Sanctions Plaintiff’s Lawyer for Unverified Claims That the Defendant Was Hiding–Guangzhou Youlan Technology Co. Ltd. v. Onbrill World
• SAD Scheme Cases Are a Cesspool of IP Owner Overreaches–Nike v. Quanzhou Yiyi Shoe Industry
• District of New Jersey Adopts SAD Scheme Standing Order
• Court “Sanctions” SAD Scheme Judge Shopping—Crimpit v. Schedule A Defendants
• Chicago-Kent SAD Scheme Symposium TOMORROW
• Amicus Brief Urges Seventh Circuit to Award Attorneys’ Fees in SAD Scheme Case–Louis Poulsen v. Lightzey
• Court Rejects Schedule A Claims Against Sellers of Compatible Parts/Accessories (Cross-Post)
• Judge Kness: the SAD Scheme “Should No Longer Be Perpetuated in Its Present Form”–Eicher Motors v. Schedule A Defendants
• SAD Scheme Lawyers Sanctioned for Judge-Shopping–Dongguan Deego v. Schedule A
• Judge Ranjan Cracks Down on SAD Scheme Cases
• Because the SAD Scheme Disregards Due Process, Errors Inevitably Ensue–Modlily v. Funlingo
• SAD Scheme-Style Case Falls Apart When the Defendant Appears in Court—King Spider v. Pandabuy
• Serial Copyright Plaintiff Lacks Standing to Enforce Third-Party Copyrights–Viral DRM v 7News
• Another N.D. Ill. Judge Balks at SAD Scheme Joinder–Zaful v. Schedule A Defendants
• Judge Rejects SAD Scheme Joinder–Toyota v. Schedule A Defendants
• Another Judge Balks at SAD Scheme Joinder–Xie v. Annex A
• Will Judges Become More Skeptical of Joinder in SAD Scheme Cases?–Dongguan Juyuan v. Schedule A
• SAD Scheme Leads to Another Massively Disproportionate Asset Freeze–Powell v. Schedule A
• Misjoinder Dooms SAD Scheme Patent Case–Wang v. Schedule A Defendants
• Judge Hammers SEC for Lying to Get an Ex Parte TRO–SEC v. Digital Licensing
• Judge Reconsiders SAD Scheme Ruling Against Online Marketplaces–Squishmallows v. Alibaba
• N.D. Cal. Judge Pushes Back on Copyright SAD Scheme Cases–Viral DRM v. YouTube Schedule A Defendants
• A Judge Enumerates a SAD Scheme Plaintiff’s Multiple Abuses, But Still Won’t Award Sanctions–Jiangsu Huari Webbing Leather v. Schedule A Defendants
• Why Online Marketplaces Don’t Do More to Combat the SAD Scheme–Squishmallows v. Alibaba
• SAD Scheme Cases Are Always Troubling–Betty’s Best v. Schedule A Defendants 
• Judge Pushes Back on SAD Scheme Sealing Requests
• Roblox Sanctioned for SAD Scheme Abuse–Roblox v. Schedule A Defendants
• Now Available: the Published Version of My SAD Scheme Article
• In a SAD Scheme Case, Court Rejects Injunction Over “Emoji” Trademark
• Schedule A (SAD Scheme) Plaintiff Sanctioned for “Fraud on the Court”–Xped v. Respect the Look
• My Comments to the USPTO About the SAD Scheme and Anticounterfeiting/Antipiracy Efforts
• My New Article on Abusive “Schedule A” IP Lawsuits Will Likely Leave You Angry
• If the Word “Emoji” is a Protectable Trademark, What Happens Next?–Emoji GmbH v. Schedule A Defendants
• My Declaration Identifying Emoji Co. GmbH as a Possible Trademark Troll

The post Schedule A: Ten Notable Developments in 2025 (Guest Blog Post) appeared first on Technology & Marketing Law Blog.