The plaintiff sued in state court, the defendant removed to federal court, and in this ruling, the court remands the case back to state court because the plaintiff lacks Article III standing. This reminded me of the Yelp law litigation genre, where the cases routinely bounce from federal court because they are such trash that they lack Article III standing. Getting a case remanded to state court because the case is so terrible seems like a short-term “victory” for plaintiffs.

* * *

The court summarizes the key evidence of the lawsuit’s lack of merit:

[Defendant’s] search confirmed that Defendants received three leads from online searches for the terms “Brothers Buy Homes,” or “Brothers Buys Homes” between January 1, 2024, and December 31, 2024. All three leads occurred when the keyword insertion feature was turned off; thus, Blue Bay’s trademark never appeared in any of the three ads that generated leads. Blue Bay’s Operations Manager, Mike Briener, admitted there would not be any confusion with potential customers if the keyword insertion feature was turned off and Blue Bay’s trademark name did not appear in Defendants’ ad. Defendants therefore did not receive any revenue, profit, or business opportunity from any Google Ads containing Blue Bay’s name.

Let’s go over that the evidence again:

(1) The plaintiff is suing over 3 clicks. That alone is almost certainly financially irrational.

(2) Those clicks came from keyword ads without the plaintiff’s trademark in the ad copy.

(3) The plaintiff concedes those clicks aren’t attributable to consumer confusion. Briener’s concession may sound like a big deal, but he’s just acknowledging black letter law. Courts have repeatedly and unhesitatingly rejected trademark lawsuits over competitive keyword ads that don’t reference the TM in the ad copy. See, e.g., the Lerner & Rowe case.

(4) Defendants “did not receive any revenue, profit, or business opportunity from any Google Ads containing Blue Bay’s name.”

Why is this case still going? What are we even doing here?

The court recapitulates why this lawsuit is so meritless:

Defendants’ evidence shows that Defendants have not misrepresented themselves as Blue Bay, Defendants did not use Blue Bay’s trademark to generate leads by confusing consumers, Defendants did not do business with consumers who mistook Defendants as Blue Bay, and Blue Bay has not lost money from Defendants’ actions.

Sounds like this case is primed for dismissal. However, unfortunately for the defendants, the court resolves these problems on Article III standing rather than substantively dismissing the case for lack of merit. The court says it’s required to remand the case due to the Article III problem. This case is already clearly dead, but I guess the funeral will be a bit delayed. It seems like an excellent candidate for a trademark fee shift to the defendant.

Case Citation: Blue Bay Ventures LLC v. John Buys Bay Homes LLC, 2026 WL 710398 (N.D. Cal. March 13, 2026)

Personnel note: the plaintiff’s lawyer is Steffanie Danielle Stelnick, whose website self-styles herself as “the Real Estate Queen.” Her bio explains: “she earned her title as the Real Estate Queen helping clients with their full service real estate needs year after year.”

BONUS: David Penner MD PLLC v. Clear TMS+ PLLC, 2026 WL 838294 (W.D. Wash. March 26, 2026): “Clear argues persuasively that its purchasing or using a “keyword” is not itself a trademark infringement.”

* * *

More Posts About Keyword Advertising

* 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 Another Reminder: Lawsuits Over Competitive Keyword Ads Are Stupid appeared first on Technology & Marketing Law Blog.

Richards’ mission apparently includes becoming a serial plaintiff:

With respect to this lawsuit: Richards claims that Google downranked the SpirituallySmart website starting in 2009 due to Google’s alliances with the Vatican and the US government. The downranking allegedly cost him millions of potential readers and substantial revenue. Unsurprisingly, his must-carry lawsuit goes nowhere, similar to the dozens of other failed content removal cases.

First Amendment

“Acknowledging that Google is not a government entity, Richards’s complaint and opposition brief include lengthy discussions of the ways Google’s conduct transforms it into a state actor.”

With respect to entwinement, “the executive orders that Richards cites involve restrictions on the use of AI and the training of AI models in the federal government, not Google search results. Further, any Vatican-Google partnership or coordination does not suggest that Google is entwined with the United States government, but rather a foreign entity.”

With respect to the public function test, “There is no indication that the government delegated any function to Google, let alone a function that was traditionally and exclusively performed by the government.”

Common Carriage

Richards urges the court to find that Google is a common carrier by using Justice Thomas’s framework from his concurrence in Moody v. NetChoice…While the law may someday reflect the argument that Richards raises, the current state of the law does not establish that Google is a common carrier.

(Thanks, Justice Thomas, for the helpful commentary!)

The court cited Ohio v. Google and says Virginia’s common carriage law similarly only applies to “the transport of persons or commodities.”

Religious Freedom Restoration Act

“The section does not encompass actions between private parties or corporations, such as Google.”

Section 230

“Richards’s state law claims include tortious interference with business relations, civil conspiracy, fraudulent misrepresentation, unjust enrichment, defamation by implication, intentional interference with prospective economic advantage, violation of the Virginia Consumer Protection Act, and violation of Viriginia’s misappropriation statute.”

These claims all fail due to Section 230:

Google’s decision to display Richards’s content on the first page of the search results or Google’s decision to suppress Richards’s content, even if true, would fall squarely within the protection of Section 230 as editorial decision-making.

Cite to Dowbenko v. Google.

The claims also failed on their prima facie elements. This is yet another situation where reforming 230 wouldn’t change the outcome.

This lawsuit also has a major statute of limitations problem, given that Google’s downranking allegedly occurred in 2009.

Case Citation: Richards v. Google LLC, 2026 WL 353617 (W.D. Va. Feb. 9, 2026)

Prior Blog Posts on Common Carriage

• Ninth Circuit Deletes RNC’s Lawsuit Over Gmail’s Spam Filter–RNC v. Google
• Google Search Isn’t a “Common Carrier” (DUH)–Ohio v. Google
• Court Blows Up Gmail’s Section 230 Protection, But Allegations of Biased Spam Filtering Still Fail–Republican National Committee v. Google
• Statement on the Supreme Court’s Ruling in Moody v. NetChoice
• Section 230 Protects Gmail’s Spam Filter–RNC v. Google
• Is Google’s Search Engine a “Common Carrier”? (Seriously???)–Ohio ex rel Yost v. Google
• Big Ruling for Free Speech: Most of Florida’s Social Media Censorship Law (SB 7072) Remains Enjoined–NetChoice v. Attorney General
• Texas and Its Amici Try to Justify Censorship in Their NetChoice v. Paxton Fifth Circuit Briefs
• Court Enjoins Texas’ Attempt to Censor Social Media, and the Opinion Is a Major Development in Internet Law–NetChoice v. Paxton
• Anti-Zionist Loses Lawsuit Over Social Media Account Suspensions–Martillo v. Facebook
• Texas Enacts Social Media Censorship Law to Benefit Anti-Vaxxers & Spammers
• 31 Bogus Passages from Florida’s Defense of Its Censorship Law–NetChoice v. Moody
• Florida Hits a New Censorial Low in Internet Regulation (Comments on SB 7072)
• Deconstructing Justice Thomas’ Pro-Censorship Statement in Knight First Amendment v. Trump
• Facebook Defeats Lawsuit Over Alleged ‘Shadowbanning’–De Souza Millan v. Facebook
• Are Social Media Services “State Actors” or “Common Carriers”?

The post Google Search Isn’t a Common Carrier–Richards v. Google appeared first on Technology & Marketing Law Blog.

Trying to salvage its jury win, the defense challenges the jury’s finding of confusion. The defense argued that the 2024 jury’s likelihood of consumer confusion finding could have only been based on the initial interest confusion doctrine. The defense further argued that the 6th Circuit, in its 2020 ruling this case, rejected the doctrine. The court responds:

The Sixth Circuit did not squarely decide in its 2020 ruling that Dassault’s initial interest confusion theory failed as a matter of law. Indeed, that issue was not even presented to the Sixth Circuit.

The court has this to say about the 2020 Sixth Circuit opinion:

Dassault contended that Childress’ use of the CATIA mark created initial interest confusion as a matter of law. The Sixth Circuit disagreed with that contention. It held that the jury reasonably could have rejected Dassault’s initial interest confusion theory and reasonably have found that Childress’ use of the CATIA mark was “unlikely to cause confusion.”…

The Sixth Circuit was not asked to decide, and did not decide, whether Dassault’s evidence of likelihood of confusion – including its evidence of initial interest confusion – was so weak as to compel judgment in Childress’ favor. Simply put, the Sixth Circuit did not squarely decide that Dassault’s initial interest confusion theory failed as a matter of law…

To be sure, as Childress highlights, the Sixth Circuit was somewhat critical of Dassault’s initial interest confusion theory. But the Sixth Circuit offered those comments in the course of explaining its holding that Dassault was not entitled to judgment in its favor on that theory.

Here’s what the Sixth Circuit said about the initial interest confusion doctrine in its 2020 opinion:

Dassault argues that Childress’s “practicalcatia” domain name would appear whenever someone searched “CATIA” in Google. Before clicking on the link, Dassault argues, a consumer would not see the webpage’s identifying information that clarifies it is not affiliated with Dassault. Dassault characterizes this as a type of “initial interest” confusion that supports infringement.

Dassault’s argument is unavailing. “Simply invoking the term ‘initial-interest confusion’ does not state a viable claim,” let alone warrant judgment as a matter of law. Dassault fails to “explain why, assuming that such initial confusion were to take place, it would not be instantly dissipated without any harm” once the consumer clicks the www.practicalcatia.com link and enters the website—a website with numerous indicators that clarify it is not affiliated with Dassault. Moreover, when www.practicalcatia.com is displayed in Google’s search results, Childress suggests that even the preview of the site displays the disclaimer: “CATIA is a registered trademark of Dassault Systèmes and has no affiliation with Practical Catia Training.”

If the principal source of purported consumer confusion is that the domain name shows up in inscrutable search results that link to a website with ample disclaimers, the Fourth Circuit (per Lamparello) would decisively say any confusion about the domain name must be evaluated in combination with the (disclaimered) website. If the Sixth Circuit follows the Fourth Circuit’s lead on this point, then how can there be any initial interest confusion? (The Lamparello case has been good law in the Fourth Circuit and beyond for 20 years).

That leaves me to wonder what value the initial interest confusion doctrine is adding to this case. I didn’t sort through the nearly 20 years of filings to figure out if there were other facts that could have caused “initial interest” confusion, but precision about those facts matters a lot. Based on this 2026 opinion, I can’t see any aspect of the court’s analyses that was enhanced by the “initial interest confusion” doctrine.

Case Citation: Dassault Systemes, S.A. v. Childress, 2026 WL 323779 (E.D. Mich. Feb. 6, 2026). The GovInfo page.

The post How Does the Initial Interest Confusion Doctrine Improve Trademark Analyses?–Dassault v. Childress appeared first on Technology & Marketing Law Blog.

Doe v. City of Warwick, 2025 WL 2197311 (D.R.I. Aug. 1, 2025)

This case involves a third-party service that collects anonymous citizen tips for law enforcement. The service is called Tip411 and is offered by Citizen Observer. The city of Warwick adopted Tip411. Doe claims that Roe anonymously submitted harassing tips to Tip411. All of the tips proved false, but the tips caused law enforcement to confront Doe in an aggressive manner.

Doe sued Citizen Observer for negligently designing its service. Citizen Observer invoked Section 230. The court says that Doe properly stated a products liability claim:

His claims are based on the Tip411 product; that is, he is asserting product liability, negligence, and breach of warranty claims based on Citizen Observer’s own conduct in developing, marketing, and selling an allegedly defective law enforcement tool. His claims are also focused on the absence of adequate warnings to Tip411 users and Citizen Observer’s failure to provide municipal trainings. Reading the allegations in Mr. Doe’s complaint and taking the facts stated as true, the Court finds that Mr. Doe claims against Citizen Observer are product liability claims based on its conduct in defectively designing and failing to warn and/or train foreseeable users and breach of warranty of the Tip411 product.

Hmm…this seems problematic. For example, what “warnings” would have changed Roe’s behavior? And Citizen Observer is supposed to teach law enforcement how to do its policing work?

It goes downhill from there:

Illogically, Citizen Observer also asserts that it acts as a passive message board and/or server host. Mr. Doe agrees with the latter, asserting that Citizen Observer does not take part in any of the communication that is directed through their platform in anyway, as they do not monitor, filter, or address the tips that travel through the application. Because it has been established that a publisher takes part in “reviewing, editing, and deciding whether to publish or to withdraw from publication third-party content[,]” Mr. Doe asserts that it is impossible for Citizen Observer to be immune as a publisher and/or speaker of Mr. Roe’s posts when it acts as a passive message board and does not review, edit, or monitor what posts are published on its platform. The Court finds that Mr. Doe’s claims do not treat Citizen Observer as a publisher and therefore it is not immune from his state-law claims.

No. Just no. Section 230 protects the decision not to edit (a leave-up decision) just as much as the decision to edit (remove). And “conduits” get just as much Section 230 protection as web hosts. For example, IAPs aren’t liable for third-party content flowing through their network (230’s definition of ICS expressly includes IAPs). So this is clearly wrong. Let’s hope the court gets on track in the next round.

Chabot v. Frazier, 2025 WL 2164002 (Tex. Ct. App. July 30, 2025)

Chabot contends Frazier’s claims for defamation relating to Chabot’s republication of the December 2023 DMN and WFAA.com articles are barred by section 230 of the Communications Decency Act (the CDA)….Simply put, the CDA generally bars defamation and libel claims against an entity that merely passively permits the publishing (or, here, the republishing) of another’s content. GoDaddy.com, LLC v. Toups, 429 S.W.3d 752, 755 (Tex. App.—Beaumont 2014, pet. denied). Chabot maintains that the website is a provider of an interactive computer service as defined by the CDA, that the content at issue was provided by another information content provider, and Frazier’s allegations improperly seek to treat Chabot as a publisher of the content posted on the website

Frazier argues that Chabot is not entitled to immunity for his publication of the 2023 WFAA.com article because Chabot did not act neutrally when he republished the article under the headline “Collin County Rep. Fred Frazier Dishonorably Discharged from DPD” after he had been informed of the article’s inaccuracies and after WFAA had published an updated and corrected article. Frazier asserts that instead Chabot acted as an information content provider by republishing the article.

Under the limited record here and viewing the evidence in the light most favorable to Frazier, we conclude Chabot did not establish as a matter of law immunity under the CDA

Ugh, this line: “the CDA generally bars defamation and libel claims against an entity that merely passively permits the publishing (or, here, the republishing) of another’s content.” The phrase “passively permits the publishing” is gibberish. Publishing is never passive!

In a footnote, the court adds “Where a defendant contributes to and shapes the
content of the information at issue, there is no immunity under the CDA.” I’ve complained before about the nonsensical and illogical “content shaping” exception to Section 230. Seeing this bad meme perpetuate is painful.

This case seems to cover some of the same ground as the D’Alonzo case from 20 years ago, which is so old that the lawyers probably had no idea it existed. I’ve repeatedly posted about how 230 can apply to verbatim content republication before. Too bad the court had no idea.

Stearns v. Google Inc., 2025 WL 2391555 (N.D. Cal. Aug. 18, 2025)

He alleges that he performed a Google search on May 11, 2019, which unwittingly returned images of child pornography which formed the basis of federal charges that were subsequently field against him. Plaintiff was convicted and sentenced to 11 years….

section 230 of the CDA generally immunizes entities like search engines from liability for claims involving how these entities do or do not moderate content created by others….The CDA would preclude any claim like plaintiff’s even if he stated a claim under state law [cite to Ginsberg v. Google]

Riganian v. LiveRamp Holdings, Inc., 2025 WL 2021802 (N.D. Cal. July 18, 2025)

This is a class-action lawsuit alleging “LiveRamp has tracked, compiled, and analyzed vast quantities of their personal, online, and offline activities to build detailed ‘identity profiles’ on them for sale to third parties.” With respect to Section 230:

• “Plaintiffs are asking LiveRamp ‘to moderate its own content.'”
• “CDA immunity does not apply when the defendant contributes to or shapes the content at issue.” Ugh, the content “shaping” meme again….
• “The Data Marketplace does not consist only of user-generated content…[LiveRamp] is the ‘information content provider’ of the [Data Marketplace] dossiers because it is ‘responsible, in whole or in part, for the creation or development of’ those dossiers.”

U.S. v. EZLynk, SEZC, 149 F.4th 190 (2d Cir. August 20, 2025)

The district court ruling in this case was so interesting that I based my Fall 2024 Internet Law final exam around it.

EZ Lynk is a type of app store to obtain apps (called “tunes”) to customize cars. The app store includes many defeat device apps designed to overcome the manufacturer’s emission control efforts, i.e., to run a more polluting car. The district court ruled that the app store qualified for Section 230 protection. The Second Circuit disagrees.

The Second Circuit credits the following allegations that EZ Lynk materially contributed to the alleged unlawful activity:

EZ Lynk “directly and materially” contributed to the development of delete tunes disseminated through the EZ Lynk System. It worked with delete-tune creator PPEI “in the early stages of testing the EZ Lynk System[,] approximately two years before the system’s launch in 2016,” and again previewed the updated device before its launch in 2018. Several of the posts cited in the Complaint explicitly refer to drivers installing PPEI-provided delete tunes through the EZ Lynk System, and PPEI jointly administers the EZ Lynk Forum Facebook group, helping drivers troubleshoot the installation of their delete tunes using the EZ Lynk System. The Complaint also alleges EZ Lynk “work[ed] with” and “collaborated with” delete-tune creator GDP Tuning before the EZ Lynk System was publicly available

OK, but the apps/tune are still third-party content, no? Relying heavily on the problematic LeadClick case, the Second Circuit says the allegations:

raise the reasonable inference that Appellees deliberately courted – i.e., “recruited” – delete-tunes creators and “collaborated with” them to ensure that their delete tunes would be compatible with and available to users of the EZ Lynk System. Under that inference, Appellees “did not merely act as . . . neutral intermediar[ies]” between the delete tunes creators and vehicle owners “but instead ‘specifically encourage[d] development of what [was] offensive about the content.’”

I mean, isn’t this is what all app stores do? To ensure good consumer experiences, app stores provide a set of technical specifications for compatible apps, review the apps for various standards, and otherwise exercise content moderation over the apps’ availability. So does this mean that all app stores are not “neutral intermediaries” (ugh) of any “illegal” apps available in their app stores?

I think the court was likely responded to the problematic nature of defeat devices and not intending to doom all app stores, but the sloppy handling of Section 230 for app stores leaves plenty of room for future plaintiff mischief.

Gibralter LLC v. DMS Flowers, LLC, 2025 WL 2623293 (E.D. Cal. Sept. 11, 2025)

This is a trademark dispute between floral businesses that spilled over to Teleflora, which provides an ecommerce platform.

With respect to the state law claims (“Unfair and Deceptive Trade Practice, Common Law Trademark Infringement and Unfair Competition, and Trademark Dilution and Injury to Business Reputation”), the court says Section 230 applies to Teleflora’s liability:

The FAC alleges that Teleflora’s online platform enables third parties to sell their products through “estores” on an affiliate network such that Teleflora qualifies as an “interactive computer service provider” under the CDA…. [Cite to the Parts.com v. Yahoo decision from a dozen years ago.]

A party is not an information content provider outside the ambit of CDA
immunity unless it creates or develops the offending content in whole or in part. Plaintiffs’ allegations establish at most that Teleflora controls, supervises, monitors, and profits from the offending content – not that it created or developed that content.

The court applies Section 230 to state IP claims but it spends no time justifying that decision, which is correct in the Ninth Circuit but not well-accepted elsewhere.

UPDATE: The court also dismissed the state law claims in the Second Amended Complaint on the same grounds:

At most, the allegations suggest that Teleflora operates the online platform that enables third party floral partners to sell their products through its online partnership program. In alleging that Teleflora “publishes” each floral partner’s business information, promotes these businesses, “monitors and inspects” the partnership network, and “actively and routinely publishes, codes, and updates substantial content and placement of content on the floral partner’s estore[s],” Plaintiffs show that Teleflora operates akin to an “interactive computer service provider” under the CDA rather than a party that creates or develops infringing content outside the ambit of the CDA

2026 WL 194328 (E.D. Cal. Jan. 26, 2026)

Bodin v. City of New Orleans, 2025 WL 2589590 (E.D. La. Sept. 8, 2025)

This is a challenge to New Orleans’ rules for short-term rentals. The court rejects Airbnb’s challenges based on Section 230 (emphasis added):

The 2024 Ordinance requires Airbnb to verify the registration status of each listing “before any booking transaction is facilitated,” and to reverify each listing “at least every 30 days of the prior verification” and whenever Airbnb “knows or should know” that any data relevant to verification has changed, essentially requiring Airbnb to monitor the registration status of all of its New Orleans listings to identify changes that are potentially material to verification. Airbnb alleges that by forcing it to engage in verifying the registration status of a third-party listing, the 2024 Ordinance treats Airbnb as a publisher of third-party content in conflict with § 230. Airbnb claims that the 2024 Ordinance runs further afoul of § 230 by effectively requiring Airbnb to remove listings when it cannot verify that the host is eligible to list the property….

The 2024 Ordinance does not operate against Airbnb’s role as a publisher of third-party STR listings but rather against its conduct as a booking agent between users and hosts for which Airbnb earns a fee. The 2024 Ordinance does not require Airbnb to monitor or delete anything from its website. Airbnb remains free without penalty to allow as many unlawful STR listings on its website as it chooses to. The 2024 Ordinance simply precludes Airbnb from collecting a fee, in other words profiting, for booking an STR transaction that includes a non-permitted (unlawful) STR. Airbnb may very well determine that for its business model the most effective means of compliance will be to review its website so as to remove unpermitted host listings from its site but the 2024 Ordinance does not compel that action….. Because the verification requirement of the 2024 Ordinance does not treat Airbnb as the speaker or publisher of third party content, the CDA is not implicated.

Oh come on.

Greater Las Vegas Short-Term Rental Association v. Clark County, 2025 WL 2608146 (D. Nev. Aug. 28, 2025)

The regulation at issue “directly imposes verification, monitoring, and deactivation obligations on hosting platforms.” The court accepts Airbnb’s Section 230 challenge using a Calise duties analysis:

The Court agrees with Plaintiffs that the “duty to monitor” springs from Airbnb’s status as a publisher of host listings….platforms like Airbnb are only required to monitor the content of host listings if they are licensed to do business in Clark County… [Note: I didn’t understand this discussion]

Plaintiffs contend unlike the Santa Monica ordinance in HomeAway, the Clark County Ordinance requires that postings be “verified prior to publication,” “monitored to ensure they contain certain information,” or “removed when certain conditions are met.” The Court is persuaded that these requirements distinguish the Clark County Ordinance from the ordinance at issue in HomeAway. Moreover, at the Hearing, Defendant conceded that the provisions in question do impose a duty on platforms like Airbnb to monitor content.

It looks like the plaintiffs win here because Clark County imposed liability upon publication, rather than only at the time of booking?

Onwuka v. Twitter Inc., 2023 Cal. Super. LEXIS 113496 (Cal. Superior Ct. Dec. 12, 2023)

The court summarizes: “plaintiff is unhappy with defendant’s editorial and/or publishing processes” (i.e., alleging racial discrimination in its content moderation practices). In light of the Murphy v. Twitter case, this is an easy Section 230 dismissal. “Defendant’s content rules are typical publisher conduct….Defendant’s policy that required plaintiff to check a box admitting that he violated defendant’s rules to unlock his account–even if unfair or untrue–is such publishing conduct….All of the content that plaintiff claims defendant required him or others to remove (and all of the content in plaintiffs locked account) is created and posted by plaintiff and others, not defendant.”

Espinha v. Elite Universe, Inc., 2025 Cal. Super. LEXIS 42223 (Cal. Superior Ct. July 24, 2025)

In support of the first cause of action, Plaintiffs allege Defendant operates a website on which a user accused Plaintiffs of working “to protect and advance the interests of a network of illegal . . . scam artists”, and Defendant refused to remove the posts even though the user who made them agreed to do so. As Defendant points out, the Communications Decency Act of 1996 immunizes Defendant from liability…Even if Plaintiffs allege actionable claims for defamation against the person who made the posts on Defendant’s website, Defendant is not liable for maintaining the website. Moreover, “[w]here. . . an internet intermediary’s relevant conduct in a defamation case goes no further than the mere act of publication—including a refusal to depublish upon demand, after a subsequent finding that the published content is libelous—section 230 prohibits this kind of directive.”…

Plaintiffs also rely on Liapes v. Facebook (2023) 95 Cal.App.5th 910, which is not on point. In that case, the Court of Appeal held the Communications Decency Act of 1996 does not immunize a social media platform acting as an information content provider by requiring users to disclose their age and gender to design and create an advertising system which required advertisers to exclude delivery to users based on those characteristics. In the instant case, Plaintiffs’ allegations are simply Defendant permitted a user’s post to remain on its site. Plaintiffs do not allege facts to show Defendant acted as an information content provider—”that is, someone ‘responsible in whole or in part, for the creation or development’ of the content at issue.”

Day v. TikTok, Inc., 2022 U.S. Dist. LEXIS 34380 (N.D. Ill. Feb. 28, 2022)

The plaintiff complained about videos uploaded by another user. An obvious Section 230 case. A meritless FOSTA workaround also failed.

Amy v. Apple, 5:24-cv-08832-NW (N.D. Cal. Oct. 15, 2025)

This is a putative class action brought against Apple, Inc. by individuals depicted in Child Sexual Abuse Material (“CSAM”) shared using Apple’s technology and hosted on Apple’s servers. Named Plaintiffs Amy and Jessica (using pseudonyms) allege violations under 18 U.S.C. §§ 2252, 2252A, and 2255 as well as violations of products liability and negligence state laws….

Plaintiffs allege that Apple’s failure to implement NeuralHash or any other child safety features capable of detecting known CSAM on its products caused Plaintiffs to be injured because CSAM depicting them was received, possessed, and distributed using Apple products. Apple could have designed its products to protect and avoid injury to child victims of known CSAM, and Apple knew or should have known that CSAM depicting Amy and Jessica would continue to spread through Apple’s products without Apple implementing proactive detection technologies. Despite this knowledge, Apple avoided design changes that would have increased safety and reduced the injury to CSAM victims. Plaintiffs allege that Apple’s failure to implement any known CSAM detection is a design defect because Apple can safely implement readily available features to prevent the spread of known CSAM but has continuously failed to do so.

The court points to the Doe v. Apple decision, which alleged similar claims on similar facts, and “Plaintiffs rely on the same arguments and analyses that the Court rejected
previously.” The court points out that the plaintiffs have problems with Apple’s alleged scienter and the applicability of Section 230.

Paul v. Brattin, 2025 WL 2845390 (W.D. Mo. Oct. 7, 2025)

This is a claim that retweeting created false light liability:

Mr. Richard Brattin, a Missouri State Senator, reposted an X post originally authored by Deep Truth Intel. The post featured a photo of Mr. Loudermill handcuffed on the curb and stated, “The Kansas City Chiefs Super Bowl Parade shooter has been identified as 44-year-old Sahil Omar, an illegal immigrant.” Mr. Brattin’s repost added “@POTUS CLOSE THE BORDER.” Contrary to Mr. Brattin’s post, Mr. Loudermill was not an illegal immigrant or connected to the shooting.

The court correctly says that Section 230 doesn’t apply to Brattin’s addition (“@POTUS CLOSE THE BORDER”) because that’s first-party content. However, Brattin’s addition isn’t false light on its own or in context, so the court should have dismissed the claim. Instead we get this:

Mr. Brattin created his own X post for which Ms. Paul seeks to hold him liable. There are no allegations about the content of the Deep Truth Intel post, only Mr. Brattin’s.  The face of the Amended Complaint does not seek to hold Mr. Brattin liable for the Deep Truth Intel post. Ms. Paul’s false light claim is plausible on its face. Mr. Brattin is not entitled to immunity under the CDA for his own post

Paul v. Hoskins, 2025 WL 2845388 (W.D. Mo. Oct. 7, 2025)

Same facts as the prior squib, except a DIFFERENT Missouri State Senator, Hoskins, retweeted the same post with this caption:

Fact – President Biden’s @POTUS open border policies & cities who promote themselves as Sanctuary Cities like @KansasCity invite violent illegal immigrants into the U.S. Fact – Violent illegal immigrants with guns are exactly why we need the 2A. I have the right to protect my … show more

[What is up with all of the Missouri State Senators grandstanding about immigration using false facts? I know the answer to that question, but it’s still disgusting.]

In this case, Hoskins’ caption actually referred to violent illegal immigrants, so the false light claim is more plausible. It too survived a 230 dismissal attempt.

Byrd v. Google LLC, No. 2023 L 013005 (Ill. Cir. Ct. October 31, 2025) 

Plaintiff has failed to provide facts as to how Google has defamed him or violated his right of publicity. Google does not deny that these articles pop up when a search is made for Plaintiff, but Google is not the party that has written these articles or published the pictures. Additionally, the Court finds that under United States Code, “no 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. Thus, the Court finds Google cannot be treated as the publisher of articles that have been published online about Plaintiff, even if they may show up when using their services.

Zenon v. Google, Inc., No. CV-014025/23 (N.Y. Civil Ct. March 25, 2024)

This is a scammy ads case. “As to Google, plaintiff alleges that it allowed Reckon to advertise on its site; that it received payment from Reckon for advertising; and that it did nothing to prevent, alter or remove the content of Reckon ‘s advertisement. Yet these are precisely the editorial functions immunized by Section 230.”

Nordheim v. LinkedIn Corp., 2025 WL 3145293 (N.D. Cal. Oct. 21, 2025)

Another failed pro se account termination case, this time against LinkedIn:

According to Plaintiff, an individual, Aaron Laks, made harmful and false accusation against Plaintiff on LinkedIn. Plaintiff reported Laks’ accusations to LinkedIn but LinkedIn failed to intervene or investigate and, instead, suspended Plaintiff’s account without cause. Plaintiff also alleges that “Linkedin still retains and displays defamatory content” and that LinkedIn banned Plaintiff “due to false reports”. He claims all stem from his alleged harm that he incurred as a result. Plaintiff thus seeks to hold Defendant liable as a publisher for failing to remove content posted by a third-party and for temporarily barring Plaintiff from accessing or controlling his own content….

the content he is concerned with was either created by Laks or by Plaintiff, not LinkedIn…Although Plaintiff complains about the actions LinkedIn took or failed to take with respect to the content created by Laks, or by temporarily preventing Plaintiff from responding to that content, he does not allege any content created by LinkedIn.

Mann v. Meta Platforms, Inc., 2025 WL 3255009 (N.D. Cal. Aug. 18, 2025)

The allegations in Mann’s amended complaint are substantially identical to the allegations in his initial complaint – Meta exposed him to third-party content on Facebook relating to drug use that Mann found distressing….for the reasons stated in the court’s OSC, § 230 bars Mann’s claims.

Mann’s citation to the testimony of Meta’s CEO does not compel a different result. A statement that “Facebook no longer serves its original purpose” and is “now a showcase where the algorithm is in charge” does not render Meta responsible for third-party content on the Facebook platform. This does not amount to a specific promise to remove meth-related third-party content such that § 230 immunity does not apply.

Atlas Data Privacy Corp. v. We Inform LLC, 2025 WL 2444153 (D.N.J. Aug. 25, 2025)

This is a challenge to “Daniel’s Law,” a notice-and-takedown law that permits certain government officials and family members to remove their contact information from online sites. With respect to Section 230:

The court at this early stage has little information about the activities of these four defendants relevant to CDA immunity…At oral argument on the motions to dismiss, defendants candidly conceded that they do not operate platforms where third parties simply post information. Defendants seek out and compensate others for providing the home addresses appearing on their websites.

Even if defendants do not create the home addresses and unlisted telephone numbers of covered persons, the court has insufficient evidence in the record to determine whether they develop it. Defendants We Inform, Infomatics, and The People Searchers acknowledge in affidavits that they “provide comprehensive reports” to their consumers. Smarty similarly attached to its motion screenshots of its website, which state that Smarty “meticulously craft[s] personalized solutions tailored to every facet of [its] customers’ business needs.” The screenshots also provide that its service will “[f]ill in missing data & unlock additional information about any validated street address” that a user searches. To determine whether defendants develop the information in issue and whether they have immunity under the CDA must await discovery.

Niedziela v. Viator Inc., 2025 WL 2732916 (C.D. Cal. Sept. 25, 2025)

A woman suffered serious personal injuries when a tree branch fell on her on a tour booked through Viator (a TripAdvisor subsidiary). Viator defended on Section 230. The court says “the right on which Niedziela’s claim is premised relates to Defendants’ status as publishers of the Waterfall Gardens Tour listing, not a separate or independent right.” Then, citing Calise, the court says:

to the extent that Niedziela’s negligence claim is premised upon Defendants’ failure to warn, Section 230 does not immunize Defendants from liability because Niedziela does not seek to hold Defendants liable for failing to vet or monitor third-party conduct. To the extent that Niedziela’s negligence claim is premised upon Defendants’ advertisement of the Waterfall Gardens Tour or the inclusion of the Waterfall Gardens Tour on the Viator website, however, Niedziela does seek to hold Defendants liable as speakers or publishers, and Section 230 applies

The court also says Viator may have materially contributed to the listing’s content because it added a certification badge (the “Badge of Excellence”) to the listing:

The Court is not persuaded that the Badge of Excellence is an aggregate metric akin to that in Kimzey. The star rating system in Kimzey was a pure aggregation metric that did not include Yelp’s own impressions about the quality of a business. Niedziela, in contrast, alleges that the Badge of Excellence reflects Viator’s evaluation of the quality of the Waterfall Gardens Tour, which included conclusions that Viator drew as a part of its intense vetting process. To the extent that Defendants dispute the truth of Niedziela’s allegations about the criteria reflected in the award of the Badge of Excellence or the role of Viator’s vetting process in deciding whether to award the Badge of Excellence to a tour listing, those disputes are not appropriate for resolution at this stage of the litigation….

even if Defendants are correct that the Badge of Excellence was awarded based upon “objective” criteria such as whether a tour permitted mobile booking, those criteria reflected Viator’s determinations about what conditions affected the quality of a tour experience, not third-party determinations. Thus, unlike a neutral aggregation tool, the Badge of Excellence credited particular postings based upon Viator’s assessment of those postings….for the purpose of the instant Motion, the Badge of Excellence constitutes Viator’s material contribution to the Waterfall Gardens Tour listing, such that Defendants can be held liable as creators of that content even if other content in the listing was provided by a third party

Terms like “neutral aggregation tool” are a good tipoff that the court has lost the jurisprudential plot.

Also, “as a matter of law, “Viator’s Terms of Use were not reasonably conspicuous, and Niedziela is not bound by the exculpatory clause contained therein.”

Prior blog post. The court sets up the facts:

As Plaintiffs explain, each Defendant operates an app store through which social casinos are available for download. Each Defendant also requires apps downloaded from their respective stores to use their respective payment processing system for in-app purchases. Each Defendant then takes a thirty percent cut of every in-app transaction. Whenever Defendants process a virtual chip purchase in a social casino, say Plaintiffs, they are contributing to the problem by unlawfully facilitating illegal gambling transactions

The court previously denied Section 230 for payment processing, but authorized interlocutory appellate review, which the Ninth Circuit declined. The defendants took another run at Section 230, citing the intervening Calise precedent. It doesn’t change the answer:

The crux of the statutory claims in these cases is that Defendants were prohibited from processing in-app payments for social casino apps. Payment processing is not an act of publishing. It is a transaction, one that is “distinct, internal, and nonpublic.” Of course, payment processing activities may be an important part of publishing activity. But that does not make payment processing a publishing activity. Instead, it is better viewed as a generic business activity common to virtually all companies, publishers or not, just like hiring workers or paying taxes…Limits on Defendants’ ability to process certain payments does not interfere with Defendants’ ability to publish third-party apps by offering them in their app stores or by making in-app content available. One can understand this point by recognizing that the duties imposed by these statutes apply equally to dedicated payment processors such as PayPal, Square, and Stripe even though those companies are plainly not publishers. A duty that applies equally to non-publishers does not treat a defendant as a publisher.

The defendants argued that they would have to monitor the activities of the apps to avoid liability. The court is unmoved:

Defendants can choose to stop offering their own payment processing and allow app developers to use the services of dedicated third-party processors. In this way, Defendants can avoid all the issues raised by Plaintiffs’ claims without so much as glancing at any app’s content….

monitoring does not become necessary just because it “would be the best option from a business standpoint” or would be the “most practical compliance option.”…Perhaps if the termination of their payment processing services would pose an existential threat to Defendants, or if it would prevent Defendants from engaging in their publishing activities, then such termination would not be an acceptable alternative to monitoring.

I wonder about any opinion where the court’s answer is essentially “you can avoid liability by exiting the industry.”

The defendants argued that they only provide neutral tools (ugh). The court responds:

While the Ninth Circuit has recognized a neutral tools analysis for Section 230, it has consistently situated that analysis under the third prong of the immunity test—whether content is provided by a third party. This is because the neutral tools analysis informs whether the defendant is a “creator or developer” of content, i.e., whether the content is the defendant’s or another’s.

I’ve repeatedly criticized the “neutral tools” doctrine as an oxymoron, and this narrowing construction by the court is even more dubious. I wonder how the Ninth Circuit will view this doctrinal move by the court.

The court certifies the case for interlocutory appeal once again. It points out in detail various doctrinal problems with Calise, essentially baiting the Ninth Circuit to fix the doctrinal mess it made in Calise. This case will reach the Ninth Circuit eventually, one way or another.

Google LLC v. Latam Airlines Group S.A., 2025 WL 2721690 (N.D. Cal. Sept. 24, 2025)

This case involves two videos that a user uploaded to YouTube that criticized Latam Airlines. In 2018, a Brazilian court held the videos defamed Latam and ordered their removal from YouTube Brazil. In a series of rulings from 2024 and 2025, the Brazil Supreme Court ordered the videos to be removed globally. Google sought relief in US court that it doesn’t have to comply with the global removal order in the US.

The court says Google’s Section 230 argument can support its preliminary injunction request:

• YouTube is an ICS provider.
• The videos came from a third party.
• The Brazilian global removal order would treat Google as the publisher of third-party content. Cite to Google v. Equustek.

The court also says the SPEECH Act protects Google because Brazilian defamation law doesn’t require plaintiffs to show actual malice.

Fleites v. MindGeek S.A.R.L., 2025 WL 2902301 (C.D. Cal. Sept. 25, 2025)

This is a very long FOSTA opinion involving CSAM on Pornhub. Citing Doe v. MindGeek (C.D. Cal. 2021) and Doe #1 v. MG Freesites (N.D. Ala. 2022), the court denies a Section 230 defense because MindGeek is partially responsible for the content development:

Plaintiff claims that MindGeek reviewed, uploaded, categorized, tagged, optimized for user preference and disseminated the videos of Plaintiff. MindGeek also purportedly uploaded the optimized, tagged, and categorized video to its other tubesites. While the Court agrees that Plaintiff’s pleadings as to MindGeek’s involvement in the videos as specific to her leave more to be desired, the Court finds that these allegations paired with the general allegations found in the rest of the SAC detailing MindGeek’s tools that are
not neutral in nature but rather encourage criminality are sufficient at this stage of the litigation when all reasonable inferences are drawn in favor of Plaintiff.

With respect to the FOSTA beneficiary liability claims, the court says Doe v. Reddit only governs the 230 FOSTA exception, which isn’t applicable because the court rejected Section 230 on other grounds. Thus, the court will accept constructive knowledge arguments regarding the prima facie elements that would otherwise be foreclosed if the FOSTA 230 exception was governing the case.

R.Q.U. v. Meta Platforms, Inc., 2025 Cal. Super. LEXIS 70297 (Cal. Superior Ct. Nov. 5, 2025)

An outgrowth of the state court social media addiction case.

the fact that a design feature like “infinite scroll” led a user to harmful content does not mean that there can be no liability for harm arising from the design feature itself.  Here, there is evidence that the infinite scroll feature itself caused some harm to Moore…Moore has testified that the “endless scroll” feature has caused her to use Defendants’ applications much more than she would have without that feature

Gas Drawls, LLC v. Whaleco, Inc., 2025 U.S. Dist. LEXIS 254999 (C.D. Cal. Dec. 5, 2025)

The plaintiff enforces the IP rights of rapper Daniel Dumile Thompson, better known as MF DOOM. This is a trademark enforcement case. With respect to the state IP claims:

Plaintiff characterizes Temu as an information content provider on the ground that it is “responsible” for the product listings and allegedly alters and advertises them. These conclusory assertions do not plausibly allege that Temu is a content provider for the reasons discussed above—i.e., Plaintiff provides no factual basis to infer that Temu materially contributed to the alleged infringement. Thus, the state-law intellectual property claims, as alleged, are barred under § 230.

Also interesting:

Plaintiff contends that Temu is directly liable because it knowingly offers “MF DOOM” as a search keyword that triggers the display of the infringing listings. But Plaintiff does not explain how Temu “offered” the keyword, and the FAC itself states that Plaintiff’s counsel found the listings by typing “MF DOOM” into the search bar. It is therefore unclear that Temu did anything other than provide a search tool for its platform.

State v. TikTok Inc., 2025 WL 2399525 (N.C. Bus. Ct. Aug. 19, 2025)

The North Carolina AG sued TikTok for addicting minors. The court starts out with a standard anti-230 trope:

when section 230 says not to treat an internet platform “as the publisher or speaker of” others’ content, it means not to burden the platform with traditional publisher liability. The statute’s reach ends there. It does not relieve internet publishers “from all potential liability” or provide “an all purpose get-out-of-jail-free card for businesses that publish user content on the internet.”

TikTok doesn’t qualify for Section 230:

Neither of the State’s theories seeks to hold ByteDance liable for monitoring, altering, or removing user content, or for failing to do those things. The thrust of the unfairness theory is that ByteDance purposely designed TikTok to be addictive to minors. If what the complaint says is true, TikTok is packed with features—autoplay, endless scrolling, social rewards, and more—that exploit minors’ developmental immaturity and neurological susceptibility to intermittent, variable rewards. And TikTok addiction allegedly disrupts healthy sleep habits and social interactions, causing insidious psychological harms to teens and children. This theory has more in common with products liability than publisher liability, resting as it does on an alleged duty not to design and offer a product that endangers a vulnerable population…

It is no answer to say, as ByteDance does, that addicted minors spend their time on TikTok viewing third-party content. ByteDance’s business is, after all, to host and display user videos. Nearly everything it does is connected in some way to its users’ content. But it and other social-media platforms “continue to face the prospect of liability, even for their ‘neutral tools,’ so long as plaintiffs’ claims do not blame them for the content that third parties generate with those tools.” The State’s unfairness theory neither blames ByteDance for its users’ content nor aims to hold it accountable in its capacity as a publisher of that content. The theory instead seeks to hold ByteDance liable “for its own injurious conduct” in “creating and employing tools to addict young users.”…

the State’s unfairness theory treats ByteDance as a product designer, not a publisher, and faults it for offering a combination of features and social rewards that foster compulsive use by minors. Unlike Bride, ByteDance’s liability does not turn on user content or its failure to remove or suppress that content. This sort of anti-addiction claim therefore does not implicate section 230…

Section 230 gives internet platforms wide latitude to moderate content. But it does not shield them from liability for breaching their promises or misrepresenting their content-moderation activities.

Relying on Justice Barrett’s Moody concurrence, the court also rejects the First Amendment defense: “The algorithm does not convey a message by its programmer; it simply bows to user preferences and propensities….a reasonable person would understand TikTok’s video feed to reflect a given user’s content choices as opposed to ByteDance’s own creative expression or editorial judgment.” So much judicial ignorance about how algorithms work!

The court concludes:

If the State’s allegations are true, ByteDance has intentionally addicted millions of children to a product that is known to disrupt cognitive development, to cause anxiety, depression, and sleep deprivation, and (in the worst cases) to exacerbate the risk of self-harm. Federal law does not immunize this conduct, the First Amendment does not bless it, and North Carolina’s laws and courts are not powerless to address it.

Patterson v. United Network for Organ Sharing, 2022 WL 23024110 (D.S.C. March 7, 2022)

A patient sued the organ donor matching network for facilitating a liver match with the wrong blood type. The court rejects the network’s Section 230 defense:

 the Court declines to find that United Network is entitled to blanket immunity under the CDA, as it appears to the Court that United Network’s duties clearly exceed those of an interactive computer service provider as contemplated by the CDA. In other words, accepting all well-pleaded allegations of Plaintiff’s complaint as true, matching Plaintiff with an incompatible donor goes beyond merely hosting a computer service that parties use to post information.

Martin v. Care.com, Inc., 2025 IL App (1st) 250913-U (Ill. Ct. App. December 15, 2025)

Care.com helps families hire in-home caregivers. Care made numerous public statements touting the safety of its caregivers, including doing background checks. However, Care didn’t screen for past incidents of child abuse. After Care’s referral, the plaintiffs retained Dunwoody as a nanny. Allegedly, Dunwoody had a history of child abuse and injured the plaintiffs’ baby. Dunwoody blamed the dad for the baby’s injuries, which had major consequences for the dad. Eventually, the state investigation exonerated the parents. The parents sued Care.com for its promises about screening. The district court dismissed on Section 230 grounds. The appeals court reverses.

With respect to Care’s marketing statements:

The corresponding obligation of Care.com is not to make misleading statements to consumers in the solicitation of business. Complying with this duty certainly cannot be said to require Care.com to moderate what caregivers communicate about their backgrounds through its platform….Care.com’s ability to satisfy its statutory duty under this cause of action stems from the statements Care.com itself chooses to make to consumers on its website. Accordingly, success on this cause of action does not require it to be treated as a publisher or speaker of content posted on its platform by third parties.

The negligent misrepresentation claims reach the same place:

it is Care.com’s own undertaking to have background checks performed on all potential caregivers and to inform customers of this when soliciting their business. Nothing other than a business decision requires Care.com to do this; it could simply allow potential caregivers to use its platform to communicate their background and qualifications to other customers and place the entire burden of conducting background checks on customers. If Care.com had done only the latter, then arguably publisher liability would be the only source of a duty from which liability could be imposed in a negligence claim. However, because Care.com undertook to have background checks performed on all potential caregivers and to make statements to customers about what these background checks entailed, its duty to customers such as the plaintiffs derives from its own actions and statements in this regard. In our view, Care.com’s ability to comply with this duty does not require it to moderate content or communications made by third parties through its Internet platform. Accordingly, success on this claim does not require it to be treated as a publisher or speaker in contravention of section 230(c)(1).

The court distinguishes Doe v. Grindr because

in totality, the statements by Care.com on its website are more specific than the statement at issue in Doe. More importantly, though, we find the statements at issue in this case to refer to Care.com’s own undertaking to ensure that potential caregivers undergo background checks prior to interacting with other customers. When we view these in their light most favorable to the plaintiffs, these statements simply are not about moderating content that is posted to or communicated through an Internet platform. For example, when Care.com states that “[w]e ensure potential account holders are screened and evaluated against our conduct and eligibility standards” by being “background-checked through our CareCheck process,” the court views this as a statement about Care.com’s own undertaking to its customers, which has nothing to do with the actions of a publisher concerning third-party content posted on the Internet.

The court rejects the argument that Section 230 applies if publication of third-party content was a but-for cause.

Sosa v. AT&T, 2025 WL 3719229 (N.D. Cal. Dec. 23, 2025)

“The only conduct Sosa complains of by YouTube is YouTube’s decisions regarding whether to takedown his video, when to put his video back up, and what ranking to give his video. These are ‘quintessential’ publishing decisions giving YouTube immunity to state law tort claims under Section 230.”

Kostov v. Go Daddy LLC, 2025 Ariz. Super. LEXIS 1282 (Ariz. Superior Ct. Oct. 8, 2025)

the Communications Decency Act does bar the majority of this lawsuit. Section 230 of the CDA provides immunity to interactive computer services providers against liability arising from content created by third parties. This includes requests for injunctive relief, such as removal of content.

That immunity applies because (a) Defendants provide or use an interactive computer service, (b) Ms. Kostov’s claims, for the most part, treat Defendants as the publisher or speaker of the information, and (c) the information comes from another content provider. Registering domains and hosting websites fall into the first prong. Ms. Kostov’s request for damages and injunctive relief show that she is treating Defendants as the speaker and/or publisher of the harmful statements. And, as Ms. Kostov’s complaint suggests, Defendants did not create any of the content.

The CDA, therefore, bars nearly all of Ms. Kostov’s claims. That includes defamation, negligence, cyberstalking, cyber-harassment, and injunctive relief.

What it does not clearly bar, however, is the demand for registrant information. That request appears in the recently filed amended complaint. Although Defendants addressed the amendments in their reply, this request was overlooked. Because Defendants have not addressed it, the Court declines to dismiss it.

This Court recognizes the significant difficulties Ms. Kostov has endured with the content and with efforts to have it removed. This Court, however, cannot circumvent established law, even if GoDaddy has process for reporting abuse. This Court’s order does not require GoDaddy, however, to sit idly by.

Doe v. DeLuca, 2025 Vt. Super. LEXIS 700 (Vt. Superior Ct. Dec. 15, 2025)

Doe alleges (1) “YouTube LLC is contributorily liable for the unauthorized commercial use of Plaintiff’s likeness by providing the platform and failing to remove the infringing content after notice”; and (2) “YouTube LLC facilitated the commercial use of Plaintiff’s likeness without Plaintiff’s consent, violating Plaintiff’s right to control the commercial exploitation of their identity.” These allegations treat YouTube wholly as a “publisher” or “speaker” of the videos made and posted by DeLuca. Doe effectively concedes YouTube’s status as an “interactive computer service,” and his allegations do not in any way challenge DeLuca’s status as “another information content provider.” Doe has not alleged that YouTube was “responsible, in whole or in part, for the creation or development of DeLuca’s video….

YouTube’s insertion of advertisements into DeLuca’s video does not remove Section 230 immunity for YouTube. A defendant must do more to meet the “material contribution” test.

Distinguishing Forrest v. Meta, the court adds: “Providing “neutral tools” for DeLuca to post his video does not eliminate Section 230 immunity for YouTube, where it otherwise “did absolutely nothing to encourage the posting of . . . [allegedly actionable] content.”” [insert my oft-repeated objection to the “neutral tools” phrase.]

The court acknowledges 230’s IP exception, but says the publicity rights claim is a privacy statute; and even if it wasn’t, the court would follow the Ninth Circuit’s ccBill decision to preclude state IP claims. This is a surprise move given that most non-Ninth Circuit courts have diverged from the Ninth Circuit on this point.

Despite the Calise case, the court reaches to pre-Calise precedent to find that Section 230 also applies to breach of contract claims:

Doe alleges that: (1) he “reviewed YouTube’s terms of service agreement”; (2) he “submitted a report to YouTube LLC to remove the [DeLuca] video”; (3) “YouTube LLC failed to remove the content”; and (4) “YouTube LLC failed to adhere to its own terms of service when it failed to remove the reported video.” As the cases above make clear, Doe’s allegations, while framed as a breach of contract claim, nevertheless go to the heart of YouTube’s actions as a publisher — Doe complains that YouTube published DeLuca’s videos when it should not have. Calise’s plain language shows that Section 230 applies to this sort of allegation that would “oblige[] the defendant to `monitor third-party content’—or else face liability—then that too is barred by § 230(c)(1).”

Also, “YouTube’s ToS do not create promises which it could have breached in the way that Doe alleges.”

Extra: “a now commonplace occurrence like DeLuca’s recording by cell phone of Doe in public and posting it online without more does not constitute as matter of law the sort of objectively outrageous conduct required for an IIED claim.”

BONUS: Gonzalez v. Viator Tours Inc., 2025 WL 2420943 (D. Mass. Aug. 20, 2025). A woman suffered a slip-and-fall on a third party excursion booked through Viator/TripAdvisor. Instead of relying on Section 230, the court dismisses the case on prima facie grounds:

• “the amended complaint does not plausibly allege that Viator or Tripadvisor were responsible for, or had control over, the operation of the catamaran tour or the placement of the ramp….Viator and Tripadvisor had no duty to take reasonable care in the operation of the Sunfos tour because Gonzalez does not allege that they had a role in, or control over, its operation”
• No duty to warn because no special relationship.
• No negligent selection claim outside of employment/IC relationship. Also, the complaint didn’t allege that “Sunfos was an unsafe or inexperienced catamaran operator” or “why Viator or Tripadvisor knew or should have known Sunfos to have such a reputation.”

UPDATE: Cox v. CoinMarketCap OpCo LLC, 2026 WL 445010 (D. Ariz. Feb. 17, 2026):

Plaintiff sufficiently alleges that CMC is an information content provider. Plaintiff alleges that CMC “artificially suppressed HEX’s value” and “inflat[ed] the price of one or more other cryptocurrencies.” At this juncture, this is sufficient to establish that CMC did more than passively display content created by third parties. However, this argument is not altogether foreclosed. Accordingly, § 230 does not affect the outcome of this Order.

The post A Massive Roundup of Section 230 Decisions 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.

Hoffmann Brothers Heating and Air Conditioning, Inc. v. Hoffmann Air Conditioning & Heating, LLC, 2025 WL 2587109 (8th Cir. Sept. 8, 2025)

The Eighth Circuit revisits the initial interest confusion doctrine after embracing it in 2021. Oh joy.

A family fallout produced two rival businesses: Hoffmann Brothers Heating and Air Conditioning, Inc., and Hoffmann Air Conditioning & Heating, LLC. Incredibly, the jury found no confusion betwen these two entities. The court addresses the post-trial motions:

Customer confusion can occur at various times. One of them is before a sale, what the law calls initial-interest confusion. For us, the theory is of recent vintage, although courts around the country have been applying it for about half a century.

Our variation of the rule, however, is different. When customers are “sophisticated[,] and exercise a relatively high degree of care in making their purchasing decisions,” it is “less likely” that they will experience “initial confusion.” Even if there is reason to question whether our “sophistication exception” should exist, there is no doubt it does. [cite to Select Comfort v. Baxter]…

Since Sensient, we have recognized that initial-interest confusion does “not apply” when customers are sophisticated and exercise a “high degree of care in making their purchasing decisions.”

Better to reject the IIC doctrine when consumers are sophisticated, I guess, but even better would be to reject it always.

Loanstreet Inc. v. Troia, 2025 WL 2530884 (S.D.N.Y. Sept. 3, 2025)

Prior blog post. I previously summarized the case:

Troia was a LoanStreet employee. He was allegedly fired for cause. Troia posted disparaging comments about LoanStreet at Glassdoor.com, Reddit.com, and Teamblind.com. He then worked to boost the posts’ visibility [including buying Google keyword ads]

The court says:

plaintiffs allege the existence of “initial-interest confusion,” in which one party creates initial interest in its competing product, service, or website, “even though no actual sale is finally completed as a result of the confusion.” [1-800 Contacts v. JAND]…In order to sufficiently demonstrate internet-related initial-interest confusion, the Second Circuit also requires a plaintiff to prove intentional deception by the defendant.

In a footnote, the court adds:

Troia also contends that plaintiffs have failed to produce any screenshot or description of their home page that would permit the Court to compare landing pages of plaintiff’s and defendant’s Google ads, to assist the Court in determining whether the Reddit page linked by the Google advertisements bears any resemblance to LoanStreet’s website or brand “look and feel.” This is also irrelevant, as plaintiffs allege only initial interest confusion and do not base their unfair competition claims on Troia’s Reddit posts, only his advertisements.

If you’re a trademark plaintiff and you’re only alleging initial interest confusion, you should question your life choices.

With respect to Troia’s keyword ad buys, the court distinguishes the JAND case:

Troia used LoanStreet’s mark repeatedly: at least once in bold in the heading of the advertisement; sometimes in the body of the advertisement; and in the URL he linked. As an initial matter, plaintiffs assert that the question of whether these advertisements were “clearly labeled” as advertisements is fact-intensive and should be evaluated by the jury. Given defendant’s repeated and verbatim use of the LoanStreet mark, we agree. Despite the fact that defendant’s advertisements contained language critical of LoanStreet, the advertisements clearly displayed plaintiff’s mark, referring in some cases to “LoanStreet Careers” or “LoanStreet Software Engineer.” Moreover, as plaintiffs’ expert noted in his report, “anyone doing a search for LoanStreet’s website would expect that website to appear as the first search result and would be confused by [d]efendant’s ad appearing at the top of the page with the same branded, trademarked name as the company website.”…

I question the expertise of that so-called “expert” who claims that “anyone doing a search for LoanStreet’s website would expect that website to appear as the first search result,” especially given that we’re talking about ads and not organic search results.

The court also drops this jaw-dropper:

although Troia did not offer a competing good or service, he cannot truthfully assert that he did not intend to attract Google users searching for the real LoanStreet when he purchased his Google advertisements….These statements are sufficient to demonstrate that Troia sought to compete with LoanStreet for users within the same market – the internet and, in particular the Google search engine context

This is seriously stupid. Gripers and their targets are not commercially competing against each other. I don’t understand how judges can get so lost in the weeds that they miss this obvious fact. It reminds me of one of my least favorite trademark law cases of this century, the SMJ case from twenty years ago.

The judge also twists the nominative use defense against Troia. Crazy. That sends the case to an expensive jury trial that neither side should want. Then again, the company plaintiff might be OK with the lawfare of grinding its griping former employee into a financial pulp.

Kyjen Co. v. Schedule A Defendants, 2025 WL 2696439 (N.D. Ill. Sept. 22, 2025)

This case involves slow feeder pet bowls. Kyjen, also known as Outward Hound, has a registered trademark in “fun feeder.” Its rival, ThinkPet, included the words “fun feeder” in its Amazon product listings and otherwise calls its products “fun” for the pets. Kyjen sued ThinkPet for trademark infringement. The court rejects ThinkPet’s motion for summary judgment.

To understand this case, you have to revisit the Seventh Circuit’s Promatek v. Equitrac case from 2002, a keyword metatag case that turned on initial interest confusion, even though the Seventh Circuit couldn’t define the doctrine then and still can’t now. I still teach that ancient case in my Internet Law course….but its primary pedagogical payoff is to show my students how everyone involved in the case–the litigants, the lawyers, and the court–all got it embarrassing wrong. As a legal ruling, the case has aged terribly, and it’s incredible that it’s still an acceptable citation in 2025.

Fair Use. The court says “a reasonable juror could find that ThinkPet did not use “Fun Feeder” in good faith for only descriptive purposes.” If the court had stopped there, OK, but the court kept talking:

One way to demonstrate that a defendant is not using a trademarked term merely for a description is if the defendant’s use creates “initial interest confusion.” [Cite to Promatek v. Equitrac.]

What? This makes no sense. IIC adds nothing to the analysis of whether the defendant is using the trademark for descriptive purposes or to confuse consumers.

Following the Promatek “inspiration,” the court says:

Intending to confuse a consumer, even only temporarily, prevents a defendant from claiming the fair use defense because the defendant is using the mark for a purpose other than describing their product.

This might be true if in fact the court has proof of the defendant’s “intent” as distinguished from the defendant’s desire to engage in standard marketing, i.e., using the word “fun” to describe its “feeder” product (an outcome that the descriptive fair use doctrine fully permits). But if a court is citing Promatek in 2025, it’s going to make circumstantial inferences about the defendant’s “intent” to confuse consumers, thus bootstrapping plaintiffs from needing to show the requisite evidence.

The court continues:

Initial interest confusion is particularly relevant in the online space, as here.

FTFY: “Initial interest confusion is never relevant, in the online space or off.”

The court gets to its doctrinal payoff:

The facts in the instant case parallel Promatek. Kyjen alleges ThinkPet added “Fun Feeder” to its Amazon listings to increase its products’ visibility and, therefore, intended to benefit from Kyjen’s goodwill through initial interest confusion. Just as Equitrac could violate the Lanham Act by using the metatags to cause initial customer confusion and profit off the plaintiff’s goods will, ThinkPet could violate the Lanham Act by using Kyjen’s trademark for SEO that increased its visibility and benefit off Kyjen’s goodwill. If true, ThinkPet would be using “Fun Feeder” for non-descriptive purposes and could not rely on the fair use defense.

Cue the sad trombone whomp-whomp. I mean…what? Some of the obvious problems with the court’s discourse:

• The keyword metatags at issue in the Promatek case weren’t visible to consumers at all, unlike Amazon product descriptions.
• Trademark law may distinguish between Google search engine indexing and internal search listings in Amazon–see MTM v. Amazon.
• Being indexed in Google for a third-party trademark is in fact usually entirely permissible under trademark law.
• The initial interest confusion doctrine adds nothing to this equation–if the “fun feeder” reference didn’t qualify as descriptive fair use, then this is just a standard trademark infringement case.
• I question if ThinkPet was using the term “as a mark.” The court later addresses this issue by saying the jury could determine that the fun feeder term was “used to gain visibility off of Kyjen’s goodwill.”

In other words, this ruling is messed up on pretty much every dimension. Terrible.

The court says that the court can infer that the “fun feeder” mark is strong based on Kyjen’s high prominence in search results (sadly, no citation to Lisa Larrimore Ouellette’s paper):

Outward Hound appears in search results for “fun feeder bowl” across various search engines. On Google, it appears as the first sponsored product and its products are referenced in the second through seventh search results. On Bing, Outward Hound is the first search result. Finally, on Amazon, Kyjen products are the first two non-sponsored results

Um…saying a mark is strong because of prominent placement in SPONSORED listings…seriously? I guess trademark owners can truly buy their way to the top.

The Likelihood of Consumer Confusion Test

The court turns to the multi-factor consumer confusion test. With respect to purchaser care, the court says:

In Promatek, the Seventh Circuit found that lack of care exercised by consumers was the most important factor in an initial interest confusion case because the consumer’s lack of care leads to the initial interest confusion. Therefore, the fact that a reasonable jury may find consumers exercise a low degree of care in selecting dog bowls is particularly relevant.

Contrast the Lerner & Rowe case, where the court said that if consumers care enough to search by brand name, they will be careful about evaluating the results.

With respect to evidence of actual confusion, the court says per Promatek “a showing of actual confusion was not required for the court to find a likelihood of success on the merits in an initial interest confusion case.” In other word, pleading IIC is a cheat code for plaintiffs to win more factors in the multi-factor likelihood of consumer confusion test.

This is a bad ruling, but we can extend the blame to the antiquated and wrong-headed Promatek case. #OverturnPromatek.

BONUS: Keeper Security, Inc. v. Keeper Tax Inc., 2025 WL 3268304 (N.D. Ill. Nov. 24, 2025)

a reasonable jury could have found that consumers would exercise a relatively low degree of care initially. However, given the nature of the trial period and sensitive information that would be shared during use, a reasonable jury could have also found that the amount of care exercised by a consumer would increase over time, after a consumer had already completed the initial download. Thus, the Court agrees that the evidence in this case regarding the degree of care likely to be exercised by consumers was sufficient to support initial interest confusion in theory. To that extent only, a reasonable jury could have leaned towards Plaintiff on the degree of care factor.

The post The Initial Interest Confusion Doctrine Refuses to Die appeared first on Technology & Marketing Law Blog.

(click for the animation)

This is a merchandise “counterfeiting” case. In a prior ruling in this case, a “jury determined that Defendants had willfully violated Penn State’s trademark and awarded Penn State $28,000 in compensatory damages.” The defendants challenged the jury results, including Penn State’s references to initial interest confusion when it wasn’t part of their legal theory. In response, the judge issues a confusing throwback opinion where it becomes clear that initial interest confusion is better thought of as a vibe rather than as a credible legal doctrine.

What does the term “initial interest confusion” even mean? I don’t have a good answer to that question, and this court doesn’t either:

The Court rejects Defendants’ argument that…initial-interest confusion in particular requires intentional deception. Rather, within the Third Circuit, Penn State is correct that the various types of confusion are not separate claims but, rather, merely separate ways of demonstrating confusion and are all analyzed “within the context of the relevant Lapp factors.”

If the court’s position is that initial interest confusion doesn’t provide a bypass to the standard likelihood-of-consumer-confusion factors, but rather an analytical tool that supports the multi-factor analysis, exactly what do the IIC principles add to that multi-factor analysis?

The court continues:

the Third Circuit has previously examined evidence related initial interest confusion and, in conducting that analysis, has treated an intent to deceive as relevant to the confusion inquiry, but not dispositive or required.

Intent to deceive is an express factor in the Lapp test (#5: “the intent of the defendant in adopting the mark”). IIC could provide evidence to support (or, in theory, refute) the fifth Lapp factor. Or–hear me out–whatever facts purportedly support the IIC assertion could be cited as evidence of this fifth factor directly, without referencing the IIC term at all. As usual, the IIC doctrine adds nothing to this analysis.

The court continues:

As to initial interest confusion, both parties note that one witness performed a Google search that brought up Vintage Brand products alongside officially licensed products, and that the witness did not see any indication that Vintage Brand was not an authorized retailer of Penn State merchandise. Certainly, this evidence is neither overwhelming nor particularly strong. But this evidence is sufficient, when viewed most favorably to Penn State, to support a jury determination that these results were confusing.

Oh my gosh, I can’t believe we’re still doing this. I argued we should disregard purported consumer confusion about search results back in…2005. For a fun (?) trip down memory lane, read my 90 page discourse on why it’s stupid to treat consumer confusion about search results as relevant to the legal inquiry into the likelihood of consumer confusion about the source of goods and services in the marketplace. It’s 2025 FFS–have we learned nothing about this topic in the past 20 years?

Distinguishing the very old Tabari v. Toyota case (a domain name case! from 2010! by Judge Kozinski, who resigned from the bench under a dark cloud eight years ago), the court says:

there is evidence that even a wary consumer without any expectations of the website that they visited would have been confused by the search results presented—and that such confusion would not have been dispelled by Vintage Brand’s website. For example, Penn State’s expert testified that there were high levels of confusion associated with Vintage Brand’s website (or at least excised portions of the website) and “a substantial risk that people will think that Penn State has either made, sponsored, is affiliated with, or is approving of the — of the merchandise that Vintage Brands [sic] is selling.” Similarly, Defendants’ expert testified to high levels of gross confusion, although the net confusion numbers were significantly lower. Finally, deposition testimony was played for the jury wherein a witness for Penn State asserted that she believed, based on Vintage Brand’s website, that it was authorized to use Penn State trademarks on its products

If the confusion is being caused by the complained-about website after a consumer clicks on a search result, what does the IIC doctrine have to do with any of this analysis? It seems like the court opinion could have been written identically without ever using the term “initial interest confusion.”

The judge ends the opinion with an invitation to the Third Circuit to fix various doctrinal problems on appeal. That sounds like a good idea. Let’s start by emphatically putting an end to the IIC nonsense.

Case Citation: Pennsylvania State University v. Vintage Brand LLC, 2025 WL 3048996 (M.D. Penn. Oct. 31, 2025). The GovInfo page.

The post ‘Initial Interest Confusion’ Is More of a Vibe Than a Credible Legal Doctrine–Penn State v. Vintage Brand appeared first on Technology & Marketing Law Blog.

This court is bound by the unfortunate Adler decision from the Fifth Circuit, which venerated the initial interest confusion doctrine to salvage an otherwise obviously unmeritorious keyword advertising case.

To support their bogus initial interest confusion claims, the trademark owner points to: (1) the visual similarity between the gates (the court describes Aborder’s offerings as “knockoffs”) and (2) the similarity of the photos in the product listings. What does any of this have to do with initial interest confusion??

Nothing. The court is unimpressed:

Regalo does not allege that Aborder’s purchased keyword ads are unlabeled or that, upon clicking on the advertisement, customers are linked to deceptively generic purchase pages. To the contrary, Regalo alleges, regarding these ads that, “[m]any times, it is not immediately obvious from the sponsored ad who is selling the advertised product[,]” and that “[w]hen customers ‘click’ or select a sponsored ad, they are taken to the advertised product’s detail page.” Put another way, when a customer clicks on the advertisement, they are directed to the product page for Aborder’s advertised products—Regalo’s general statements that “many times” the sponsored ads do not immediately make clear who the seller is does not allege that in the specific ads purchased by Aborder are unlabeled or misleading.

Trademark claims dismissed. In other words, despite the Adler decision’s reliance on initial interest confusion to prop up bogus keyword ad cases, the court decided it had seen enough to clean out the stupid initial interest confusion claims.

Case Citation: Regalo International LLC v. Aborder Products Inc., 2025 WL 2483167 (N.D. Tex. August 28, 2025).

UPDATE: Hoffmann Brothers Heating and Air Conditioning, Inc. v. Hoffmann Air Conditioning & Heating, LLC, 154 F.4th 953 (8th Cir. Sept. 8, 2025): “we have recognized that initial–interest confusion does “not apply” when customers are sophisticated and exercise a “high degree of care in making their purchasing decisions.”

More Posts About Keyword Advertising

* 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 Court Rejects Initial Interest Confusion Claims for Competitive Keyword Ads–Regalo v. Aborder appeared first on Technology & Marketing Law Blog.

The court previously denied Google’s motion to dismiss–a head-scratching and troubling ruling. Now, after three additional years of pointless litigation, on summary judgment, the court easily dismisses Yost’s lawsuit in a short opinion.

[Note: SRP = search results page.]

First, Google Search doesn’t “carriage” anything:

Google Search plainly does not transport people. And the evidence shows it does not transport products for others.

Assuming arguendo a search result constitutes property or a product, Google Search creates its own product when it responds to a user’s inquiry. That “product” is a SRP, which is compiled anew by Google Search for each user from information that Google has mined, organized, and developed….

Moving people or the product of others is the sine qua non of a common carrier….

The State of Ohio argues Google Search carries information for others. But that carriage is done by an ISP, not Google Search—a fact the State concedes. A user’s query arrives at Google Search via an ISP, and once Google Search creates a SRP, it relays that SRP to an ISP and the ISP then delivers the SRP to the user. It is undisputed that, without an ISP, Google Search could not deliver any search results in response to a user’s inquiry.

(For telecom geeks, this is just a redux of the telecom stack analogy. Lower levels of the stack “move” data for higher levels, which is why the lower levels could possibly be common carriers and the higher levels are the ones being carried).

Second, Google Search doesn’t serve searchers indifferently:

Google exercises judgments about crawling, indexing, and ranking webpages. It does not guarantee that all or certain webpages will be crawled. When a user makes a query, Google creates and returnsaunique SRP. What that SRP looks like and what its contents are depend on a range of factors. These are factors Google controls and balances.

The State of Ohio argues that the relevant inquiry is not whether Google makes individualized decisions when it returns a SRP, but rather that it returns a SRP to any member of the public who makes a query. But Google does not hold itself out as carrying indifferently. Rather, Google proclaims it differentiates in what it delivers search results….

Google at each stage of the process selects what information users will and will not see. Google crawls the web, indexes webpages, and then selects which results to include in a SRP. So even if Google were transporting a product of “information,” that product would be one Google itself has designed.

This conclusion is so simple and obvious…you could have asked an 8 year old whether a search engine carries anything and gotten a better explanation than Yost’s arguments. This lawsuit was a complete waste of everyone’s time and the taxpayer’s money, driven by bogus assumptions and designed to air grievance politics. And yet, of course Yost will appeal this decision; and his misuse of his enforcement discretion, with the goal of disserving his constituents, won’t hurt him in any future elections. Peak Ohio.

[For more on how whacked Ohio is, including some unflattering comments about Yost, read David Pepper’s Laboratories of Autocracy book.]

This opinion doesn’t address the First Amendment problems with Yost’s common carriage argument–no need given how the case convincingly failed on other grounds–even though the judge wasn’t persuaded on the motion to dismiss despite its obvious applicability.

Just in case you’re wondering, the judge issuing this opinion previously was the Republican Party chair for his county, i.e., probably not a woke lib. This is the same judge who bent over backwards to treat Yost’s arguments as credible on the motion to dismiss ruling.

While this particular censorship effort has failed this time, no doubt that partisan censors are hatching new plans to control keyword searches, Generative AI, and every other information source that might hold them accountable or challenge their power.

Case Citation: State ex rel Yost v. Google LLC, Case No. 21-CV-1-06-0274 (Ohio Ct. Common Pleas August 15, 2025).

Prior Blog Posts on Common Carriage

• Court Blows Up Gmail’s Section 230 Protection, But Allegations of Biased Spam Filtering Still Fail–Republican National Committee v. Google
• Statement on the Supreme Court’s Ruling in Moody v. NetChoice
• Section 230 Protects Gmail’s Spam Filter–RNC v. Google
• Is Google’s Search Engine a “Common Carrier”? (Seriously???)–Ohio ex rel Yost v. Google
• Big Ruling for Free Speech: Most of Florida’s Social Media Censorship Law (SB 7072) Remains Enjoined–NetChoice v. Attorney General
• Texas and Its Amici Try to Justify Censorship in Their NetChoice v. Paxton Fifth Circuit Briefs
• Court Enjoins Texas’ Attempt to Censor Social Media, and the Opinion Is a Major Development in Internet Law–NetChoice v. Paxton
• Anti-Zionist Loses Lawsuit Over Social Media Account Suspensions–Martillo v. Facebook
• Texas Enacts Social Media Censorship Law to Benefit Anti-Vaxxers & Spammers
• 31 Bogus Passages from Florida’s Defense of Its Censorship Law–NetChoice v. Moody
• Florida Hits a New Censorial Low in Internet Regulation (Comments on SB 7072)
• Deconstructing Justice Thomas’ Pro-Censorship Statement in Knight First Amendment v. Trump
• Facebook Defeats Lawsuit Over Alleged ‘Shadowbanning’–De Souza Millan v. Facebook
• Are Social Media Services “State Actors” or “Common Carriers”?

The post Google Search Isn’t a “Common Carrier” (DUH)–Ohio v. Google appeared first on Technology & Marketing Law Blog.

Defendant’s agents do not label or indicate that their generic ads direct a customer to Defendant and other competitors who pay for the websites to send them consumer leads. The advertised websites prevent consumers from linking to Plaintiff’s websites and obtaining Plaintiff’s VSCs….Consumers are deceived into believing they are learning about, providing personal information for, and ultimately obtaining quotes for Plaintiff’s VSCs.

Trademark Infringement

Since the 8th Circuit revitalized the initial interest confusion doctrine in 2021 , it rides to the plaintiff’s rescue here.

The court has no idea how to define IIC. Check out this confused statement:

[IIC] occurs when “an alleged infringer uses a competitor’s mark to direct consumer attention to its product.” Lerner & Rowe PC v. Brown Engstrand & Shely, LLC, 119 F.4th 711, 718 (9th Cir. 2024). The confusion creates initial consumer interest “even though no actual sale is completed as a result of the confusion.” Jim S. Adler, P.C. v. McNeil Consultants, LLC, 10 F.4th 422, 427 (5th Cir. 2021) (internal quotations omitted). Initial interest confusion is a “bait and switch” approach that allows “a competitor to get its foot in the door by confusing consumers.” Dorr-Oliver, Inc. v. Fluid-Quip, Inc., 94 F.3d 376, 382 (7th Cir. 1996)….

The Eighth Circuit held that initial-interest confusion only occurs when a jury question exists as to the issue of consumer sophistication. Thus, if consumers are sophisticated, such as professional purchasers, initial interest confusion is not possible. However, having relatively recently adopted the initial interest confusion theory, the Eighth Circuit has not yet addressed a situation such as the one in this case concerning the purchase of a plaintiff’s trademarks for advertising with an internet search engine.

Nevertheless, the court says the plaintiff’s allegations are good enough:

It is plausible, based on Plaintiff’s allegations, that a consumer searching for the term “CarShield” and shown advertisements for carwarrantyoffers.com, goautowarranty.com, consumeraffairs.com, or forbes.com would believe those websites offered CarShield’s VSCs. The advertisements included in Plaintiff’s amended complaint use generic text and are not clearly labeled as belonging to Defendant, a competitor

(Note: the Network Automation case said that the ads need to be labeled as ads, not that they needed to be labeled as belonging to the defendant).

At this stage of the litigation, when courts have repeatedly stated the likelihood of confusion is usually a fact determination reserved for summary judgment, the Court finds Plaintiff has plausibly alleged Defendant infringed Plaintiff’s trademarks through initial interest confusion.

The court cites the Warby Parker and Lerner & Rowe opinions but clearly didn’t engage with the standards they articulated, which would have instantly doomed this case.

Secondary Trademark Infringement

The court dismisses the secondary trademark infringement claims. The complaint doesn’t sufficiently allege an agency relationship with the ad buyers, or for that matter, who the purported agents are.

The court also says the plaintiff didn’t allege intentional inducement:

Hiring an agent to purchase keywords on internet search engines is not enough to establish trademark infringement; therefore, it is also not enough to establish contributory liability for trademark infringement. [cite to the Warby Parker decision]

Um…I think I’m missing something fundamental. The court just denied the motion to dismiss the direct trademark infringement due to IIC, yet the court seems to say that competitive keyword advertising categorically isn’t direct trademark infringement. I believe only one of these propositions can be true.

So I don’t really understand what happened here or why the court dismissed the case in entirely, with leave to amend. Call me confused. Perhaps the court will shut this case down for good in the next round.

Case Citation: NRRM, LLC v. American Dream Auto Protect, Inc., 2025 WL 2106971 (E.D. Mo. July 28, 2025)

More Posts About Keyword Advertising

* 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 Lawsuits Over Competitive Keyword Advertising Are Still Stupid–NRRM v. American Dream Auto Protect appeared first on Technology & Marketing Law Blog.