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.

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.

This essay discusses judicial standing orders regarding the SAD Scheme, which only started emerging about a year ago. Like all other aspects of the SAD Scheme, the proliferation of these standing orders flies under the radar because they are difficult to track. (I know it sounds weird that judges’ orders are not readily trackable; the essay discusses this). Even if you have been paying close attention to the SAD Scheme, you probably will be surprised by what I found.

Also, when I started the project, I expected to find an extensive civil procedure academic discussion about judicial standing orders. I didn’t. As a result, I think this essay adds to the academic discourse about the proper scope and limits of judicial standing orders.

The essay abstract:

The post New Article Alert: “SAD Scheme Standing Orders” appeared first on Technology & Marketing Law Blog.

The defendant in this case is Internet Brands, which operates a portfolio of websites, including the website lawfirms.com, an online lawyer referral service.

LegalForce objected to LawFirms’ logo. The following image shows LegalForce’s logo (top), LawFirms’ initial logo (middle), and LawFirms’ revised logo (bottom) after some counseling by the judge.

I see some font and color similarities between the LegalForce and first LawFirms logo, but probably not enough to warrant a multi-year lawsuit. Certainly the case should have ended when LawFirms adopted the revised logo.

It did not. Instead, it went to a 4-day trial before Judge Alsup, who is on the cusp of retirement. In several Judge Alsup cases I’ve blogged, plaintiffs survived a motion to dismiss based on their initial story, only to get hammered when their stories don’t hold up in later proceedings. That’s exactly what happens here, producing a characteristically stinging opinion.

[I’m blogging this messy case primarily because of the discussion about search engines as a marketing channel, as well as the community’s interest in Raj’s endeavors. Some of his other appearances on the blog.]

* * *

The court runs through the standard Sleekcraft factors, comparing the LegalForce logo to the initial LawFirms logo.

Actual Confusion. “plaintiff produced zero evidence of actual confusion”:

There is zero evidence that anyone who saw an ad for defendant’s referrals service to law firms believed he was seeing an ad for plaintiff’s law firm. There is zero evidence that anyone who visited defendant’s www.lawfirms.com website, which displayed defendant’s marks, believed he was visiting plaintiff’s www.legalforce.com website. There is zero evidence that anyone who was referred to a law firm by defendant believed he was being referred to a law firm by plaintiff, or believed he was being referred to plaintiff

Marketing Channels–Web Searches.

Both plaintiff and defendant have used keyword marketing but this order finds that no single web search has returned or will ever likely return both plaintiff’s and defendant’s websites showing their marks….Plaintiff produced no credible evidence that plaintiff and defendant — specifically for the websites bearing or likely to bear the marks at issue — have bid on the same keywords or would. Defendant did not engage in “keyword squatting,” whereby a defendant’s keyword bidding makes searches for a plaintiff return results also or instead for a defendant….

Plaintiff produced no credible evidence that defendant has undertaken any effort to appear in search results for the same searches as plaintiff, or ever would…

there is no credible evidence that the service marks at issue ever have appeared side by side on the same online “shelf,” nor any credible evidence that one service mark has appeared where the other would have been expected

[For a discussion about keyword advertising and shelf space analogies, see my Brand Spillovers paper.]

To be clear, the judge enumerates many deficiencies with LegalForce’s facts, but this does not imply that changing any one of these facts would have flipped the outcome. For example, what the judge calls “keyword squatting” (a better phrase than “keyword conquesting,” but only barely) categorically isn’t trademark infringement if the plaintiff’s trademarks aren’t referenced in the ad copy (and usually isn’t infringement even if they are). See the Lerner & Rowe and Warby Parker cases. Thus, LawFirms would still have won even if it had “keyword squat” on the LegalForce trademark. (Also, this case involves logos, not word marks).

Marketing Channels–AI. At trial, Raj said that focusing on consumers’ experiences at Google search is old-school because “Your honor, Google is dead.” The “Google is Dead” meme appears to be quite popular online, but also, Google search revenue in 2024 was nearly $200B.

To shift the attention away from Google search, LegalForce argued that consumers would receive confusing AI outputs. The court responds tartly: “Mr. Abhyanker’s own thoughts on these topics shared from the witness stand were not cogent or credible.”

There’s more discussion about other marketing channels, but here’s the court’s bottom-line assessment:

there is no proof that consumers have ever seen or will ever see the service marks at issue in the same marketing channel — not side-by-side, not serially (such as after a Google search for one instead returns the other), not in any way. LegalForce and LawFirms.com are not marketed in the same places in part because they do not offer the same services.

Similarity of Services/Product Line Expansion. “For all periods placed at issue by plaintiff, www.lawfirms.com in total collected and distributed fewer than 25 trademark leads to trademark lawyers, representing less than $1,000 in revenues….For the specific November 2023 to July 2024 period when www.lawfirms.com used the accused mark, zero trademark leads and indeed zero intellectual property leads of any kind were even collected.” With less than $1k of possibly “diverted” revenues at issue in this case, what are we doing here?

LegalForce said it intended to expand into LawFirms’ lawyer referral space. The judge did not see that as credible: “Such supposed intent is rejected as false…The supposed new plans are a fanciful gimmick invented solely for trial purposes.”

Consumer Care. “People seeking referral to a trademark or intellectual property lawyer exercise moderate care. They are more mentally alert than someone grabbing a lemon-lime soda.” (I guess the judge doesn’t think Sprite consumers are very discerning?)

Mark Strength. The court says the plaintiff is better known for its notorious Trademarkia brand than the LegalForce logo, which appears only in obscure places on the website.

Defendant Intent. “The worst that could be said was that defendant neglected to do a trademark search before settling on a mark that assembled common elements in a common way.”

Mark Similarity. Plaintiff did a consumer survey showing the two logos head-to-head. The survey asked: ““If you saw the logos [below] on two different websites [whe]n searching for law firms, would you think they are connected, affiliated, or associated in any way?” The percentage answering “Yes,” we eventually learned, was 13 percent.”

At trial, plaintiff’s expert Michael Rodenbaugh suggested the confusion rate was 32%, which combined the “yes” and “maybe” answers. He then defended the conflation by retconning what the 32% number meant. The judge didn’t appreciate this, saying it “is emblematic of the lack of credibility of plaintiff’s case.”

The judge gave more credit to the defendant’s survey: “Defendant’s more methodologically robust survey showed that the bottom-line number for those likely to be confused was zero percent.” With a zero percent consumer confusion rate, what are we doing here?

The judge then excoriated Raj over the evidence about consumer confusion:

At first, he disclaimed expertise in confusion surveys, after directing the creation of one; later, he claimed the entire discipline of confusion surveys was methodologically broken, after his own creation was taken apart. What he consistently lacked was credibility. He personally sought to manipulate the survey design and then to lead his experts down a primrose path towards opining on more than what the survey could support. To the extent either expert communicated with plaintiff about the survey as plaintiff designed and undertook it, those communications were made while ignorant of relevant, material information that plaintiff withheld….

The expert witness also gets Alsupped:

Expert Rodenbaugh also destroyed his own credibility more broadly. For instance, he testified that there remained a chance that a person having seen the senior mark at a retail location more than a decade ago might still recall the mark well enough to be confused by seeing the junior mark online today. Expert Rodenbaugh had no specific foundation nor even specialized experience leading him to believe this could be true. Instead, he simply testified to the answer plaintiff wanted rather than to the truth.

I can vouch from first-hand experience that being an expert is a tough gig. However, every expert needs to do upfront diligence about their prospective client’s position and integrity, and then pay close attention to any bright flashing red warnings identified during that diligence.

Judge Alsup excoriates Raj some more:

Mr. Abhyanker then testified misleadingly under oath to having spent $10 million advertising the mark. On cross-examination it was revealed that zero of that $10 million had been spent buying ads showing the actual marks at issue. Money was spent buying ads for “Trademarkia.” This was not a half truth; this was a no truth.

There’s even more stinging criticism directed at both sides about their conduct during discovery.

The judge summarizes the evidence to show why plaintiff loses:

the factual underpinnings of every Sleekcraft factor point against plaintiff, as above. There was no confusion. Plaintiff conceded as much. Nor was confusion likely: The senior mark was weak. Plaintiff’s Composite was on the “conceptually weaker end” and a commercial waif: Plaintiff purchased no advertisements displaying it. Plaintiff promoted “Trademarkia” instead, while recognition of “Trademarkia” did not translate into recognition of “LegalForce.” There was no credible evidence that anyone not involved in this litigation could even recall Plaintiff’s Composite. The marks were not similar. Yes, Plaintiff’s Composite and Defendant’s Composite each arranged a squat parallelogram alongside a two-worded description related to law. But the arrangement was itself a functional commonplace, there were differences in the symbols (“LF” versus column, with a gradient of color versus one flat shade), there were differences in the words (bolding one versus two words, while describing one legal team versus a service reaching all law firms) — and the differences stood out. The marks have not appeared in the same specific marketing channels. No web search retrieved both. And, while plaintiff’s mark was on LinkedIn but not Instagram, defendant’s mark was on Instagram but not LinkedIn. There was no credible evidence that the senior and junior mark ever appeared head-to-head or serially in the same channel or likely would. The services were not related. Yes, both parties’ services relate to law, at the highest level of generality. But providing legal services as a law firm is not the same as selling leads to many law firms as a referral service — not in fact, nor as it appears to those using each. Plaintiff’s www.legalforce.com law firm mainly served individual businesspeople with trademark issues. Defendant’s www.lawfirms.com referral service mainly served individual people looking to find and compare lawyers to help with a personal need such as after an accident. Yes, there was some overlap. It was incidental, not targeted: Defendant collected a small number of leads for trademark lawyers during all periods plaintiff put at issue, and zero during the period using the accused mark. Nor will there be any expansion. Plaintiff has had years to expand. Its newfound plan to do so is a litigation gimmick. People seeking lawyers are not careless. Moreover, there was no intent to confuse. Defendant had no reason to do so. Plaintiff was not well known, the two did not overlap much in what they offered, and neither was likely to change much.

No matter how these factors are combined or weighed, they come out against plaintiff.

* * *

This case cries out for a trademark fee shift to the defense. That would be the appropriate consequence for forcing a 4-day trial and a 31 page opinion that repeatedly triggered the “what are we doing here?” meme. However, because the judge wasn’t pleased with the defense’s conduct either, the judge might decide to let each party marinate in the litigation choices they made.

UPDATE: LegalForce has filed a motion to “amend or make additional filings” contesting several of Judge Alsup’s statements discussed above. This is a time-sensitive filing given that Judge Alsup is scheduled to retire just days from now.

Case Citation: LegalForce RAPC Worldwide P.C. v. MH Sub I, LLC, 2025 WL 3675365 (N.D. Cal. Dec. 18, 2025)

The post Post-Mortem of a Misguided Logo Trademark Lawsuit–LegalForce v. Internet Brands appeared first on Technology & Marketing Law Blog.

The law enforcement investigator who testified described the emojis as “a smiley face emoji and a devil horn emoji.” More specifically, the printed Facebook message that was admitted into evidence shows a face-with-tears-of-joy emoji and a smiling-face-with-horns emoji at the end of the message.

Note that face with tears of joy [] has different meanings than a regular smiley [there are many variations; this is the grinning face: ]. Thus, the investigator’s testimony introduced avoidable ambiguity about the emojis that was potentially misleading to the jury. I believe the “devil horn” and “smiling face with horns” emojis are synonyms, but visually depicting the emojis would have been a better way to explain them. For example, my software renders the smiling face with horns as red [], but often the depiction is purple. The appeals court doesn’t address any possible problems with the investigator’s emoji testimony.

Delarosa’s motion in limine to exclude the Facebook message included a printout of that message as an exhibit. However, in that printout,

instead of being followed by two emojis, the message is followed by four closely-spaced rectangles. Neither the text of Delarosa’s in limine motion, nor anything said during the in limine hearing would have informed the trial court that the four rectangles represented two emojis.

Delarosa argued that the emojis shown at trial could have prompted the jury to infer that he had a “glib attitude towards gun violence.” However, the appeals court says that at the time of the motion in limine, the judge didn’t know about the emojis (they were just the unexplained rectangle symbols in the evidence presented to the judge), so the judge couldn’t have evaluated the inference that Delarosa now objects to. Thus, the appeals court resolves this issue on technical grounds, saying the trial court didn’t abuse its discretion in denying the motion in limine due to the garbled evidence Delarosa presented in the motion.

I understand why criminal defendants shouldn’t get a trial do-over if they make mistakes in earlier rounds, but I didn’t love that outcome here. Effectively, Delarosa was exposed to evidence at trial (the message with the emojis) that hadn’t been subject to a motion in limine. In this case, the rectangles should have been a red flag that the printouts weren’t right. One troubling possibility is that Delarosa’s lawyers should have spotted that the exhibit didn’t accurately reflect the evidence, but didn’t.

[Note 1: it’s possibly unfair for an outsider ex post to critique how the litigation team handled a specific item of evidence. I imagine Delarosa’s defense team was dealing with a huge volume of evidence, possibly on short turnarounds, and litigation teams make many reasoned choices that are opaque to outsiders.

Note 2: it’s possible/probable that the trial outcomes would have been the same with or without the Facebook message evidence.]

The broader practice point is clear: lawyers must undertake proper efforts to ensure that the emojis introduced as evidence in court display the correct versions of the emojis. That may be easier said than done, because accurate depictions may require seeing the emojis in both the sender’s and recipient’s contexts and recreating the historical technical environments to depict how the evidence looked at the relevant historical time.

This opinion turns on how the emojis appeared in evidence, but frustratingly the opinion didn’t display any of the evidence showing either the emojis or the rectangle replacements.

Case Citation: People v. Harmon, 2025 Cal. App. Unpub. LEXIS 7318 (Cal. App. Ct. Nov. 18, 2025)

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At issue is Google’s September 2017 amendment of its Advertising TOS to add an arbitration clause. The court describes the steps Google took to effectuate the amendment:

Google launched a notice campaign that included a direct email to advertisers, a public blog post, and an alert presented to advertisers when they logged into their accounts. These notices included a link that, when clicked, took advertisers to a webpage containing the September 2017 Terms

The court doesn’t distinguish between these various notification modalities, but the one that stands out is the interstitial alert. The court doesn’t provide a screenshot of that display, but it suggests that the advertisers actually saw the notice. As we’ve seen in other cases, email notification alone may not be airtight. The public blog post is likely irrelevant to the amendment process.

The court also doesn’t provide the text of the notice campaign (I can’t tell if Google produced it?). It’s a weird omission because the text has significant bearing on whether advertisers were likely to click on the link to the new terms.

If advertisers did click to see the new terms page, Google prominently announced the addition of the arbitration clause and the opportunity to opt-out. Here’s a screenshot of this screen:

The TOS text included a provision allowing advertisers to opt-out of arbitration within 30 days. Unlike some opt-out options that require onerous efforts, Google provided a link to a web form where advertisers could click to say no. But because this opt-out and URL were buried in the TOS, this option was not exactly prominent beyond the earlier shoutout. Here’s the web form:

With respect to the advertisers in question:

Google’s records reflect that plaintiff Stellman accepted the Terms on September 14, 2017, and that Cliffy Care later accepted the Terms on November 20, 2019, when it first signed up for an advertising account with Google. Google records identify whether an advertiser has opted out of arbitration, and records for Cliffy Care and Stellman reflect that they did not.

Based on these facts, the court treats the amendment as presumptively enforceable.

Stellman argued that the court needed to see the text of the notice campaign to confirm that it actually displayed a link to the terms. The court responds: “Given that Stellman accepted the Terms, the contents the alerts [sic] in Google’s notice campaign are of little moment to the existence of the agreement.”

Cliffy Care challenged the exact TOS terms it agreed to when it created a new account. Google’s records show that Cliffy Care agreed to “agreement 294, version 2.5, legal_document_id 131839,” but Cliffy Care says this may not be the same as the TOS text Google submitted in its filings. The court says this objection is too speculative to cast doubt on Google’s evidenece.

The advertisers’ unconscionability arguments don’t persuade the judge either. The court points to their ability to opt-out of arbitration and says “neither Stellman nor Cliffy Care claims to have been actually confused by the Terms, blindsided by the inclusion of the arbitration clause, or state that they were pressured or coerced into accepting the arbitration provision.”

Implications

The court denied Google’s requested arbitration in March 2024, but grants it now. What’s the difference? In the interim, Google and advertisers conducted fact discovery on the TOS formation/amendment. Thus, Google’s earlier request was based on less definitive facts than the successful request (it’s a bit like the distinction between a motion to dismiss and summary judgment). After the fact discovery, the court was able to confidently state the facts without just relying on Google’s self-representations. That turned a preliminary Google loss into a relatively easy Google win.

At the core of Google’s success was its evidentiary recordkeeping, which meant it could definitively point to when the advertisers agreed to the terms in a manner that convinced the judge. A different way of saying this: you can have the most airtight contract formation process ever, but if you can’t provide credible evidence of the process, it can still fail in court. Pay attention to your recordkeeping and evidence management when implementing and amending TOSes.

Still, while Google’s evidence management deserves some praise, I’m still scratching my head about why the court didn’t display the text of the notice campaign.

Case Citation: In re Google Digital Advertising Antitrust Litigation, 2025 WL 289726 (S.D.N.Y. Jan. 25, 2025). The CourtListener page.

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This is a design patent SAD Scheme case before Judge Jeremy C. Daniel in the Northern District of Illinois. (He’s a Biden appointee from 2023). Immediately after the plaintiff filed its papers on November 1, Judge Daniel sua sponte issues an order that starts:

experience has shown that not all defendants named in a Schedule A case work together. More importantly, experience has shown that joinder under Fed. R. Civ. P. 20 is rarely appropriate in Schedule A cases.

Hello! The joinder problems should be obvious even without any past litigation experience, but at least the judge is now preemptively asking the right questions. Perhaps Judge Daniel feels a little burned by past SAD Scheme plaintiff gamesmanship?

Judge Daniel rejects the standard boilerplate allegations about joinder:

the complaint alleges that, “On information and belief, Defendants are an interrelated group of infringers working in active concert to knowingly and willfully make, use, offer for sale, sell, and/or import into the United States for subsequent sale or use the same product that infringe the **552 Patent in in a series of occurrences.” This is a conclusory statement that does nothing to establish the propriety of joinder. Moreover, experience has shown that, while some individual defendants may operate several online stores, and while some individual defendants may coordinate with other defendants before or after the filing of the infringement action, rarely, if ever, have all defendants named in a Schedule A case worked together.

As a result, Judge Daniel gives the plaintiff a choice: file a brief justifying joinder, or amend the complaint to reduce the defendants down to those who are properly joined.

* * *

Most SAD Scheme complaints contain some variation of this allegation: “Defendants are an interrelated group of infringers working in active concert.” However, the complaints rarely or never back up this claim with any defendant-specific supporting facts. Instead, the only “supporting” evidence eventually provided by plaintiffs is that the merchants sold the same (allegedly infringing) item in parallel with each other on the online marketplaces, which does not satisfy joinder standards (especially for patent cases, where Congress has imposed higher standards for joinder). Nevertheless, the plaintiffs hope the judges will take the joinder allegations on faith, then forget to double-check as the facts in the case actually emerge.

In this order, Judge Daniel instead “requires counsel for the plaintiff to show cause why the allegation that ‘defendants are working in active concert’ does not violate [FRCP] Rule 11(b)(3).” In other words, Judge Daniel calls BS on the joinder allegations and is prepared to hold the plaintiff’s lawyer (Robert Michael Dewitty of Dewitty And Associates) accountable for trying. (To be clear, if Judge Daniel is unsatisfied with the explanation, I expect the most “severe” sanction will be dismissal of the case, nothing more).

I haven’t looked to see if Judge Daniel has questioned joinder in other SAD Scheme cases. Either way, it seems like he’s now fully alert to the SAD Scheme joinder problem and should be inclined to similarly interrogate every future SAD Scheme case that makes it to his courtroom. Maybe that will inspire other N.D.Ill. judges to proactively do the same. And while they are at it, maybe the judges can preemptively probe other individualized fact-based questions like jurisdiction. #StoptheSADScheme

Case Citation: Dongguan Juyuan Precision Technology Co., Ltd. v. The Partnership and Unincorporated Associations Identified on Schedule A, No. 1:24-cv-11301 (N.D. Ill. Nov. 4, 2024)

UPDATE: Shocker…the plaintiff dismissed the complaint entirely rather than show joinder. The judge accepted the dismissal rather than pursuing the Rule 11 violation. This becomes a no-harm, no-foul situation, even though there was a foul and the judge should have held the plaintiff to account.

Prior Blog Posts on the SAD Scheme

• 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 Will Judges Become More Skeptical of Joinder in SAD Scheme Cases?–Dongguan Juyuan v. Schedule A appeared first on Technology & Marketing Law Blog.

Owen nevertheless thinks Susan should have sold the Cat Island property and invested the money elsewhere. He’s also not thrilled that Susan retained the property partially for sentimental reasons and mixed business and vacation-time on visits to the property. The trust finally sold the property in 2022.

To advance his case, Owen retained an “expert,” Charles W. Ranson, who advertises himself as providing “Trusts & Estates Litigation Consulting & Expert Witness Testimony.” It’s fair to say that this expert engagement doesn’t go well. The court says it found “his testimony and opinion not credible,” something no expert witness ever wants to see published in a court opinion. That can’t be good for business.

Owen claimed that if the trust had sold the real estate, it could have invested the cash into the stock market. In support of this, Ranson’s report showed how much money the trust would have had if it had sold the property twenty years ago and invested the proceeds in a Vanguard mutual fund. There are a number of problems with this, including (1) this argument benefits from hindsight bias by claiming that a trustee should have put money into an asset when the asset’s returns are already known, and (2) it is logical and defensible for a trust to diversify asset classes.

The reason I’m blogging this case is that Ranson used Microsoft Copilot to compute the theoretical value of the reinvested proceeds. Why would he do that? It’s not hard to find the compound return rate for a Vanguard mutual fund, so what insight does generative AI add to this process? You don’t need AI, or even an expert, to compute these amounts. A good old-fashioned calculator or Excel spreadsheet is all you need.

The court is NOT IMPRESSED by Ranson’s use of generative AI here. The court reran Ranson’s queries at Copilot and got slightly different numbers each time. The “fact there are variations at all calls into question the reliability and accuracy of Copilot to generate evidence to be relied upon in a court proceeding.” The court then asked Copilot if it was reliable and accurate, and Copilot self-reported that it’s always a good idea to double-check its work. (This was a bit of a parlor trick by the court; Copilot isn’t actually writing these responses in a reasoned fashion).

It sounds like this isn’t the first time that Ranson used generative AI as part of his expert work. The court recounts:

Mr. Ranson was adamant in his testimony that the use of Copilot or other artificial intelligence tools, for drafting expert reports is generally accepted in the field of fiduciary services and represents the future of analysis of fiduciary decisions; however, he could not name any publications regarding its use or any other sources to confirm that it is a generally accepted methodology.

Say what? The whole point of retaining an “expert” is that they have specialized knowledge that they can bring to bear on the facts at issue in the case. If the same knowledge is readily available from an AI chatbot, then the lawyers can consult the AI directly and skip retaining an “expert” at all. In other words, it seems like Ranson is undermining demand for his expert witness services…

(Note also that submitting queries to a chatbot could disclose confidential information about the case to the model, though that probably wasn’t a concern with this specific query).

Overall, the court isn’t ready to hand over expert work to the machines:

The mere fact that artificial intelligence has played a role, which continues to expand in our everyday lives, does not make the results generated by artificial intelligence admissible in Court….this Court holds that due to the nature of the rapid evolution of artificial intelligence and its inherent reliability issues that prior to evidence being introduced which has been generated by an artificial intelligence product or system, counsel has an affirmative duty to disclose the use of artificial intelligence and the evidence sought to be admitted should properly be subject to a Frye hearing prior to its admission

I don’t love the AI exceptionalism in this approach. Instead, I see the court’s expectation as one specific application of the standard duty of expert witnesses to explain their methodology. If an expert witness is using an Excel spreadsheet to compute investment returns, the expert probaby needs to disclose the spreadsheet so that the other side can see the assumptions and check the numbers. If the expert is skipping that step and asking a chatbot to spit out a valuation, then the queries and chatbot involvement do need to be disclosed so that the other side can test its credibility. So I think a general reminder to lawyers and expert witnesses to “show their work” was all that was needed, without any AI-specific admonishments.

Case Citation: Matter of Weber, 2024 NY Slip Op 24258 (N.Y. Surrogacy Ct. Oct. 10, 2024).

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The statute defines the crime:

A person commits the offense of tampering with physical evidence if, knowing or having reason to believe an official proceeding has begun or knowing that an official proceeding is likely to be instituted, that person alters, destroys, mutilates, conceals, or removes a record, document, or other object, with intent to impair its integrity or its availability for use in the official proceeding.

From an Internet Law standpoint, the tension should be obvious. The crime is called “tampering with physical evidence” but the protected evidence is defined as “a record, document, or other object.” Those aren’t enumerated as physical records or documents, though that might be inferred from the context.

The defendant admitted he knew that the police investigation had been started and he deleted his Instagram post to thwart it. That leaves the only open questions: was the Instagram post “a record, document, or other object,” and did he impair its integrity or availability?

The court says “yes.” In this context, the court says that “physical” evidence is the antonym of testimonial evidence, so the protected evidence includes all tangible and intangible non-testimonial evidence. The federal statutory language is virtually identical, and “Courts have held that 18 U.S.C. § 1512(c) covers digital evidence. For example, the Fifth Circuit held that the deletion of emails qualifies as a violation of the statute.” For more on the federal crime, see this story.

Having established that intangible evidence such as an Instagram post can be “a record, document, or other object,” the rest of the case is easy. “Treating the present screenshot of an Instagram post as a “record” aligns with how the term has often encompassed digital materials like photographs, emails, video recordings, and audio recordings.”

The deletion of the Instagram post was “tampering”:

When Webb removed the image and accompanying comments from his Instagram account, he altered and concealed the post’s digital profile such that the photo of his fist, the time stamp, and the thread of comments were no longer available to view. Even if that information were still accessible to the server’s owners or to software engineers, Webb concealed the post’s data such that it was no longer visible to the public, to Webb, or to Webb’s Instagram followers.

We’ve been in the Internet era for 30+ years, and yet we are still wrestling with the most basic Internet Law question of all: to what extent do old laws apply to the new technology, or do we need new laws to fill any gaps? In this particular case, the old law applied to the new technology without any need for statutory modification because the old law’s terminology covered both tangibles and intangibles. There may be other areas of law where collapsing the distinction between tangibles and intangibles is highly problematic (the doctrine of conversion comes to mind), but I didn’t see that as a problem here.

To be clear, deleting electronic data and records isn’t always “evidence-tampering.” The deleter has to know that an investigation has begun and intend to thwart the investigation. So feel free to delete items before you get that notice. Indeed, it’s good hygiene to purge what you don’t need periodically. Also, it’s rarely a good idea to boast about your crimes online.

Case Citation: Webb v. U.S., 2024 WL 3448243 (D.C. Ct. App. July 18, 2024).

UPDATE: With respect to the last point about the inadvisability of doing it for the ‘gram, see U.S. v. Lesh, 2024 WL 3418837 (10th Cir. July 16, 2024).

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