“Grok, is it bad when TOS formation fails?”

“Grok, what are best practices for TOS formation and does our current TOS formation process satisfy those?”

* * *

The plaintiff claims Grok “disclosed private and confidential information.” Grok sought to transfer the case to N.D. Tex. per its TOS forum selection clause. Everyone agrees the case should transfer if the TOS was properly formed. It was not.

The Wrap Taxonomy

Here is the applicable TOS formation screen at account signup. Everyone agrees this is a sign-in-wrap.

Here is the screenshot when Grok users submit queries:

The court says the chat screen is closest to a sign-in-wrap as well.

Thus, the court follows the now-standard Chabolla framework for reviewing sign-in-wraps.

Transaction Context

Unhelpfully, the parties obviously didn’t think this factor was important:

the Parties devote little space to addressing the transactional context at play here. Defendant offers one sentence in a footnote in its reply brief, citing to Oberstein and contending that “signing up for an account is the type of transaction that contemplates an ongoing relationship.” Plaintiff does not discuss this issue.

This raises another question for Grok: “Grok: is it good when a litigant fails to provide advocacy for one of the elements the court will analyze?”

The court says the plaintiff should have assumed there were applicable terms:

The first factor is that, although an account is “not required” to use Grok, Plaintiff chose to make one anyway. The second is that, after making that account, Plaintiff used Grok repeatedly “throughout 2025 and 2026” to “enter[] queries related to sensitive information about finances, investment strategy, private health conditions, business projects, and other private information.” In the Court’s view, a user who affirmatively chooses to make an account when doing so is optional and recurrently uses the corresponding web service should reasonably contemplate “some sort of continuing relationship” accompanied by terms and conditions. That Plaintiff used Grok to discuss sensitive personal information also weighs in favor of the notice requirement.

From my perspective, anyone who voluntarily chooses to use Grok extensively has placed themselves into a caveat emptor situation. It’s like the Farmer and the Snake parable.

Reasonable Notice on the Sign-Up Screen

The court then turns to the visibility of the TOS offer language, starting first with the sign-up screen. The court says there is a visual discontinuity between the TOS offer and the acceptance buttons:

although a reasonable user is presented with four sign-up methods, he ultimately selects only one. Having made that selection, the other sign-up options necessarily become “superfluous.” Even if a user chose the sign-up option closest to the bottom of the webpage (the option to “Sign up with Google”), Defendant’s contention that the notice is “positioned immediately below” is still incorrect. The language that is directly below the “Sign up with Google” button reads: “Already have an account? Sign in[.]” A reasonable user who is on Defendant’s sign-up page to sign up for a Grok account, which is how Defendant contends Plaintiff agreed to its terms, would likely see that text and read no further because, by definition, it does not pertain to him

The court is doing some tricky but important work here. Basically, she’s saying that once a user encounters language that isn’t applicable to them, they will stop reading and proceed. So here the “Already have an account? Sign in” language acts as a visual barrier that moots everything below it for a user who is signing up for the first time. Perhaps if the TOS offer language were closer to the buttons and more prominent, it could have overcome that visual barrier. But putting the language above the sign-up buttons would have avoided this limitation. (Or, better yet, two clicks).

The court doesn’t like the TOS offer language presentation either:

The contrast between the white hyperlink and the black background is notable, but it says nothing of the contrast between the hyperlink and the text immediately adjacent to it….the difference between light gray and white is a matter of degree and hardly one that maximizes visibility. Moreover, any distinction that this color variation provides is offset by the fact that other non-clickable text such as the “Create your account” heading is also in white…. the single colorful feature—the multi-colored Google logo on the “Sign up with Google” button—is near the center of the screen, likely drawing a reasonable user’s attention more than the monochromatic notice text at the bottom of the page does

I guess the judge doesn’t love monochromatic screens as much as Musk does?

The court summarizes:

Although the transactional context suggests that Plaintiff should have expected to be bound by contractual terms, the Court finds that the sign-up screen notice is not reasonably conspicuous because of “the notice’s distance from relevant action items, its placement outside of the user’s natural flow, and its font—notably timid in both size and color.”

I’m still waiting for courts to clarify what the “user’s natural flow” means. It brings to mind the great Dave Mason song (RIP).

Chat Screen TOS Formation

The chat screen formation evaluation doesn’t fare any better (and maybe a little worse?):

it is patently untrue that the notice is “directly beneath the query box.” Nothing is directly beneath the query box except a lot of empty space. Moreover, the query box is the only action item on the chat page, and as such a user’s “most obvious and natural next step” is to input text into that box. Because the query box is on the top third of the page and no additional graphics or text give the user any reason to look beyond it, the notice at the bottom of the website is “buried” beyond “the periphery” of where a user would be looking.

A “lot of empty space” “buries” the TOS offer language.

The court also noticed the lack of underlining to signal the link: “The only factor distinguishing the hyperlinked text and the adjacent text is the font color, and, as the Court noted, white and light gray are not “contrasting font colors.””

X pointed to a long list of court cases upholding its TOS formation. The court says there were factual differences in all of those cases. I imagine this will be contested on appeal.

Implications

One more question for Grok: “Grok, after reading this opinion, please suggest the six most important changes we should make to increase the likelihood of TOS formation.” The list would be trivially easy to implement; and there’s no reason Grok waited this long to figure it out.

This opinion is a good example of how Chabolla expedites the TOS formation failure in screens like this. This implementation was possibly marginally passable pre-Chabolla. Now, in my opinion, it’s clearly deficient, but in easily avoidable ways.

Case Citation: Skaggs v. X.ai, LLC, 2026 WL 2352969 (N.D. Cal. August 13, 2026). Defense counsel in this case is Kenneth Michael Trujillo-Jamison, Willenken LLP.

* * *

BONUS: Trimble v Entrata, Inc., No. 25-1975 (4th Cir. Aug 11, 2026).

This case involves the RentalPortal service, which allows tenants to pay their rent but charges a convenience fee for the pleasure of doing so. It sounds like RentalPortal used a clickwrap: “Although users could not finalize their rent payments until they had checked the box indicating their agreement to the Terms, they were not required to click on, scroll through, or otherwise actually review the hyperlinked Terms.”

Tenants sued for the convenience fee collection. RentalPortal moved to send the case to arbitration. TOS formation isn’t at issue. Instead, the plaintiffs challenge consideration.

In an echo from Harris v. Blockbuster from 2009 and the more recent Johnson case, a majority of the panel (over a dissent by Judge Rushing) says the arbitration clause is illusory because “Appellant’s Terms include a Change Clause that expressly gives it the unfettered discretion to unilaterally modify the arbitration agreement without any meaningful limitation.”

The change clause reads:

At [ResidentPortal], [users] are bound by the version of this Agreement that is in effect on the date of [the user’s] visit. This Agreement may change from time to time, so please review it when you visit [ResidentPortal].

The majority says:

Under a plain reading, a person who visits ResidentPortal is automatically bound by the Change Clause the moment ResidentPortal is accessed. The fact that users must click the assent button as part of the user interface in order to make rental payments does not alter the fact that any user paying rent is already bound by any modified terms merely by visiting ResidentPortal in the first instance. We have repeatedly held this type of “change in terms” clause to constitute an illusory promise under Maryland law….

there is no language in the Change Clause here requiring Appellant to provide its users with notice before or even after modifying the terms….

the Notices Clause states that any notices Appellant chooses to provide will be posted to ResidentPortal. But it also provides that the Terms automatically apply if and when Appellee visits ResidentPortal. So, there was no way for Appellee to receive notice of modifications or review them without automatically assenting to them. Therefore, the purported ability of Appellee to opt out of accessing the website and thereby decline the modified terms is illusory because it exists solely at Appellant’s pleasure…

it is entirely in Appellant’s discretion to modify the Terms, and the only restriction on that authority is Appellee’s choice to access ResidentPortal to pay her rent — which is no choice at all, as she is automatically bound by the version of the Terms posted the moment she accesses the website, even though at the time she accesses it, she would not know whether there is any posted notice of new Terms.

The majority concludes:

because the Terms here “allow[ed] [Appellant] to escape all of its contractual obligations at will” and did not provide Appellee with effective notice of any modifications, the agreement to arbitrate here is precisely the type of promise we have previously found to be illusory under Maryland law

Arbitration denied.

Given what we learned in Harris v. Blockbuster 17 years ago, it’s incredible that in 2026 we’re seeing these kinds of TOS amendment implementations. Any TOS amendment clause that purports to permit TOS amendments without actual notice to the users is a toxic provision for the entire TOS. Here, RentalPortal can easily form a new contract through a clickwrap each time the user pays rent, so this outcome was incredibly easy to avoid.

The post Grok’s TOS Formation Failed–Skaggs v. X.ai appeared first on Technology & Marketing Law Blog.

• it’s in the Western District of Texas, not the more typical N.D. Ill.
• it’s a copyright claim rather than the more typical trademark claim
• it’s against a single defendant, not dozens or hundreds of defendants
• it’s filed by the Valley & Summit Law firm, a relatively new firm (formed 2024) I haven’t encountered before. The firm’s principal says in her bio: “Ms. Ouyang started her IP practice by helping cross-border e-commerce stores defend draconian IP lawsuits. Over the years, Ms. Ouyang accumulated abundant experience in the fun area of IP litigation.” Switching sides and bringing SAD Scheme lawsuits is my idea of “fun” too.
• it’s in front of a new judge, Judge Andrew Bray Davis, who just took the bench in April. I’ve previously suggested that recent judges tend to be more skeptical of SAD Scheme cases than judges who have rubber-stamped them for years, though I’m not sure this opinion supports that hypothesis.

Add all of these differences up, and the resulting decision reads a little differently than other SAD Scheme opinions I’ve seen.

TRO Against Infringement

The plaintiff has copyright registrations for “two-dimensional artistic works entitled ‘Bohemian Printing.'” Here is the registered work (left) and an allegedly infringing product (right):

The defendant’s version look similar or identical to the plaintiff’s version except that it omits the outer ring. Judge Davis says “a side-by-side comparison of Plaintiff’s designs and Defendant’s wares reveals little—if any—in the way of differences between the two designs.”

Judge Davis says the alleged infringement could cause irreparable harm because “damages fail to address loss of control—as well as damage to reputation and goodwill.” It’s troubling to see a copyright injunction predicated on concerns about the plaintiff’s goodwill, which normally should be the province of trademark law. Even the reputation concern is dubious. The judge further conflates this copyright case with trademark law when considering the public interest, saying the “public also has a clear interest in not being deceived or confused as to the origin, source, or sponsorship of copyrighted products.” Copyright law generally has little to say about products’ origin, source, or sponsorship.

Asset Restraint

The plaintiff requested an order restraining the defendant’s assets to preserve money to cover damages. Judge Davis rejects the request because “Plaintiff seeks to freeze all of Defendant’s assets without either showing that they are all profits or offering a way to separate the profits from the damages.” Citing Grupo Mexicano, Judge Davis says that asset restraints can only preserve “the availability of equitable relief in a final judgment.” In copyright cases, profit disgorgement is an equitable remedy, but actual damages are not. Here, the pleadings don’t make an adequate distinction between the two: “Plaintiff offers no evidence of even the rough proportion of Defendant’s assets attributable to infringement, and without it the Court cannot tether an asset freeze to the ultimate equitable relief Plaintiff seeks—the infringer’s ‘additional profits.'”

But…the judge has no visibility into how the online marketplaces like Amazon will process the infringement-based TRO. If Amazon suspends the account based on the TRO, the assets will be frozen despite the court’s legal distinction.

In a subsequent ruling (on July 16), the court orders the asset freeze anyway based on the following report the plaintiff obtained from Amazon (through expedited discovery):

Defendant has grossed $641,077.99 from 15,136 individual unit sales of 11 different allegedly infringing products over an unspecified time period. Defendant’s U.S. Amazon account held a balance of $1,092.69 when Plaintiff submitted her most recent motion to the Court

Sealing Request

Judge Davis temporarily accepted the sealing request. It was lifted on July 27, 2026, only after the plaintiff voluntarily dismissed the defendant. This is what the sealed complaint looked like:

The post-dismissal unsealing is likely why I learned about the opinion only now.

Service Via Email

The Second and Seventh Circuits have limited email service to Chinese defendants. Nevertheless, based on Fifth Circuit precedent, Judge Davis says that email service is in his discretion, and he orders it. Sounds like a circuit split needs resolution?

It is unclear if/when service was ever effectuated. My guess is that the defendant learned of the lawsuit from Amazon’s asset freeze, and that triggered an extrajudicial settlement regardless of service.

Request for Expedited Discovery

Judge Davis grants that request too.

Bond

The judge approves a $5k bond, which seems quite low based on what the judge knew at the time. I’ve lamented before about the lack of guidelines for bond-setting in ex parte cases.

The “Addendum”

The opinion includes this unusual passage:

Cases like this one requesting ex parte restraint and expedited discovery under seal—often against numerous defendants listed on a “Schedule A”—are being filed at pace throughout the federal courts. See Eric Goldman, A Sad Scheme of Abusive Intellectual Property Litigation, 123 COLUM. L. REV. 183, 193–202 (2023) (dissecting the proliferation of Schedule A cases and their legal shortcomings). For good reason, some courts have found many of these requests to fall short of the clear letter of the law. See, e.g., Price v. Individuals, P’ships, & Unincorporated Ass’ns Identified on Schedule A., 821 F. Supp. 3d 1315 (M.D. Fla. 2026) (Mizelle, J.).

Because this specific case involves only a single defendant, it appears to avoid many of the pitfalls present in Schedule A cases. But it is difficult to be sure. “The whole point of our adversarial legal system is that the robust exchange of competing views helps ensure the discovery of truth and avoid error.” United States v. Quintanilla-Matamoros, 164 F.4th 366, 375 (5th Cir. 2026) (Ho, J., concurring) (cleaned up). Yet Plaintiff in this case, like the plaintiffs in the Schedule A cases, not only demands emergency relief outside of the adversarial process, but likely anticipates seeking a default judgment that is also outside the adversarial process. In these circumstances, it is imperative for courts not only to be vigilant that any relief awarded is lawful, but to be willing to reconsider—sua sponte if necessary—relief already awarded if that relief should not have been granted in the first place.

But what if the TRO causes the case to “settle” before the judge gets another crack at it to fix any past errors? The case settled on July 27, 11 days after the court approved the Amazon asset freeze.

I wasn’t quite sure what to make of this addendum. Was the judge issuing a warning to the plaintiff? Leaving a note to himself? Something else?

Also, the judge says courts must be “vigilant that any relief awarded is lawful” in ex parte proceedings. Does this opinion adequately demonstrate such vigilance?

Implications

Given the plaintiff and defendant are both in China, I didn’t see any clear reason why the case was filed in W.D. Tex. instead of alternative venues, such as California (where the plaintiff’s lawyers are based) or Illinois (where most SAD Scheme cases are litigated). This looks like forum-shopping, but why W.D.Tex.?

This is another SAD Scheme case between Chinese plaintiffs and defendants, taking place in US courts. The Chinese plaintiffs prefer the SAD Scheme because US courts will disregard the rule of law even more than Chinese courts would.

Given that this lawsuit was against a single defendant and was not a high volume operation like a typical SAD Scheme, I didn’t see any legitimate reason why the plaintiff chose the SAD Scheme template over the standard copyright infringement playbook. To me, it’s another datapoint illustrating how the SAD Scheme is functionally displacing all IP litigation. This is because plaintiffs get better outcomes via the SAD Scheme than than they would get from the standard package of rights actually conferred to them via IP and civil procedure law. As the maxim goes, plaintiffs will keep doing it so long as it works. In this case, despite the judge’s quirky addendum, the plaintiff got essentially everything they asked for. So why wouldn’t plaintiffs keep the good times rolling?

Reflecting the case’s novelty, at least to him, Judge Davis goes through most of the plaintiff’s arguments in greater-than-average detail. Yet, as is typical with ex parte proceedings, he ultimately sides with the plaintiff on most questions. Judge Davis correctly spotted some of the weak spots of the SAD Scheme, and yet arguably the scheme sucked him in anyway.

Case Citation: Cai v. Chaozhoushi Yitong Dianzi Shangwu Youxiangongsi, 2026 WL 2294410 (W.D. Tex. June 26, 2026).

Prior Blog Posts on the SAD Scheme

• Federal Circuit Rebuffs SAD Scheme Plaintiff–Shenzhen Jisu v. Annex A Defendants
• Court Rebuffs Emojico’s SAD Scheme TRO Request
• Seventh Circuit Limits Email Service to Chinese SAD Scheme Defendants–Kangol v. Hangzhou Silk
• SAD Scheme Defendant Gets Damages Payout from the Bond–Bright Head v. Schedule A Defendants
• Judge Shopping & Schedule A (Guest Blog Post)
• SAD Scheme Plaintiff Gets Default Win But Blows the Layup on Damages–Shenzen Huajie v. Shenzen Leyibei
• SAD Scheme Copyright Plaintiff Must Compensate Defendants–Shenzhen Langmi v. Schedule A Defendants
• A “But They’re ‘Counterfeiters’!” Argument Doesn’t Clinch a SAD Scheme TRO–Emojico v. Schedule A Defendants
• New Article Alert: “SAD Scheme Standing Orders”
• Greer Burns Law Firm Sanctioned for “Willfully Abusive” and “Egregious” SAD Scheme Judge-Shopping
• Schedule A: Ten Notable Developments in 2025 (Guest Blog Post)
• 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 Every SAD Scheme Opinion Is Weird In Its Own Way–Cai v. Chaozhoushi Yitong Dianzi Shangwu Youxiangongsi appeared first on Technology & Marketing Law Blog.

Is “Battery Tender” Generic?

The court says that the term “battery tender” isn’t inherently generic because (1) the USPTO registered the term, and “registration puts a heavy thumb on the scale against genericness,” (2) it’s better characterized as a descriptive term because “tend is more a metaphorical than literal description of what a battery tender does,” and it has achieved secondary meaning over 30+ years, and (3) the plaintiff’s principal coined the term.

Keyword Advertising

Keyword bidding doesn’t constitute trademark infringement for a simple reason: It’s not “likely to cause consumer confusion with the plaintiff’s mark.” And it’s unlikely to cause consumer confusion with the plaintiff’s mark for an equally straightforward reason: The use of the plaintiff’s mark for keyword-bidding purposes occurs “behind the scenes,” so to speak. Consumers don’t—indeed, can’t—see the plaintiff’s mark—all that’s visible here is a NOCO ad….A consumer who sees a NOCO-sponsored ad, whether or not driven by keyword bidding, may well recognize the promoted NOCO product as an alternative to consider, but he’s unlikely for that reason alone to mistake it for Deltona’s own offering. Accordingly, confusion here depends on whether Deltona’s mark is visible in NOCO’s ad, not whether an ad that does not display or otherwise reference Deltona’s mark might have been (invisibly) triggered by the mark’s behind-thescenes use as a keyword.

The court acknowledges that keyword ads may distract consumers. However, “so long as NOCO’s ads don’t hold that company out as selling “battery tenders,” consumers aren’t likely to be confused—just potentially overwhelmed by the presence of alternative products.”

The court summarizes: “In holding that keyword bidding can’t constitute trademark infringement, we join the unanimous consensus of our sister circuits.” For this reason, the jury’s damages award needs to be reduced to the extent it was predicated on keyword ads.

Trademark Usage in Amazon Ad Text

This is wheelhouse trademark infringement; NOCO’s conduct was likely to mislead consumers into thinking that it sold “battery tenders.” NOCO insists that its ads weren’t confusing because Amazon marked them as “sponsored” and customers would therefore recognize them as ads. Even so, the sponsored ads’ content effectively stated that NOCO sold battery tenders, which it doesn’t—only Deltona does.

Usage in Amazon Product Description Text

Product descriptions are “below the line,” so to speak, and in smaller print—they are meant to inform a diligent customer rather than grab his attention. As a result, consumers are probably less likely to focus on them in the way they do the ads.

[Citation clearly needed for the last point. The panel appears to be making up hypotheses about consumer behavior.]

The court nevertheless ratifies the jury finding: “We think it clear that a reasonable jury could find that the product descriptions were part of an effort to misappropriate Deltona’s goodwill and confuse consumers.”

NOCO argued that the “battery tender” references in the product descriptions should be excused like keyword advertising. The court distinguishes product listings from keyword ads:

• “Even if less conspicuous or prominent than the ad’s main text, it isn’t entirely invisible to the consumer’s eye in the way that a behind-the-scenes keyword is.”
• The ad’s “sponsored” label would alert consumers of the differences between the companies. [This also seems like a dubious empirical claim.]

The court summarizes:

Even if consumers didn’t actually read NOCO’s product descriptions, NOCO impermissibly held itself out in those descriptions as a seller of battery tenders, rather than a provider of alternatives to battery tenders, as it did, for instance, when using a keyword-bidding strategy to drive traffic to its own products. The inclusion of “battery tender” in the description automatically not only affected Amazon search results but also drove shoppers searching for Deltona’s battery tenders to NOCO chargers without alerting them in any way—through a “sponsored” tag or otherwise—that they weren’t really looking at battery tenders.

[To be fair, NOCO’s attempts to equate keyword ads with product listings seems like it was never destined for success. NOCO had an appellate team of 7 Biglaw lawyers, apparently led by Jones Day and supported by Goodwin Proctor and Troutman Pepper. That’s a lot of very expensive lawyers who signed off on seemingly dubious positions. FWIW, Deltona’s appellate team was 3 lawyers from Shutts & Bowen.]

Other Marketing References

“The evidence supports the conclusion that, from the top down, NOCO actively tried to sow confusion about what a battery tender is.”

Injunction

Among other things, the lower court enjoined NOCO’s use of the term “tender,” even though Deltona’s trademark is “battery tender” and not just “tender.” The appellate court circles one of NOCO’s Amazon ads: “More Than Just A Tender. The Ultimate Charger.” To me, that sounds like comparative advertising or free use of a dictionary word that isn’t covered by a trademark registration, but the appellate court calls that a “loophole.” As a result, the appellate court upholds the injunction.

Implications

NOCO get a new trial to recompute actual damages, stripped of the keyword ads and some other pieces the appellate court reversed. I imagine the parties will settle rather than do a retrial because trial prep would likely cost more than any adjustments to the damages amount.

You can see what happens when a descriptive term (“battery tender”) gets weaponized. A competitor thought they could freely use the term, went too far, and will pay a high price for their error.

Despite the mostly-bad news for NOCO, the ruling does have a major bright spot: the court’s declaration that the 11th Circuit permits competitive keyword advertising, at least so long as the resulting ads don’t include the trademark in the text. This outcome isn’t surprising given how the 2nd and 9th Circuits have emphatically shut down keyword advertising cases. Still, extending that principle to a new geographic region is welcome news.

Emoji Discussion!

The court includes the following transcript of NOCO’s “virtual brainstorming session”:

The opinion shows its emojis! Yay! However, FN 2 says:

The documents in the record converted the emojis to their shortcodes (e.g., :joy: or :rolling on the floor laughing:). For clarity, we have replaced the shortcodes with the actual emojis to reflect the exchange as it presumably appeared between the NOCO employees.

There are a couple of problems here:

• The parties didn’t properly prepare the evidence, so the emojis weren’t properly recorded in the record.
• The judge can’t accurately recreate the emojis this way. First, each platform depicts the shortcodes differently, and the judge doesn’t explain how he picked these particular depictions. The images he picked may not accurately reflect how the emojis were actually depicted. Plus, because emoji depictions evolve over time, shortcodes today may produce a different depiction than the shortcodes did at the relevant time period. Further, emojis may differ in how the sender and recipient see them. As I say in my judicial trainings on emojis, emoji depictions should come in pairs. The judge assumed a canonical depiction, but that is typically a fallacy.

Case Citation: Deltona Transformer Corporation v. NOCO Company, 2026 WL 2236806 (11th Cir. Aug. 4, 2026)

* * *

More Posts About Keyword Advertising

* Another Reminder: Lawsuits Over Competitive Keyword Ads Are Stupid
* Post-Mortem of a Misguided Logo Trademark Lawsuit–LegalForce v. Internet Brands
* The Initial Interest Confusion Doctrine Refuses to Die
* Court Rejects Initial Interest Confusion Claims for Competitive Keyword Ads–Regalo v. Aborder
* Lawsuits Over Competitive Keyword Advertising Are Still Stupid–NRRM v. American Dream Auto Protect
* NJ Supreme Court Blesses Lawyers’ Competitive Keyword Ads (With a Baffling Caveat)
* Ninth Circuit Tells Trademark Owners to Stop Suing Over Competitive Keyword Ads–Lerner & Rowe v. Brown Engstrand
* Second Circuit Tells Trademark Owners to Stop Suing Over Competitive Keyword Advertising
* Catching Up on Two Keyword Ad Cases
* Competitor Isn’t Responsible for Google Knowledge Panel’s Contents–International Star Registry v. RGIFTS
* TIL: “Texas Tamale” Is an Enforceable Trademark–Texas Tamale v. CPUSA2
* Internal Search Results Aren’t Trademark Infringing–PEM v. Peninsula
* When Do Inbound Call Logs Show Consumer Confusion?–Adler v McNeil
* Court Denies Injunction in Competitive Keyword Ad Lawsuit–Nursing CE Central v. Colibri
* Competitive Keyword Ad Lawsuit Fails…Despite 236 Potentially Confused Customers–Lerner & Rowe v. Brown Engstrand
* More on Law Firms and Competitive Keyword Ads–Nicolet Law v. Bye, Goff
* Yet More Evidence That Keyword Advertising Lawsuits Are Stupid–Porta-Fab v. Allied Modular
* Griper’s Keyword Ads May Constitute False Advertising (Huh?)–LoanStreet v. Troia
* Trademark Owner Fucks Around With Keyword Ad Case & Finds Out–Las Vegas Skydiving v. Groupon
* 1-800 Contacts Loses YET ANOTHER Trademark Lawsuit Over Competitive Keyword Ads–1-800 Contacts v. Warby Parker
* Court Dismisses Trademark Claims Over Internal Search Results–Las Vegas Skydiving v. Groupon
* Georgia Supreme Court Blesses Google’s Keyword Ad Sales–Edible IP v. Google
* Competitive Keyword Advertising Claim Fails–Reflex Media v. Luxy
* Think Keyword Metatags Are Dead? They Are (Except in Court)–Reflex v. Luxy
* Fifth Circuit Says Keyword Ads Could Contribute to Initial Interest Confusion (UGH)–Adler v. McNeil
* Google’s Search Disambiguation Doesn’t Create Initial Interest Confusion–Aliign v. lululemon
* Ohio Bans Competitive Keyword Advertising by Lawyers
* Want to Engage in Anti-Competitive Trademark Bullying? Second Circuit Says: Great, Have a Nice Day!–1-800 Contacts v. FTC
* Selling Keyword Ads Isn’t Theft or Conversion–Edible IP v. Google
* Competitive Keyword Advertising Still Isn’t Trademark Infringement, Unless…. –Adler v. Reyes & Adler v. McNeil
* Three Keyword Advertising Decisions in a Week, and the Trademark Owners Lost Them All
* Competitor Gets Pyrrhic Victory in False Advertising Suit Over Search Ads–Harbor Breeze v. Newport Fishing
* IP/Internet/Antitrust Professor Amicus Brief in 1-800 Contacts v. FTC
* New Jersey Attorney Ethics Opinion Blesses Competitive Keyword Advertising (…or Does It?)
* Another Competitive Keyword Advertising Lawsuit Fails–Dr. Greenberg v. Perfect Body Image
* The Florida Bar Regulates, But Doesn’t Ban, Competitive Keyword Ads
* Rounding Up Three Recent Keyword Advertising Cases–Comphy v. Amazon & More
* Do Adjacent Organic Search Results Constitute Trademark Infringement? Of Course Not…But…–America CAN! v. CDF
* The Ongoing Saga of the Florida Bar’s Angst About Competitive Keyword Advertising
* Your Periodic Reminder That Keyword Ad Lawsuits Are Stupid–Passport Health v. Avance
* Restricting Competitive Keyword Ads Is Anti-Competitive–FTC v. 1-800 Contacts
* Another Failed Trademark Suit Over Competitive Keyword Advertising–JIVE v. Wine Racks America
* Negative Keywords Help Defeat Preliminary Injunction–DealDash v. ContextLogic
* The Florida Bar and Competitive Keyword Advertising: A Tragicomedy (in 3 Parts)
* Another Court Says Competitive Keyword Advertising Doesn’t Cause Confusion
* Competitive Keyword Advertising Doesn’t Show Bad Intent–ONEpul v. BagSpot
* Brief Roundup of Three Keyword Advertising Lawsuit Developments
* Interesting Tidbits From FTC’s Antitrust Win Against 1-800 Contacts’ Keyword Ad Restrictions
* 1-800 Contacts Charges Higher Prices Than Its Online Competitors, But They Are OK With That–FTC v. 1-800 Contacts
* FTC Explains Why It Thinks 1-800 Contacts’ Keyword Ad Settlements Were Anti-Competitive–FTC v. 1-800 Contacts
* Amazon Defeats Lawsuit Over Its Keyword Ad Purchases–Lasoff v. Amazon
* More Evidence Why Keyword Advertising Litigation Is Waning
* Court Dumps Crappy Trademark & Keyword Ad Case–ONEPul v. BagSpot
* AdWords Buys Using Geographic Terms Support Personal Jurisdiction–Rilley v. MoneyMutual
* FTC Sues 1-800 Contacts For Restricting Competitive Keyword Advertising
* Competitive Keyword Advertising Lawsuit Will Go To A Jury–Edible Arrangements v. Provide Commerce
* Texas Ethics Opinion Approves Competitive Keyword Ads By Lawyers
* Court Beats Down Another Competitive Keyword Advertising Lawsuit–Beast Sports v. BPI
* Another Murky Opinion on Lawyers Buying Keyword Ads on Other Lawyers’ Names–In re Naert
* Keyword Ad Lawsuit Isn’t Covered By California’s Anti-SLAPP Law
* Confusion From Competitive Keyword Advertising? Fuhgeddaboudit
* Competitive Keyword Advertising Permitted As Nominative Use–ElitePay Global v. CardPaymentOptions
* Google And Yahoo Defeat Last Remaining Lawsuit Over Competitive Keyword Advertising
* Mixed Ruling in Competitive Keyword Advertising Case–Goldline v. Regal
* Another Competitive Keyword Advertising Lawsuit Fails–Infogroup v. DatabaseLLC
* Damages from Competitive Keyword Advertising Are “Vanishingly Small”
* More Defendants Win Keyword Advertising Lawsuits
* Another Keyword Advertising Lawsuit Fails Badly
* Duplicitous Competitive Keyword Advertising Lawsuits–Fareportal v. LBF (& Vice-Versa)
* Trademark Owners Just Can’t Win Keyword Advertising Cases–EarthCam v. OxBlue
* Want To Know Amazon’s Confidential Settlement Terms For A Keyword Advertising Lawsuit? Merry Christmas!
* Florida Allows Competitive Keyword Advertising By Lawyers
* Another Keyword Advertising Lawsuit Unceremoniously Dismissed–Infostream v. Avid
* Another Keyword Advertising Lawsuit Fails–Allied Interstate v. Kimmel & Silverman
* More Evidence That Competitive Keyword Advertising Benefits Trademark Owners
* Suing Over Keyword Advertising Is A Bad Business Decision For Trademark Owners
* Florida Proposes to Ban Competitive Keyword Advertising by Lawyers
* More Confirmation That Google Has Won the AdWords Trademark Battles Worldwide
* Google’s Search Suggestions Don’t Violate Wisconsin Publicity Rights Law
* Amazon’s Merchandising of Its Search Results Doesn’t Violate Trademark Law
* Buying Keyword Ads on People’s Names Doesn’t Violate Their Publicity Rights
* With Its Australian Court Victory, Google Moves Closer to Legitimizing Keyword Advertising Globally
* Yet Another Ruling That Competitive Keyword Ad Lawsuits Are Stupid–Louisiana Pacific v. James Hardie
* Another Google AdWords Advertiser Defeats Trademark Infringement Lawsuit
* With Rosetta Stone Settlement, Google Gets Closer to Legitimizing Billions of AdWords Revenue
* Google Defeats Trademark Challenge to Its AdWords Service
* Newly Released Consumer Survey Indicates that Legal Concerns About Competitive Keyword Advertising Are Overblown

The post 11th Circuit Rejects Keyword Advertising Liability–Deltona v. NOCO appeared first on Technology & Marketing Law Blog.

In short, California enacted the “Yelp Law” to restrict businesses from trying to stop their consumers from posting online reviews. The statute is divided into two main operative parts. (a)(1) targets TOS provisions that restrict consumer reviews. (a)(2) targets businesses’ efforts to enforce those TOS provisions. A small team of plaintiff lawyers have been cruising the Internet, looking for TOS provisions that they claim are consumer review restrictions, and then asserting (a)(1) violations for those TOS provisions hoping for payoffs. In these enforcements, no consumer has actually been stifled in their remarks (that would support an (a)(2) violation). Worse, the plaintiffs’ lawyers often fail to display basic reading comprehension because their claims target generic and standard TOS provisions that have nothing to do with consumer reviews.

[In this case, the offending TOS provisions said that consumers “agree not to submit content to the website “‘intended to cause commercial harm’” to Peet’s or to use Peet’s trademarks “‘in any manner … that would disparage’ Peet[’s] products or brands.” These are ill-advised TOS provisions that should be rewritten, but they are also clearly not meant to restrict consumers’ abilities to post reviews.]

The Moss decision rejected similar claims because the court concluded (a)(1) had no private right of action. However, that decision was non-precedential. Now, a week later, a different California Appeals Court panel reaches the same conclusion in a precedential opinion, Arterberry v. Peet’s. The end of the Yelp Law drive-by enforcements is getting closer.

The Arterberry opinion summarizes its question and answer:

May a consumer seek monetary penalties against a company for including a contractual provision made illegal under section 1670.8 as part of the terms and conditions on its website, even if the company never threatened to enforce that provision or take any action against the consumer? We hold section 1670.8 outlaws non-disparagement clauses in consumer contracts, but it unambiguously allows a consumer to bring a suit for monetary penalties only when a seller attempts to enforce such a provision or otherwise seeks to penalize a consumer.

The Arterberry opinion itself doesn’t mention the Moss opinion (which was non-precedential, and the opinions were likely drafted in parallel with each other), and the Arterberry opinion claims it is addressing a matter of “first impression” (with acknowledgements of the Shofet and Anderson federal district court opinions, neither of which bind the court, but no acknowledgement of Moss). Despite the parallel rulings, Arterberry follows the same basic logic as the Moss opinion.

The Arterberry opinion engages in a little more depth with the legislative history. The court concludes:

Section 1670.8 applies to everyone, be it a Fortune 500 company or a small family business. If, as the plaintiffs allege, the use of a nondisparagement clause created a cause of action with respect to each California resident who visited a website, with a civil penalty of up to $2,500 for each such resident, then a relatively small business with 10,000 online California customers would face up to $25,000,000 in penalties for using insufficiently precise content moderation and trademark enforcement language in the terms and conditions of its website. The same business would face no more than $5,000 in penalties for actually threatening or seeking to penalize a consumer for posting a negative review. In the more than 400 pages of legislative history that the plaintiffs submitted for our review, we see nothing to suggest the Legislature intended the statute to work this way.

(To be fair, a $5k financial deterrent against suppressing consumer reviews may be too light, just as a $25M penalty for poor TOS drafting would be way too heavy. But the Yelp Law doesn’t rely solely on a private right of action; the AG’s office can enforce it too).

As I mentioned in my prior post, the mere presence of anti-consumer review clauses in TOSes could potentially chill consumers from posting reviews, even if the business never affirmatively asserts that clause. Other laws may redress that concern. And either way, the current batch of (a)(1) enforcements are not the right solution.

I wonder if the unsuccessful plaintiffs’ lawyers will ask the legislature to “fix” the statutory drafting, claiming that the courts have left consumers vulnerable to businesses’ anti-review efforts. It’s the kind of story that some legislators would be sympathetic to–if they don’t do their homework about the abuses already taking place. Even without a legitimate private right of action, plaintiffs’ lawyers have used (a)(1) to cause chaos in court and extract undeserved concessions. We need less of that, not more.

Case Citation: Arterberry v. Peet’s Coffee, Inc., 2026 WL 2185136 (Cal. App. Ct. July 29, 2026)

Selected Blog Posts Regarding 1670.8

• Appeals Court Shuts Down Bogus Private Enforcements of the ‘Yelp Law’–Moss v. GoDaddy
• Catching Up on the Bogus “Yelp Law” Litigation Campaign–Tao v. Uniqlo
• Amazon Must Defend “Yelp Law” Claim–Ramos v. Amazon
• Courts Are Rejecting Attempts to Weaponize Laws That Protect Consumer Reviews
• Businesses Cannot Contractually Ban “Abusive” Consumer Reviews
• California Tells Businesses: Stop Trying To Ban Consumer Reviews (Forbes Cross-Post)

The post Another Court Shuts the Door on “Yelp Law” Drive-By Lawsuits–Arterberry v. Peet’s appeared first on Technology & Marketing Law Blog.

The court accepts Harbor Freight’s claim that the “2024 Cookie Banner was displayed on each page on the Website until the user interacted with it, even if the user had previously visited the Website and interacted with the prior cookie banner.”

In 2025, Harbor Freight added an arbitration clause to the TCU. The TCU also contains a class action waiver.

The named plaintiff, Alba, says he visited the website at least once a year since 2020, including after the arbitration clause was added to the TCU. Alba allegedly selected the “Reject All Cookies” button.

What Terms Apply

The court accepts Harbor Freight’s evidence of its user interface:

Harbor Freight has satisfied its burden of proof and demonstrated that Alba was shown the 2024 Cookie Banner. It is undisputed that Alba visited the Website as recently as October 2025. Harbor Freight’s unrebutted evidence that the 2024 Cookie Banner was shown to all users following October 31, 2024, is therefore sufficient to demonstrate that Alba must have been shown the revised banner during his recent visits to the Website….

Alba did not submit a declaration or any other evidence denying that the Website displayed the 2024 Cookie Banner when he visited it in 2025

Alba pointed to an article that says that normally, in the EU, a website doesn’t redisplay the cookie banner to consumers who have already made a selection. The court says this article doesn’t raise any questions about the activities taking place in the US.

Formation

Turning to formation, the court characterizes the cookie banner as a “sign-in-wrap,” which takes us to the now-familiar Chabolla considerations.

Transaction Context. Favors Alba, because “simply browsing a website is insufficient to put the user on heightened notice to anticipate terms of service.”

Visual Design. The court says the offer notice was reasonably conspicuous:

First, the font size used for the advisory paragraph, hyperlinked Terms and Conditions, and buttons was the same. Second, the advisory paragraph displayed in black text against a white background, whereas the Terms and Conditions and Privacy Policy were each bolded, underlined, and in red font. Thus, the Terms and Conditions “stood out from the surrounding text to indicate it was clickable.” Third, the hyperlink to the Terms and Conditions was directly to the left of the three buttons and contained within the pop-up banner, meaning that a Website user could not click on any of the buttons without also seeing the Terms and Conditions displayed on their screen. Finally, there was nothing else cluttering the cookie banner, and the advisory paragraph expressly notified users that “[b]y clicking ‘Accept All Cookies,’ ‘Reject All Cookies,’ ‘Cookie Settings,’ or continuing to browse our website, you acknowledge and agree to our Terms and Conditions of Use.”

A few things:

• The cookie banner excerpt was presented in isolation, not in the context of the entire page. I find these kinds of excerpts unhelpful and maybe misleading. Is the offer conspicuous when looking at the whole page?
• Even in the excerpt, the font is small. It’s blurry in the screenshot I present above (taken from the court opinion).
• Although there isn’t a ton of text, the consumer would have to wade through the cookie discussions to see that the decision to proceed has implications far beyond cookies.

The court distinguishes Chabolla because, in that case, the offer was below the acceptance button such that someone might not look there (here, the text is to the left of the acceptance button). The court says it doesn’t matter that the offer disclosure was at the end of the paragraph block because the TCU links were “bolded, underlined, and in red font, meaning they stood out even without reading the entire paragraph.” Alba also complained that the links to the TCU and privacy policy were “mashed together,” but the court says consumers would recognize the space between them and, either way, still see the TCU reference.

Assent. Alba didn’t challenge assent separately from the disclosure visbility. But I’m stuck on this. Harbor Freight claimed that taking ANY of the following actions was assent: “clicking ‘Accept All Cookies,’ ‘Reject All Cookies,’ ‘Cookie Settings,’ or continuing to browse our website.” This seems extremely expansive. For example, forming the TCUs by continuing to browse is a browsewrap, not a sign-in-wrap. And if someone clicks “cookie settings,” presumably to investigate the website further, it seems unfair to presume they want to form the contract yet.

Also, I’m willing to bet that a majority of consumers presented with this interface would be shocked to learn that “reject all cookies” meant “accept all terms,” including an arbitration clause in the TCU. Yes, that is technically what the disclosures say, but it requires a lot of mental work to put all of this together. It also raises potentially interesting logic puzzles, like what if the cookie policies’ rules about declined cookies and the TCU terms are in conflict with each other? (Nothing in this case suggested that, but I’m raising the possibilities).

Implications

For another case upholding TOS formation via cookie banners, see LB v. LinkedIn.

While I think jamming Alba with the TCU terms when he declined cookies was a raw deal, I’ll note the plus side: Harbor Freight wisely used the engagement with the cookie banner for more than resolving the cookie policy. If you’re going to force users to click, go for the gusto and get them to agree to the TOS at the same time like Harbor Freight did.

The court orders Alba’s case to arbitration. However, another plaintiff in the case took all relevant actions before the arbitration clause was added to the TCU. That plaintiff’s claims are stayed until the arbitration resolves.

For more on cookie banners, you might be interested in Kate Klonick, Ban Cookie Banners: A Case Study in Tech Regulation. I don’t agree with all of her arguments, but I heartily endorse the article’s bottom line that the EU and other countries should reconsider cookie banner mandates (and, in my opinion, all other government-mandated interstitials that break the web’s “click-and-go” paradigm).

Case Citation: Alba v. Harbor Freight Tools USA, Inc., 2026 WL 2161637 (N.D. Cal. Juy 27, 2026)

The post When You Reject Cookies, You Might Be Agreeing to Arbitration–Alba v. Harbor Freight appeared first on Technology & Marketing Law Blog.

(a)(1) A contract or proposed contract for the sale or lease of consumer goods or services may not include a provision waiving the consumer’s right to make any statement regarding the seller or lessor or its employees or agents, or concerning the goods or services.

(a)(2) It shall be unlawful to threaten or to seek to enforce a provision made unlawful under this section, or to otherwise penalize a consumer for making any statement protected under this section.

These laws seek to foster consumer reviews by stopping businesses from contractually restricting such reviews. The same principle animates the Consumer Review Fairness Act.

While pro-consumer review laws are good policy, California dubiously attached a private right of action to 1670.8. In its wake, a small group of lawyers have initiated a spate of bogus lawsuits. The lawyers overread businesses’ TOSes, twisting ordinary TOS provisions into putative restrictions on consumer reviews. Enforcement then becomes basically point-and-click. The lawyers search for the targeted TOS provision and then sue the associated business without showing any harm to any consumer. At that point, it becomes a numbers game: file enough lawsuits to cash in from quick but undeserved settlements.

The California appeals court ruling rejects this litigation scheme. The court says 1670.8’s private right of action only applies to (a)(2), not (a)(1). This distinction requires the lawyers to have actual gagged consumers to proceed. Virtual drive-by litigation based solely on TOS language, without more, won’t cut it.

The panel reaches this conclusion because only (a)(2) contains the “it shall be unlawful” grammar that seemingly triggers penalties:

The differences between the two subdivisions permit a reasonable inference that the Legislature intended for subdivision (a)(1) to operate as a shield and for subdivision (a)(2) to provide the consumer with a sword when a seller threatens or takes action to enforce a waiver to stifle consumer speech.

On this point, the court sides with the Shofet case and ignores the Anderson case that reached the opposite conclusion.

The “shield” reference is confusing. A shield for whom, and against what? Later, the court says that TOS provisions that violate (a)(1) are unenforceable. However, that seems to render (a)(1) superfluous. If the legislature attaches a penalty to enforcing the TOS provision, doesn’t that penalty also simultaneously render the TOS provision unenforceable, at least implicitly?

This opinion isn’t precedential, so it is definitely not the final word on the matter. However, it’s also clear that this litigation genre is doomed, one way or another. The sooner, the better.

Even if (a)(1) doesn’t have a private right of action, businesses should still scrub their TOSes for any provisions that might be construed as restrictions on consumer reviews. Among other problems, enforcing those provisions could still trigger the private right of action.

Case Citation: Moss v. GoDaddy.com, Inc., 2026 WL 2122990 (Cal. App. Ct. July 23, 2026)

Selected Blog Posts Regarding 1670.8

• Catching Up on the Bogus “Yelp Law” Litigation Campaign–Tao v. Uniqlo
• Amazon Must Defend “Yelp Law” Claim–Ramos v. Amazon
• Courts Are Rejecting Attempts to Weaponize Laws That Protect Consumer Reviews
• Businesses Cannot Contractually Ban “Abusive” Consumer Reviews
• California Tells Businesses: Stop Trying To Ban Consumer Reviews (Forbes Cross-Post)

The post Appeals Court Shuts Down Bogus Private Enforcements of the ‘Yelp Law’–Moss v. GoDaddy appeared first on Technology & Marketing Law Blog.

Snarky note about design patents: This is a design patent case. I don’t mean any disrespect towards design patent aficionados, but design patent cases typically feel like Calvinball to me. This one does too.

* * *

Shenzhen Jisu has a design patent (D886,982) for a foldable fan:

Shenzhen Jisu asserted the design patent against many online merchants in a SAD Scheme case. As usual, it got an ex parte TRO and then sought a preliminary injunction. Several defendants appeared to contest the PI, but the court granted the PI anyway.

In the interim, the USPTO issued a new design patent (D1,046,104) to a third party that cites D886,982 as prior art. The ‘104 issuance indicates that the USPTO thought that the designs were sufficiently distinguishable to authorize the patent. I’m no expert on foldable fans, but the major difference appears to be that Shenzhen Jisu’s design rotates the cover vertically and the subsequent patent rotates the cover horizontally. I defer to the design patent experts why either should be protected via design patents at all, especially when every aspect of the design seems pretty functional to me. For now, just go with it.

The defendants sought reconsideration from the district court judge based on the ‘104 patent, arguing (1) the defendants’ designs overlapped with the ‘104 design (essentially admitting infringement of that patent, but it seems like there was a license between the defendants and the ‘104 design patentee?), (2) the USPTO said that the ‘104 design was sufficiently distinguishable from the ‘982 design to permit the new design patent, so (3) based on those USPTO-recognized differences, the judge should conclude that the design differences do not support the PI. Despite that pretty good argument, the district court initially rejected the reconsideration.

Perhaps feeling emboldened, Shenzhen Jisu added more defendants to the case, including the ‘104 patentee. The new defendants’ appearances finally persuaded the district court judge to credit the USPTO’s distinction between the designs. The judge denied a TRO against the new defendants and dissolved the existing PI. Shenzhen Jisu appealed, but the Federal Circuit upheld the PI denial.

The opinion has some inside-baseball discussions about the standards for design patent infringement, especially the doctrine of “anticipation.” T0 summarize: there is a difference between the USPTO’s standards for patentability and the court’s evaluation of infringement. However, the USPTO’s decision to issue the ‘104 patent, knowing about the existing ‘982 patent, makes it practically difficult (impossible?) for the ‘982 patentee to successfully argue that the ‘104 design infringes.

In dissent, Judge Stoll says that design patent infringement cases require the district court judge to do a three-way comparison of the patent, the new product, and the prior art, which the judge didn’t do. Judge Stoll would send it back to the judge to do that comparison. Judge Stoll writes:

Use of the proper legal framework cannot be sacrificed for the purposes of judicial efficiency

Judge Stoll was referring to the district court’s handling of the design patent infringement analysis, but Judge Stoll’s words pretty much encapsulate the SAD Scheme’s problems.

Two aspects of this case worth reinforcing:

1) The district court got the law wrong at the TRO stage. The TRO never should have issued in the first place. Erroneously issued ex parte TROs are not some unexpected whoops. They are inevitable in ex parte proceedings, which makes them a ubiquitous–and pernicious–part of SAD Scheme practice.

2) By combining a design patent with the SAD Scheme, Shenzhen Jisu caused substantial chaos in the marketplace. As I see it, the TRO improperly knocked non-infringing competitors out of the market, depriving consumers of the full range of legitimate choices and almost certainly raising prices to consumers. Those consumers had no voice in the litigation, so they depend entirely on judges to protect their interests, which the district court didn’t adequately do. Worse, there is almost always zero accountability for these inevitable and oh-so-common consumer harms or SAD Scheme plaintiff’s abuses. To me, that is indeed SAD. #StopTheSADScheme.

Case Citation: Shenzhen Jisu Technology Co., Ltd. v. Annex A Defendants, No. 25-1617 (Fed. Cir. July 22, 2026)

The post Federal Circuit Rebuffs SAD Scheme Plaintiff–Shenzhen Jisu v. Annex A Defendants appeared first on Technology & Marketing Law Blog.

Contributory Infringement

Inducement to Infringe. The court says it’s not inducement when “Plaintiff merely alleges that Defendant knowingly allowed listings of infringing TJ Karaoke devices to remain active on its website despite having the ability to remove the listings….Nor has Plaintiff alleged facts giving rise to an inference that the ‘principal object’ of Defendant’s online marketplace is the sale of infringing products. [cite to Grokster]”

Tailored to Infringement. The plaintiff did not allege that “Defendant’s service is incapable of substantial or commercially significant noninfringing uses….allegations that a service provider merely had ‘knowledge that a service will be used to infringe’ or ‘fail[ed] to take affirmative steps to prevent infringement’ are insufficient to state a claim for contributory infringement liability.” Given eBay’s scope, I don’t see how a plaintiff could allege that eBay is “incapable of substantial or commercially significant noninfringing uses.”

Vicarious Infringement

Citing Milo & Gabby, the court says the “mere fact that Defendant had the ability to remove listings of infringing devices is not enough to establish that Defendant had both the legal right and the practical ability to stop the third-party sellers’ infringing conduct.” The court doesn’t discuss the direct financial interest prong, which poses a heightened challenge to eBay due to its commission structure.

Did Cox Make a Difference?

The Supreme Court’s Cox v. Sony decision didn’t address vicarious copyright infringement, so that part of the ruling wasn’t affected by the Cox case.

This court did apply the revised Cox standards for contributory copyright infringement, and the application of those factors makes this an even easier case. Lee made knowledge-based allegations, but–as the Cox court seemingly intended–Lee could not spin those allegations to satisfy an intent-based standard. It makes quick work for a defendant like eBay who has taken many steps to reduce copyright infringement.

(It remains to be seen if courts will (1) bend the standards in Cox to distill evidence of intent from knowledge-based allegations, or (2) bend the standards of direct or vicarious infringement to gapfill the narrowed contributory infringement standard. Fortunately, this court did neither. However, it was also a pro se case, not a full-scale assault to degrade the Cox standards that rightsowners will launch eventually).

However, I don’t think Lee’s claims would have gotten far with the pre-Cox jurisprudence either. Courts have routinely rejected staydown demands from plaintiffs. Also, eBay’s honoring of the NOCIs means that it would have likely qualified for the 512(c) safe harbor too. Still, those defenses might not have worked until summary judgment, at significant defense costs, while the Cox precedent easily and decisively ends this case on a motion to dismiss.

Case Citation: Lee v. SBS Corp., 2:26-cv-03144-MCS-E (C.D. Cal. July 9, 2026)

UPDATE: Lee v. SBS Corp., 2026 WL 2261023 (C.D. Cal. Aug. 5, 2026). The court granted Google/YouTube’s motion to dismiss.

Plaintiff alleges no act of direct infringement attributable to Google aside from that “the YouTube platform [is] operated by” Google and YouTube. Moreover, Plaintiff does not allege that YouTube selected infringing works for upload or download or instigated any copying, storage, or distribution of the works….

Plaintiff does not allege that YouTube induced infringement or that YouTube provided a service tailored to infringement. Rather, Plaintiff merely alleges that Google and YouTube “selective[ly] remov[ed]” infringing video content on its platform. Plaintiff has not alleged that Google and YouTube actively encouraged infringement through specific acts, such as by advertising an infringing use of its services. Nor has Plaintiff alleged facts giving rise to an inference that the principal object of YouTube’s online platform is the distribution of copyrighted videos….

Plaintiff merely alleges that Google and YouTube “had both the ability and the opportunity to remove the infringing content, yet knowingly allowed certain infringing videos to remain on the platform while continuing to derive financial benefit from them,” not that YouTube’s service is incapable of substantial or commercially significant noninfringing uses…

The mere fact that infringing content existed on YouTube is insufficient to allege that YouTube attracted users specifically because of content that infringed Plaintiff’s copyrights.

The post eBay Defeats Contributory Copyright Claim–Lee v. SBS appeared first on Technology & Marketing Law Blog.

Coomer v. Lindell, 2026 WL 817370 (D. Colo. March 25, 2026)

Related post. This is more fallout from the efforts to deny the 2020 presidential election results. MyPillows huckster Lindell publicly trashed Dominion Voting and and its president, Coomer. A jury held Lindell and Frankspeech liable for defamation and more. The defendants unsuccessfully tried to overturn the jury verdict post-trial.

Frankspeech invoked Section 230 for its liability for Lindell’s speech. The court disagrees:

Mr. Lindell founded Frankspeech. He regularly acted as its corporate representative, including at trial. He hosted his own show on Frankspeech, broadcasted it through Frankspeech, and used the Frankspeech platform to make and publish statements about Dr. Coomer. There is no evidence that anyone other than Mr. Lindell exercised any meaningful degree of control over the Frankspeech entity. By all accounts, Frankspeech was Mr. Lindell’s corporate alter ego in this context….for § 230 purposes, Frankspeech’s defamatory statements through its agent would plainly qualify as participation in the development of those statements.

Frankspeech also claimed Section 230 for Clement’s remarks at a conference. The court responds: “Frankspeech—through Mr. Lindell and others—sponsored, promoted, and broadcasted the event….a reasonable jury could conclude that Frankspeech’s conduct (including its conduct through Mr. Lindell) created actual or apparent authority for Mr. Clements and other presenters at the Cyber Symposium to act as agents of Frankspeech.”

Murphy v. LinkedIn Corp., 2026 WL 881710 (N.D. Cal. March 30, 2026)

Fraudsters approached Murphy via LinkedIn direct messages. The conversation switched over to WhatsApp, where the fraudsters effectuated their fraud. Murphy’s lawsuit against LinkedIn fails due to Section 230:

Plaintiffs’ claims for negligence, gross negligence, and product liability are premised on a purported duty to “monitor” users, “restrict the accounts of fraudulent actors,” and to suppress “fraudulent activities” by users of LinkedIn’s platform. These claims “necessarily implicate” LinkedIn’s role as a publisher of third-party content because “discharging the alleged duty would require [LinkedIn] to monitor third-party content and prevent” communications between fraudsters and legitimate LinkedIn users. Nor can Plaintiffs sue LinkedIn for breaching a “duty to warn.” LinkedIn’s “role as a publisher of third-party content does not give it a duty to warn users of ‘a general possibility of harm’ resulting from” using LinkedIn’s services.

The plaintiffs unsuccessfully tried the defective design workaround:

Plaintiffs argue that their claims are not based on LinkedIn’s role as publisher, but rather its role “as a product manufacturer and developer of defective algorithms” that facilitated communications between fraudsters and Plaintiffs. But the Ninth Circuit has repeatedly upheld dismissal of negligence and product liability claims framed in the same way. [cites to Doe v. Grindr and Dyroff]

A Roommates.com workaround didn’t work either:

Plaintiffs’ claims are premised on LinkedIn’s neutral tools for connecting users, not on content that LinkedIn created or required users to provide as a condition of using its services. Indeed, LinkedIn expressly informs users that they “have choices about the information” on their profiles, and that users “don’t have to post or upload personal data” that may make them targets of fraud.

To put a finer point on it, if the plaintiffs are complaining about LinkedIn direct messages, then those messages may be covered by the ECPA just like email, and LinkedIn may have had limited legal rights to monitor the conversations at all.

Finally, the plaintiffs tried a TOS-based workaround, poured into consumer protection laws. The court acknowledges that some breach of contract claims may not be preempted by Section 230, but

These claims are premised on the same duties discussed above – duties to monitor, to design products in a different manner, and to warn – that fundamentally seek to hold LinkedIn liable for content created by the fraudsters. Styling these claims as different legal theories does not remove them from Section 230’s scope….

Plaintiffs seek to hold LinkedIn liable solely based on its general monitoring policy and aspirations to remove fraudulent users from its platform. Moreover, LinkedIn expressly disclaims liability by notifying users that they “may encounter content or information that might be inaccurate, incomplete, delayed, misleading, illegal, offensive, or otherwise harmful,” and that LinkedIn “generally does not review content provided by [its] Members or others.”

McNeal v. Calvin, 2026 WL 879228 (E.D. Mo. March 31, 2026)

This case relates to the TV show Love & Marriage: Huntsville, shown on OWN (Oprah’s channel). The plaintiff, a lawyer (naturally), is one of the women featured in the show. She is upset about online comments about the show and sued many defendants pro se. The court says “Section 230 of the Communication Decency Act bars Plaintiff’s claims against YouTube, Google, and Tik Tok.” In particular, “The content uploaded by users cannot be attributed to internet service providers based on the theory that users are “agents” of the websites they use.”

Shiva Ayyadurai v. U.S., 2026 WL 879409 (D.C.D.C. March 31, 2026). My prior blog post about a different litigation of his.

This is a jawboning case:

Ayyadurai’s 75-page Complaint alleges that various Massachusetts state officials—none of whom are named as Defendants in this case—federal officials at the Cybersecurity Infrastructure Security Agency (“CISA”), and other government officials unknown to him have coordinated with private companies to regulate and censor his speech by “deplatforming” or “shadowbanning” him—that is, suspending his social media accounts or limiting the reach of his posts. Ayyadurai alleges that the Defendants took these actions in retaliation for posts in which he “articulat[ed] a government employee’s role in destroying the digital ballot images used to tabulate votes” in a prior election.

With respect to the liability of the social media defendants who allegedly got jawboned, the court accepts the 230(c)(2)(A) defense:

Ayyadurai’s Complaint fails to state a claim against the Social Media Defendants based on their content-moderation decisions because he does not plausibly allege that any of those decisions were made in the absence of “good faith” or that they were made for a purpose other than removing content that they “consider[ ] to be … objectionable.”…

conclusory allegations of bad faith are insufficient to state a claim against a platform based on activity within the reach of Section 230(c)(2).

At the same time, the court struggled with applying to Section 230(c)(1) to the removal decisions. Incredibly, it says:

only a few of the decisions restating this broad dictum [from Zeran] have grappled with its implications when the challenged conduct is a platform’s decision to remove objectionable content—such as a plaintiff’s own posts—rather than a decision to leave other objectionable content in place. Extending immunity under Section 230(c)(1) to cover direct challenges to the removal of user content is an uneasy fit with the language of the provision, which says only that “[n]o provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.” A broad reading of Section 230(c)(1) that immunizes all content-removal decisions also risks “swallo[wing] the more specific immunity in (c)(2),” which applies only to content-moderation decisions that are made in “good faith.”

Not this shit again. I have repeatedly explained how Section 230(c)(2) can apply to first-party filtering decisions, which leaves room for Section 230(c)(1) to protect against liability for third-party content. There are DOZENS of cases applying Section 230(c)(1) to removal decisions, so for the court to think that it’s spotted something that all of those other courts have missed is laughable…and completely gratuitous…and ultimately inconsequential given that the court still tosses the case.

The court tries to justify its reluctance on Section 230(c)(1):

There is little reason to strain the reach of the immunity in Section 230(c)(1) when, as in this case, the immunity in Section 230(c)(2) leads to the same result.

NOOOO. There are several excellent reasons to apply both 230(c)(1) and 230(c)(2):

(1) 230(c)(1) doesn’t have a good faith prerequisite, which has mucked up 230(c)(2) jurisprudence and made 12(b)(6) dismissals much more difficult to obtain, jacking up the litigation costs for both sides and giving false hope to bogus claims. Indeed, because the court dismissed this case without prejudice, I’m sure an amended complaint will try again to manufacture bad faith sufficient to kick the case into very expensive discovery;

(2) removal and leave-up decisions are two sides of the same decision, i.e., every editorial decision about an item of third-party content is either a leave-up or removal decision, so they cannot be separated; and

(3) the statute and 25+ years of caselaw have established the principle that 230(c)(1) applies to removal decisions.

Sigh. In the end, this case ends up the same as all of the other content removal and account termination cases–dismissed.

Gaughan v. Barounis, 2025 N.Y. Misc. LEXIS 17243 (N.Y. Supreme Ct. December 18, 2025) 

The Complaint alleges that the impersonating profile and pictures of plaintiff were posted by defendants Barounis and Viera. Plaintiff’s contention that the XVideo defendants are liable for refusing or failing to remove offending material prepared by a third party, or that they may be held responsible for allegedly defamatory postings made by third parties does not state a viable basis for liability. Nowhere in the Complaint does plaintiff allege that the XVideo defendants posted or created the impersonating profile themselves, altered or edited its contents, or encouraged, required, or otherwise induced defendants Barounis and/or Viera, or any other user, to create the profile or upload unlawful content. To the contrary, plaintiff even alleges in her Complaint that Barounis and Viera allegedly making this impersonating profile goes against XVideo.com’s Terms and Agreements.

The Court also finds plaintiff’s argument that the XVideo defendants should be responsible for her alleged stolen identity, and that Section 230 does not apply in cases, unavailing.

It has also been held that “Sections 50 and 51 of the New York Civil Right Law sounds in privacy, not intellectual property, and thus does not fall within the intellectual property exceptions in Section 230.”

Equally, plaintiff’s contention that this immunity is lost because the XVideo defendants allowed the dissemination of plaintiff’s personal information and allowed discriminatory content (age, sex, sexual orientation, ethnicity, etc.) is unsuccessful.

Arana v. Molta, 2026 WL 1166348 (D. Mass. March 24, 2026)

Mr. Molta drafted the description of, and provided the photos for, the Dennis Property posted to WNAV’s website. WNAV did not review, revise, edit, or provide feedback on the Dennis Property listing that the Moltas posted to the WNAV website. WNAV is thus immune from liability for any of the statements or representations made by the Moltas in the Dennis Property listing.

Greer v. Moon, 2026 WL 1170015 (D. Utah. Feb. 11, 2026)

Mr. Greer’s only claims against Defendants are for contributory copyright infringement under federal law. Because those claims clearly “pertain[ ] to intellectual property,” they cannot be barred by section 230. Defendants’ argument concerning section 230 immunity fails.

Tufano v. Google LLC, 2026 U.S. Dist. LEXIS 100789 (N.D. Cal. May 6, 2026)

“Plaintiff premises his claims on Google allegedly “filter[ing] out all negative reviews” of Dr. Taban, including Plaintiff’s negative review, which Google allegedly removed.” The court dismisses per Section 230: “First, Google’s review service is an interactive computer service. Second, Google publishes the reviews on which Plaintiff bases his claims. Third, third parties, and not Google itself, provide the reviews published by Google.” The plaintiff said Google didn’t act in good faith, but Google relied on 230(c)(1) where good faith is irrelevant, and the plaintiff didn’t provide any evidence of bad faith.

Starship LLC v. Shein Distribution Co., 2026 WL 1455009 (C.D. Cal. March 20, 2026)

This is a fast fashion enforcement lawsuit that includes both copyright and trademark claims. The direct infringement claims largely fail because Shein operates as a marketplace for online vendors. The contributory infringement claims failed because the plaintiff wanted a staydown in response to takedown notices. The vicarious infringement claims also fail.

Shein defended against the unfair competition claim based on Section 230. The court says:

Plaintiff characterizes Shein as an information content provider because it “regularly markets and sells goods” and “is involved in almost all aspects of the marketplace’s distribution chain.” These conclusory assertions do not plausibly allege that Defendants are content providers. Plaintiff provides no factual basis to infer that Defendants materially contributed to the alleged infringement.

King v. Jilin Province Detiannuo Safety Tech. Co. Ltd., 2026 Fla. Cir. LEXIS 295 (Fla. Cir. Ct. Feb. 17, 2026)

Plaintiff does not allege that eBay participated in the creation or development of Seller’s listing or allege that eBay played some role in handling or transmitting the airbag components. Plaintiff only alleges that eBay should have removed Seller’s listing and/or issued some censure to Seller for its alleged noncompliant listing….

The only way eBay allegedly could have prevented the harm was by reviewing the third-party listing, determining whether it complied with internal policies, and removing it. That conduct, i.e., deciding whether to publish or remove third-party content, is a paradigmatic editorial function protected by the CDA.

In re Apple Inc. App Store Simulated Casino-Style Games Litigation, 2026 WL 1552391 (N.D. Cal. June 1, 2026)

The Court finds Defendants’ argument that Section 230 provides immunity from suit unavailing. Defendants point to the clause in Section 230 that states that “no cause of action may be brought” that is contrary to the statute. 47 U.S.C. § 230(e)(3). But the Tenth Circuit has held that Section 230 “provides immunity only from liability, not suit.” And the Ninth Circuit case Defendants themselves cite clearly states that Section 230 is designed “to protect websites against the evil of liability for failure to remove offensive content”; that case does not mention protection from suit. Thus, the Court concludes that Section 230 does not protect Defendants from suit.

Accardi v. CSC Holdings, LLC, 2024 N.Y. Misc. LEXIS 83186 (N.Y. Supreme Ct. November 26, 2024)

The plaintiffs claim that defendants failing to follow their terms of service makes them liable to the plaintiffs, effectively negating the immunity provided by the Communications Decency Act. After a review of the papers submitted by the defendants and the plaintiffs, the Court finds that the immunity provided by Section 230 does apply to the defendants in this action and the plaintiffs have not proffered any compelling argument or evidence to negate this immunity. As such, the defendants motion to dismiss the third cause of action pertaining to the failure to remove posts on social media is granted.

Life Mastery Network LLC v. Haygarth, 2026 WL 1622887 (D. Haw. May 22, 2026)

Paula indisputably enjoys immunity under the CDA for reposting content. Many courts have included private individuals within the scope of a “user.” Thus, (1) Paula is a “user of an interactive computer service”; (2) the subreddit link is “based on information provided by another information content provider”; and (3) Plaintiffs’ claim would treat Paula “as the publisher or speaker of that information.” As such, and as Plaintiffs have conceded at the Hearing, Paula is immune from lawsuit for what she reposted from Reddit.

But because the CDA does not immunize someone who posts original content, it makes sense that adding comments to something that is re-posted would not trigger CDA immunity. While these cited cases are not directly on point, the Court concludes that Paula’s comments regarding what she reposted are not subject to CDA immunity.

Glazer v. Meta Platforms, Inc., 1:25-cv-01849-GLR (D. Md. June 12, 2026)

The Court agrees with Meta that Section 230 bars Plaintiffs’ claims….All three elements are satisfied here: Meta is an interactive services provider; Plaintiffs’ claims treat Meta as the publisher or speaker of information under Section 230 because they “seek ‘to hold [Meta] liable for . . . deciding whether to publish, withdraw, postpone or alter content’ provided by third parties”; and the content at issue here is that of third parties, and Plaintiffs “seek[] to hold Meta liable, not for providing that content, but for allowing third parties to do so.”

Related ruling.

Sidoli v. YouTube LLC. 2025 U.S. Dist. LEXIS 210953 (N.D. Cal. Sept. 2, 2025)

Plaintiff also seeks to treat YouTube as a publisher because she alleges that YouTube wrongfully demonetized, restricted, and removed her videos. Such conduct falls within a publisher’s traditional functions….

YouTube cited authority that which stand for the proposition that Section 230 immunizes internet service providers from suit for termination of a plaintiff’s entire channel as well as the content that the plaintiff posts on that channel. Such authority is persuasive. Thus, any claim Plaintiff brings which seeks to challenge YouTube’s decision to remove Plaintiff’s YouTube channel is also barred by Section 230.

Also, “Plaintiff’s constitutional claims cannot proceed as YouTube is a private forum, not a state actor.”

See also Sidoli v. YouTube LLC, 2026 WL 1480407 (S.D.N.Y. May 27, 2026), upholding YouTube’s TOS and forum selection clause: “Defendants provide evidence, which Plaintiff does not dispute, showing that she agreed to abide by the terms of service by clicking the “Create Channel” button when she started her YouTube page on June 21, 2021.”

Kennedy v. Vickery, 2025 Me. Super. LEXIS 108 (Me. Superior Ct. Sept. 10, 2025)

RFK Jr. lost a defamation lawsuit. As for Section 230:

Defendant posted on X, without comment, a link to an article, authored by thegrio.com, titled “Anti-vaxxer Robert F. Kennedy Jr. is harming black people—and his family legacy—with his vaccine misinformation campaign.”…

Under the Communications Decency Act, internet service users are not liable for repeating, without embellishment, third party content….

Exhibit A to the Amended Complaint supports Defendant’s assertion that he posted the third-party content without embellishment. Plaintiff denies Defendant posted the link without embellishment, but cites no admissible record evidence to support the denial. Thus, under the Communications Decency Act, Defendant is not liable to Plaintiff for this post.

Awoye v. Jones, 2026 WL 1847088 (D.N.J. June 26, 2026)

In Instagram posts, Jones claims that Awoye scammed her. Awoye sued her and brought Meta along for the ride, claiming it had violated his publicity rights. There isn’t any publicity rights violation here:

The core of Plaintiff’s allegations is that Jones spread allegedly false information about Plaintiff on Instagram. Jones was not selling a product or otherwise soliciting money from her followers. As such, neither was Instagram. Jones’ posts were the “dissemination of news or information” and not made for a commercial purpose.”

Norton v. Meta Platform, Inc., 2026 WL 1963120 (N.D. Cal. July 7, 2026)

In posts on Facebook, several third parties accused Norton of criminal activity and shared intimate images of him….

“Meta is an interactive computer service provider.” Second, Norton alleges that third parties, not Meta, created the Facebook posts at issue; the third parties, not Meta, are the “information content provider[s].” Third, each of Norton’s claims seek to treat Meta as a “publisher” of third-party content. “A claim that obliges the defendant to monitor thirdparty content to avoid liability … treats the defendant as a publisher.”

Norton argued “but the algorithms.” Citing Ligon, the court says the algorithms matter only if the algorithm creates content. Citing Roommates.com, the court adds: “Norton doesn’t allege that Meta required its third-party users to create or post any of the content at issue.”

Moore v. LogSat Software LLC, 2022 WL 23074273 (S.D. Ind. Sept. 29, 2022)

John Moore has never been accused of, arrested for, or convicted of any sex-related offense; yet, his name, picture, address, and other identifying information appear on LogSat Software LLC’s app, called “Sex Offenders Search”….

Mr. Moore was convicted in Indiana of voluntary manslaughter. Thus, he was required to register on a violent crime registry in Indiana. The violent offender and sex offender registries are the same in Indiana—in other words there are not two separate lists. Mr. Moore testified that he believed that there was no national violent offender registry, just a national sex offender registry and that he is on that because the Indiana Registry is reported to the National registry….

the alleged defamatory statement at issue is that Mr. Moore’s name, picture, address, and other identifying information appear on app called “Sex Offenders Search,” because he is not a sex offender and has never been accused of, arrested for, or convicted of any sex-related crimes. Mr. Moore does not allege that he was wrongfully included in the data set that LogSat purchased from FWD, or, for that matter, that he was wrongfully included on Indiana or the National registries.

The post Large Roundup of Section 230 Rulings appeared first on Technology & Marketing Law Blog.

Emojico started with the standard SAD Scheme argument that all of the defendants are counterfeiters, which necessarily proves they are infringers, res ipsa loquitor. The court doesn’t accept this simplistic syllogism:

Plaintiff has failed to show that the marks used by Defendants are similar; indeed, many of the marks are so dissimilar that the Court lacks the confidence required for the extraordinary remedy of a temporary restraining order that a factfinder would find in Plaintiff’s favor…

the goods appear to be far from identical. For example, Defendant 2 sells a shower curtain with a lifelike image of man screaming. It is difficult to imagine how any consumer would be confused that the source of this product is Plaintiff, whose products use highly stylized, cartoon-like images of disembodied smiley faces.

I would show you the shower curtain image that unimpressed the court, but it remains sealed. Not only that, but the court grants Emojico’s sealing request: “While the Court denies the motion for a temporary restraining order, the Court understands that public disclosure of the information filed under seal would, at this time, ’cause significant competitive harm’ to Plaintiff.” Ahem…more clarity please. Who are Emojico’s competitors, and how would they be helped by unsealing? In the interim, the rest of us can’t see or evaluate the basis of the court’s determination about mark dissimilarity.

In addition to the shower curtain example, the court enumerates other examples of defendants who probably aren’t infringing either (all from the still-sealed exhibit):

Defendant 4, selling a bathmat featuring illustrated jack-o-lanterns and smiling ghosts; Defendant 7, selling an abstract “glitch art poster” with no discernable faces whatsoever; Defendant 10, selling a pair of purple earbuds; Defendant 11, selling a digital alarm clock and nightlight roughly resembling a robot; Defendant 14, selling an alarm clock stylized as a television with antenna; Defendant 15, selling a shower curtain featuring an lifelike illustrated wolf; Defendant 17, selling a karaoke machine with cat ears; Defendant 18, selling a cinema light box with removable letters and symbols; and Defendant 19, selling an LED pixelated table lamp

Emojico’s trademark registrations cover a mind-boggling range of product classes, from ship hulls to penis enlargers, so it tracks that they think they could simultaneously be the source of shower curtains, earbuds, and karaoke machines with cat ears.

Emojico tried to salvage its case by invoking state trademark law, but it didn’t actually provide any independent support for the state law claim. I am not aware of a SAD Scheme case where state IP rights have been the only basis of a successful enforcement. If you’ve seen one of those, let me know.

The court notes that maybe some defendants are actually infringers, but it questions joinder: “Plaintiff has not convinced the Court that there are common issues of fact among all Defendants.” The court isn’t willing to sever those defendants either.

The court also chastizes Emojico’s prolixity: “Plaintiff’s memorandum of law in support of its motion for temporary restraining order exceed the Court’s page limits by 33 pages, and the Court is unlikely to grant such a motion in the future if requests are similarly unreasonable.”

As usual, GIFs like this come to mind when a plaintiff loses an unopposed motion this badly:

Then again, I hope the TRO denial is only the first of many adverse consequences that Emojico suffers for bringing this lawsuit.

Case Citation: emoji company GmbH v. The Individuals, Corporations, Limited Liability Companies, Partnerships, and Unincorporated Associations Identified on Schedule A, 2026 WL 1865118 (S.D.N.Y. June 29, 2026)

BONUS: Souper Products LLC v. Schedule A Defendants, 2026 WL 1910449 (S.D.N.Y. July 2, 2026). Same judge, same (sad) litigation scheme, different plaintiff lawyers (Boies Schiller, a purportedly elite firm), same TRO denial using a lot of identical language as the Emojico opinion. Looks like the judge can copy opinion language just like SAD Scheme plaintiffs can robo-copy their filings LOL.

With respect to the design patent claims, “Plaintiff’s design patent claims fail to identify with any specificity which products from which defendants infringe on which design patent. There is no side-by-side analysis that would allow the Court to determine infringement on a product-by-product basis.”

The judge still has concerns about joinder: “Plaintiff has not convinced the Court that there are common issues of fact among all Defendants given the vast differences in the shapes, sizes, and styles of ice trays at issue.”

The judge also objected to the filing length, which was 17 pages over-limit (compared to Emojico’s 33 pages).

The post Court Rebuffs Emojico’s SAD Scheme TRO Request appeared first on Technology & Marketing Law Blog.