Trademark Archives - Technology & Marketing Law Blog

What Does a Hologram Trademark Signify When the Hologram Isn’t There?–Upper Deck v. Pixels

Eric Goldman — Mon, 23 Mar 2026 15:03:02 +0000

Pixels is a print-on-demand vendor. Pixels’ users have uploaded various images associated with Michael Jordan sports trading cards. Here’s an example:

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

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

Trademark Dilution

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

Trademark Infringement

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

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

False Advertising

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

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

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

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

Publicity Rights

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

First Amendment Defense

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

Section 230

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

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

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

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

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

* * *

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

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

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

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Another Reminder: Lawsuits Over Competitive Keyword Ads Are Stupid

Eric Goldman — Sun, 15 Mar 2026 15:36:36 +0000

This case involves two competitors that buy homes for cash: plaintiff Brothers Buy Homes and defendant John Buys Bay Area Homes. The defendant bought competitive keyword ads. Initially, the defendant displayed the plaintiff’s trademark in the ads, apparently due to the keyword insertion feature (see screenshot). The defendant turned off the keyword insertion feature after getting a demand letter.

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

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A “But They’re ‘Counterfeiters’!” Argument Doesn’t Clinch a SAD Scheme TRO–Emojico v. Schedule A Defendants

Eric Goldman — Fri, 06 Mar 2026 16:08:41 +0000

I blog SAD Scheme cases when they catch my attention, not necessarily because they are the most consequential ones. I’m blogging this one mostly out of schadenfreude. Emojico–the company that has been menacing legtimate users of the word “emoji” for years and inspired my efforts to review the SAD Scheme in the first place–lost an unopposed ex parte TRO request. Whoops.

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

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

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

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

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

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

Prior Blog Posts on the SAD Scheme

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A SAD Scheme Plaintiff Unsuccessfully Plays an IP Privilege Card–Price v. Schedule A Defendants

Eric Goldman — Mon, 23 Feb 2026 15:57:00 +0000

All SAD Scheme cases are, by definition, sad. This case achieves even greater depths: it’s Flori-dumb level SAD.

* * *

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

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

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

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

The court summarizes its conclusions:

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

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

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

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

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

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

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

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

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

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

Prior Blog Posts on the SAD Scheme

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New Article Alert: “SAD Scheme Standing Orders”

Eric Goldman — Thu, 19 Feb 2026 15:57:53 +0000

I have posted a new essay entitled “SAD Scheme Standing Orders,” forthcoming later this year in the Chicago-Kent Law Review.

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

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

The essay abstract:

The SAD Scheme is an abusive form of intellectual property enforcement that has quietly emerged as a significant part of current intellectual property practice. In response, a number of judges have recently adopted standing orders to regulate SAD Scheme practice in their courtrooms. This essay takes a snapshot of these standing orders and considers their appropriateness. It’s encouraging to see judges take steps to curb the SAD Scheme, but such efforts should embody the best practices of due process.

Note: The essay draft includes the Paul McCartney meme. I’m curious if the student editors will let it be or say that I have to hide the meme away.

Prior Blog Posts on the SAD Scheme

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How Does the Initial Interest Confusion Doctrine Improve Trademark Analyses?–Dassault v. Childress

Eric Goldman — Wed, 11 Feb 2026 17:10:55 +0000

These parties have been fighting with each other since at least 2009. This case had a trial in 2017 and ruled for the defense. In 2020, the Sixth Circuit remanded the case for a new trial, which occurred in March 2024. The 2024 jury ruled for the trademark owner on the prima facie case and for the defense on trademark fair use, giving the win to the defense. The judge overturned the jury’s conclusion on trademark fair use, handing the win to the plaintiff. I smell another appeal coming. The court now follows up the plaintiff win with a permanent injunction.

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.

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Greer Burns Law Firm Sanctioned for “Willfully Abusive” and “Egregious” SAD Scheme Judge-Shopping

Eric Goldman — Fri, 16 Jan 2026 19:31:13 +0000

Currently, the Northern District of Illinois judges do not apply consistent standards for SAD Scheme joinder. Some judges still permit the joinder of dozens or hundreds of seemingly unrelated defendants in a single case; other judges essentially make SAD Scheme joinder impossible. When SAD Scheme plaintiffs file their complaints, they don’t know in advance how the randomly assigned judge will respond to naming a cornucopia of unrelated defendants.

The plaintiffs’ short-term solution has been to start with the whole enchilada of defendants and, if the assigned judge will scrutinize joinder, immediately voluntarily dismiss all but one of the defendants. I’ll call this the “spray-and-pray” approach to naming SAD Scheme defendants.

Then, after narrowing the initial complaint to one defendant, the plaintiff can resue the voluntarily dropped defendants in a new bulk lawsuit. I’ll call this the “serial spray-and-pray” approach (SSP for short?). Depending on what disclosures the plaintiff makes about the dropped-and-resued defendants and how courts handle assignments of related cases, the sequential complaint may go back into the random judicial assignment process. With luck, the plaintiff will draw a new judge who’s more permissive about joinder and the plaintiff can proceed with an old-school SAD Scheme.

This week, Judge Blakey called out the Greer Burns & Crain law firm for serial spraying-and-praying. He summarizes: “In this case, Plaintiff has attempted to join defendants it has already thrice conceded (twice before Judge Alexakis and once before Judge Chang) may not properly be joined in one suit.”

Judge Blakey treats serial spraying-and-praying as impermissible judge-shopping (emphasis added):

repeatedly naming the exact same group or subgroup of defendants in new cases until a case is assigned to a judge the Plaintiff believes to be hospitable to Plaintiff’s own theory of joinder constitutes a willful abuse of the judicial process. If Plaintiff had a good faith factual and legal basis to join these defendants, it could have pressed its position in any of the prior cases before the assigned judge (and appealed in due course if appropriate), but it declined to do so. Instead, when challenged, Plaintiff cut and ran, then filed new suit, seeking to join the same parties based upon the same allegations. That strategy not only constitutes an egregious form of forum shopping, it also consumes scarce judicial resources, as Plaintiff asks judge after judge to make the same exact determination, hoping for a more favorable outcome.

Harsh words. So how did Judge Blakey punish Greer Burns for its willful abuse and egregious forum-shopping that wasted the time of multiple judges? He dismissed the lawsuit with prejudice and….

…and that’s it. If you were expecting more punishment, then you haven’t been paying close attention to the consistently anemic consequences that judges impose for bogus and abusive SAD Scheme practices. With virtually no real downsides to serial spraying-and-praying, what are the odds that this “sanction” will prompt Greer Burns or other law firms to improve their practices?

At minimum, I think every time a judge calls out lawyers for a “willful abuse of the judicial process,” a referral to the state bar should follow as a matter of course. There needs to be some real accountability somewhere.

Case Citation: Marshall Amplification PLC v. Xingrunshangmao, 1:25-cv-13829 (N.D. Ill. Jan. 12, 2026)

Prior Blog Posts on the SAD Scheme

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A Massive Roundup of Section 230 Decisions

Eric Goldman — Fri, 02 Jan 2026 19:11:19 +0000

This post also owes its origins to my 2-week trip to China in June. Section 230 decisions started backing up while I was on the trip and never stopped accruing. In total, this post covers about 30 decisions in 7k+ words. Whew! Some of these decisions are real stinkers, too.

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.”

In re Apple Inc. App Store Simulated Casino-Style Games Litigation, 2025 WL 2782591 (N.D. Cal. Sept. 30, 2025)

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)

On the merits, Defendants are mostly correct: 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. Rigby v. GoDaddy Inc., 59 F.4th 998, 1007 (9th Cir. 2003). " data-highlevelcontenttype="urn:hlct:5">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.

Schedule A: Ten Notable Developments in 2025 (Guest Blog Post)

Eric Goldman — Mon, 29 Dec 2025 16:13:55 +0000

By Sarah Fackrell, Professor of Law at Chicago-Kent College of Law

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

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

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

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

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

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

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

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

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

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

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

8. Corsearch enters the game

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

7. Geographic expansion

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

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

6. What’s going on in Pittsburgh?

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

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

5. The plaintiffs’ bar plays defense

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

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

4. Judge-shopping in the NDIL

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

3. Rule 11

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Looking ahead:

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

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

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

* * *

Prior Blog Posts on the SAD Scheme

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

Post-Mortem of a Misguided Logo Trademark Lawsuit–LegalForce v. Internet Brands

Eric Goldman — Sat, 20 Dec 2025 18:52:50 +0000

The plaintiff in this case is LegalForce, Raj Abhyanker CEO, which run the notorious trademark registration operation Trademarkia. How notorious? Trademarkia’s own web site has a page entitled “Is Trademarkia a Scam? Debunking Hearsay,” which brings to mind the old adage (commonly attributed to Ronald Reagan) that if you’re explaining, you’re losing.

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)

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