Citing the following evidence, the court says X hasn’t abandoned the TWITTER marks:

X Corp.’ s current listing of the X app on the Apple App Store from which users can learn about the X platform and download the platform’s app to their phones [says] “Welcome to X (formerly known as Twitter), your trusted digital town square where conversations unfold in real time, and the world connects through breaking news, live events, podcasts, and everything in between.”…The listing therefore constitutes evidence of bona fide use of the Twitter-formative marks.

The court cites several cases endorsing “formerly known as” references as ongoing trademark use. The court explains:

the parenthetical identifies and distinguishes X Corp.’s platform as the Twitter platform X Corp. acquired from Twitter, Inc. and is rebranding as X. By virtue of the parenthetical, the listing is telling customers that what they knew as Twitter is now X and can be accessed by downloading the X app from the Apple App Store.

The court is right that X is using TWITTER to distinguish itself from its competitors, in the sense that consumers can identify and engage with X based on any residual goodwill they have towards Twitter. (At this point I’m still amaze any residual goodwill still exists towards X/Twitter. It’s all badwill to me). At the same time, X has made it emphatically clear that it does not intend to promote the TWITTER mark in the future other than to capture that residual goodwill. I could easily have seen the court reaching the opposite conclusion that the “formerly known as” reference isn’t actually trademark usage, at least when Musk has so publicly and prominently repudiated the mark.

I’d analogize the “formerly known as” references to a corporate webpage recounting a company’s past names. Telling the company’s history shouldn’t act as trademark usage of those legacy brands. If a corporate webpage can simpy mention deprecated brand names and thereby prevent abandonment of those marks, then the abandonment doctrine doesn’t exist any more.

In contrast, the court says the TWEET trademark and the Bird Logo are likely abandoned based on the following evidence:

• “neither the Tweet mark nor the Bird logo appears in X Corp.’ s listing of the X app on the Apple App Store.”
• “X Corp. conceded (eventually) at the April hearing that the Tweet mark and Bird logo are nowhere to be found on x.com’s home page.”
• Some of X’s evidence was defective, such as referencing only TWITTER and not the other marks or lacking dates, which suggest they are legacy usages before Musk’s rebrand. (The court says some social media “account postings are a relic of the past”).

The court summarizes: “Musk’s pronouncements and X Corp.’s rebranding of the Twitter platform as X provide compelling evidence that X Corp. harbors an intent not to resume use of the Tweet mark and Bird logo.”

The court ruled on a preliminary injunction request, so it’s not the final word on the merits. Still, it seems highly likely that the TWEET term and the bird logo have been freed from X’s trademark clutches. If so, it’s nice to get some cultural assets back into the public domain (at least, until Project Bluebird tries to repropertize them) so we can tweet all we want and associate ourselves with the bird logo as we see fit. As for the TWITTER mark, X’s ongoing supervision of that mark seems dubious (consistent with Musk’s literal blowtorching of it). I’m guessing that mark will also enter the public domain soon enough, even if it should be there already.

Case Citation: X Corp. v. Project Bluebird Inc., 2026 WL 2606728 (D. Del. Sept. 3, 2026)

The post TWEET and the Bird Logo Apparently Enter the Public Domain, But X Maintains Its Grip on the TWITTER Mark (For Now)–X v. Project Bluebird appeared first on Technology & Marketing Law Blog.

In this case, “JDPI argues that the Bad Spaniels toy dilutes its marks ‘by associating the famed whiskey with,’ as the Supreme Court put it, ‘dog excrement.'” However, “as JDPI concedes, the ‘Bad Spaniels’ mark ‘does not itself refer to defecation’ and therefore is not facially tarnishing.”

On remand from the Supreme Court, the Ninth Circuit concluded again that the Bad Spaniels dog toy does not dilute Jack Daniel’s trademark.

The panel defines the scope of dilution by tarnishment: “when conducting a tarnishment analysis, courts may only consider the dilutive effect of a junior mark that is similar to a corresponding famous mark.” This simple principle filters out a lot of Jack Daniel’s arguments:

The only marks JDPI proved famous are “Jack Daniel’s” and its registered trade dress. All other senior marks, including “Old No. 7,” therefore drop out of our analysis….

“Old No. 7” cannot be famous under the TDRA simply because “Jack Daniel’s” is.

For example, Jack Daniel’s objects to Bad Spaniels’ “43% poo by volume,” but Jack Daniel’s use of “40% alc. by vol. (80 proof)” isn’t a trademark at all. The panel’s methodology essentially isolates each parodic element rather than look at the combined effect of the Bad Spaniels’ toy.

Furthermore, “neither ‘Bad Spaniels’ nor the toy’s trade dress facially tarnish JDPI’s corresponding famous marks.” (The court doesn’t define “facial tarnishment” but suggests it occurs when the tarnishing attribute is included in the brand usage). Without that, the court looks to see if tarnishment can be inferred another way. The court suggests:

In some circumstances, an association may dilute the famous mark even where the junior mark is not tarnishing on its face. If a junior mark is not facially tarnishing, the context in which it is used may become relevant to the tarnishment analysis, depending on the facts of the case. For example, using a famous mark or a closely related depiction on a product that is of poor quality or pornographic or illegal may be tarnishing if the other requisites are met.

To bolster its claim, Jack Daniel’s introduced a survey from Dr. Itamar Simonson, which the panel deconstructs. The survey covered aspects that weren’t famous, like “Old No. 2,” and the survey only showed a possible negative connection “between some broad concept of defecation and consumption of food and drink products,” not the specific marks at issue here. The panel concludes:

There is no evidence in the record from which a court could reasonably infer that scatological references made on a dog toy have the same likelihood of generating disgust as identical references on a consumable product meant for humans might. Dr. Simonson’s opinion to the contrary is pure conjecture.

The Supreme Court foreclosed the statutory parody defense in this case, but the panel says that Bad Spaniels’ parodic nature can nevertheless affect the likelihood of tarnishment, and this further undermines Dr. Simonson’s survey:

Dr. Simonson’s analysis ignored the effect of a “humorous difference” on whether Bad Spaniels harms the reputation of JDPI’s famous marks…Parody, however, is inherent in the Bad Spaniels product—indeed, as Dr. Simonson recognized, it was the “whole point.” Failing to consider the effect of VIP’s obvious parody on the likelihood of tarnishment was a critical misstep

The Ninth Circuit dismisses the case.

Implications

• Given the amount of time and money Jack Daniel’s has already spent on this case, I assume it’s headed to the Supreme Court again? However, it would be wild if the Supreme Court decides to take it.
• I’m not clear what constitutes facial tarnishment. It seems like Bad Spaniels was a good wording choice, but would Pooping Spaniels have been a bad choice? Is Enjoy Cocaine facially tarnishing or not?
• The panel glosses over dilution of the trade dress. That might be because of how Jack Daniel’s structured its argument or the scope of Dr. Simonson’s survey. Still, trade dress dilution would have benefited from more explication separate from the word mark.
• The purported flaws in Dr. Simonson’s survey seem easy enough to fix. A couple more questions on the consumer survey could connect the dots concretely between the marks, rather than the more abstract connections between poop and food.
• Even so, the panel’s methodologies will make it very hard for trademark owners to prevail against parodic products. The panel: deconstructed the parody and filtered out the aspects that weren’t within the famous trademark’s scope; required the trademark owner to show how the remaining attributes created a likelihood of dilution; and considered the attempted jokes as part of that likelihood assessment. If this remains the standard, trademark owners face an uphill challenge in future cases.
• It is mind-blowing how much money Jack Daniel’s has spent on this case. It only makes sense if Jack Daniel’s is trying to intimidate future parodists, because the dollar value and consumer exposure of Bad Spaniels has to be trivial absent Jack Daniel’s decade-long litigation to squash it.

Case Citation: VIP Products LLC v. U.S., No. 25-2027 (9th Cir. August 4, 2026)

Prior Blog Posts in this Case

• Resolving Conflicts Between Trademark and Free Speech Rights After Jack Daniel’s v. VIP Products (Guest Blog Post)
• The First Amendment Limits Trademark Rights, But How?–Jack Daniel’s v. Bad Spaniels (Guest Blog Post)
• Ninth Circuit Rallies in Defense of a Parody Dog Toy–Bad Spaniels v. Jack Daniel’s

The post It’s Hard for Parodic Products to Tarnish Famous Trademarks–Bad Spaniels v. Jack Daniel’s appeared first on Technology & Marketing Law Blog.

Is “Battery Tender” Generic?

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

Keyword Advertising

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

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

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

Trademark Usage in Amazon Ad Text

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

Usage in Amazon Product Description Text

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

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

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

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

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

The court summarizes:

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

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

Other Marketing References

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

Injunction

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

Implications

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

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

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

Emoji Discussion!

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

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

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

There are a couple of problems here:

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

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

* * *

More Posts About Keyword Advertising

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

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

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

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

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

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

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

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

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

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

The plaintiffs unsuccessfully tried the defective design workaround:

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

A Roommates.com workaround didn’t work either:

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

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

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

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

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

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

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

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

This is a jawboning case:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Related ruling.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Note: I checked her LinkedIn page and she didn’t indicate that she has a law degree or is licensed to practice as a lawyer. Legal training or a law license isn’t required to engage in legal theorizing, but it raises some questions about what “legal strategy services” she can offer and what evidentiary privileges apply to any conversations with her actual or prospective clients.

Katherine Starr also appears to be quite interested in trademarks. The footer on her website says:

KATHERINE STARR is a trademark of Katherine Starr. Negligent Dating, Negligent Digital Access, Negligent Digital Architecture, Digital Maritime Doctrine, Negligent Frequency, The Negligent Shield, and Negligent Legal Architecture are service marks of KStarr Enterprises, LLC

If you are wondering, the “digital maritime doctrine” is “a legal framework applying maritime principles like duty of seaworthiness and flag of convenience to modern digital platforms.” I think Admiralty Law has many underexplored insights to offer Internet Law.

[Little-known fact: When I was writing my first Internet Law paper in 1993, the student editor editing my paper independently shared a Maritime Law course outline with me. So I did in fact think about how the Law of the Sea might apply to the Law of the Internet back in 1993! However, I didn’t have the legal vision and insights that Starr has brought to that question.]

Starr wrote a book titled Where There Are Rights. (Yes, she claims a trademark in the book title, despite the trademark rule that a book title isn’t eligible for trademark protection unless it’s part of a series). She describes the book:

Drawing on her dual perspective as a Legal Theorist and Two-Time Olympian, Starr introduces trademarked legal frameworks that name what courts, policymakers, and institutions have ignored: that negligence has an architecture, a frequency, and a delegation pattern, frameworks now ready to be tested in law.

To Starr’s credit, she didn’t just hypothesize that her frameworks were “ready to be tested in law.” She went ahead and actually tested them in court! She brought a pro se lawsuit against Google. Props (?) for walking the walk.

As a trademark geek, I’m intrigued by the concept of “trademarked legal frameworks.” How can a “legal framework” become trademarkable, and what rights would that trademark confer? Could a lawyer sue another lawyer for bringing a claim based on a “trademarked legal framework”? (Especially if Starr isn’t a licensed lawyer and couldn’t file claims based on those frameworks for any clients). Sounds like a good but challenging trademark law final exam question.

The court describes Starr’s claims against Google:

She alleges that when users search for her legal frameworks using Google’s search engine, the frameworks themselves appear, but the search results “fail to return Plaintiff’s name in connection with these works.” She also alleges that Google’s search engine turns up other Katherine Starrs, but it is unclear from the complaint whether this occurs when a user searches for Starr’s legal frameworks or simply for the name “Katherine Starr.” Starr alleges that this conduct has “divert[ed] recognition, professional opportunity and search authority away” from Starr, who is “the rightful originator of the frameworks.” She also alleges that her business, Plaintiff KSTARR Enterprises LLC (“KSTARR”) has “experienced loss of prospective business opportunities, reputational dilution, and economic harm.”

If you want to indulge your inner legal nerd, these arguments raise all kinds of fascinating conceptual issues to cogitate and debate. For example, how could a “trademarked legal framework” confer a right of attribution? If Starr isn’t a licensed lawyer, then exactly what professional opportunities have been disrupted by not attributing the “legal frameworks” to her?

None of these thorny doctrinal questions get addressed. Instead, we get a perfunctory opinion granting a motion to dismiss–the kind of standard opinion we see in pro se cases that are not close.

Lanham Act False Designation of Origin

The magistrate says Starr “does not allege that Google placed Starr’s or KSTARR’s mark on any goods or used or displayed her mark in the sale or advertising of services rendered in commerce….Starr does not allege that Google is selling anything.”

Tortious Interference

Though Starr alleges that Google generally understood that her “digital presence” was important to her business relationships, she fails to make any nonconclusory allegations that Google knew about prospective business relationships between Starr and specific attorneys, legal teams, academic institutions, or legal platforms…any effect on Starr’s business relationships was likely an incidental effect of Google’s broader “search algorithm and indexing practices.”

“Negligent Digital Architecture” and “Violation of Commercial Attribution Rights”

Starr alleges she is entitled to relief based on two legal theories she created: “negligent digital architecture” and “violation of commercial attribution rights.” In support of the former claim, she alleges that Google “owes a duty of care to ensure that its digital architecture does not foreseeably cause reputational or attribution-related harm to individuals whose identities and authored works are indexed on its platform.” According to Starr, Google was negligent in failing to “design[ ] or maintain[ ] a digital infrastructure that ensures accurate author attribution.” In support of the latter claim, Starr states that “[b]y structurally detaching Plaintiff’s name from search results referencing her original legal frameworks, Defendant has deprived Plaintiff of the right to be accurately represented as the author of her work in digital information environments.”

The District Judge should decline Starr’s invitation to recognize these novel causes of action. By Starr’s own admission, her “negligent digital architecture” claim is based in her own legal frameworks, not state or federal law. The undersigned also cannot identify any cause of action under state or federal law for “violation of commercial attribution rights.”

Starr tried to reposition the “negligent digital architecture” claim as a standard products liability claim. This doesn’t work: “Starr does not allege that Google’s search engine is ‘unreasonably dangerous’ or offer any facts suggesting that Google’s search algorithms are unreasonably dangerous.”

* * *

This is a magistrate judge’s R&R, so I imagine we’ll hear about this case at least one more time.

Google invoked Section 230 as a defense, but the court didn’t need to address it.

Starr’s claims challenge Google’s core algorithmic search results offerings. Lawsuits over Google’s organization and dissemination of organic search results have gone nowhere, even when they are not litigated pro se.

Case Citation: Starr v. Google LLC, 2026 WL 1603313 (W.D. Tex. June 3, 2026). The CourtListener page. The initial complaint.

The post Google Defeats “Negligent Digital Architecture” Claim–Starr™ v. Google appeared first on Technology & Marketing Law Blog.

This case is an example of that phenomenon. Many hundreds, or likely thousands, of Northern District of Illinois cases have authorized email service of process on Chinese defendants, collectively affecting tens or possibly hundreds of thousands of defendants. When the issue of email service to Chinese defendants finally reached the Seventh Circuit, a panel rejected the plaintiffs’ core argument.

In the process, the opinion likely overturns many hundreds of SAD Scheme cases that used email service of process to Chinese defendants. Many pending cases have lost jurisdiction, and perhaps prior defaults could be overturned. The ruling also should curb future SAD Scheme cases by jacking up litigation costs. As a result, this is a major SAD Scheme precedent.

This ruling also highlights the urgency of getting SAD Scheme cases before appellate courts. The SAD Scheme inexplicably has defied gravity in the district courts for years. I expect it will eventually come crashing down–if we can just get the appellate courts to weigh in.

* * *

This is a standard SAD Scheme trademark enforcement. The plaintiff Kangol sued 25 defendants listed on a Schedule A, claiming the China-based merchants sold counterfeits on Alibaba. Kangol secured an ex parte TRO and got permission to serve the complaint via email.

The defendant in question, Hangzhou Silk, received the service email and began negotiating with Kangol. However, Hangzhou Silk didn’t make a court appearance. Kangol obtained a default judgment that included a court award of damages, which Kangol collected from Hangzhou Silk’s Amazon account. Hangzhou Silk finally appeared in court and contested the default on multiple grounds. The district court held that the Hague Convention permitted email service to Chinese defendants.

Does the Hague Convention Apply?

The court summarizes:

Article 1 states that the [Hague] Convention “shall apply in all cases, in civil or commercial matters, where there is occasion to transmit a judicial or extrajudicial document for service abroad” but “shall not apply where the address of the person to be served with the document is not known.”

Kangol first argued that emailing links to the summons and complaint wasn’t the transmission of a “document.” The court calls that argument “hardly credible.”

Kangol also argued that Hangzhou Silk’s address wasn’t known, so the Hague Convention didn’t apply. “Kangol asserts that its efforts to locate Hangzhou yielded several, conflicting addresses, and that those addresses were for ‘stalls at an open-air market.’ Hangzhou, on the other hand, maintains that its address is known and easily discoverable.” The district court didn’t resolve this fact dispute. The Seventh Circuit remands the case on this point.

[Personal note: Last summer, I did a 2-week, 5-city speaking tour of China, mostly to discuss the SAD Scheme. My photo album. My speaking companions included some counsel from the firm defending this case. After our presentation in Hangzhou, we went on an excursion to find this defendant’s physical location, which we accomplished easily.]

If the Hague Convention applies to this defendant, email service is not allowed:

The Convention’s text and structure demonstrate that, where it applies, it provides the permissible means of service and excludes all others. And because no provision of the Convention authorizes service by email in China, such service violates the Convention and Rule 4(f)(3) [cites include Smart Study, reaching the same conclusion in the Second Circuit]

The court summarizes its ruling:

if the Hague Service Convention applies, then service was improper because the Convention prohibits service by email in China. But the district court must first determine whether the Convention applies at all. We therefore reverse the district court’s denial of Hangzhou’s motion to vacate and remand with instructions for that court to consider whether the Convention applies

Implications

The 7th Circuit leaves open the possibility that plaintiffs can still serve Chinese defendants via email if a defendant’s physical address isn’t readily ascertainable. (A reminder that the INFORM Consumers Act now requires the disclosure of many online merchants’ addresses). Plaintiffs will surely claim they couldn’t readily find the defendant’s address–whether they actually tried or not–and keep requesting email service to Chinese defendants. In my post about Smart Study, I wrote:

Although many SAD Scheme plaintiffs hypothesize in their robo-filings that the defendants are Chinese counterfeiters, the reality is that far too often the plaintiffs’ lawyers haven’t researched the defendants’ locations (despite their Rule 11 obligation to do so if they are claiming the defendants are Chinese) and don’t have a clue where they actually are located….Plaintiffs may lean into their willful ignorance and simply claim they don’t know where the defendants are, so email service should be OK because the plaintiffs haven’t confirmed the defendants are in China. This move ought to be forcefully rejected by judges for the obvious failure to comply with Rule 11 and other ethics rules, but so long as defendants aren’t around to protest, judges might still allow it.

In contrast, if Northern District of Illinois judges vigorously apply this ruling and routinely reject email service on Chinese-based defendants, this ruling ought to have a major impact on the SAD Scheme. It will force plaintiffs to do more invidualized research about each defendant’s location and incur higher service costs for each defendant. Plaintiffs will rethink some of their shotgun litigation approaches to avoid those requirements.

Until we see what N.D. Ill. judges do with this ruling, I’m not sure if this ruling is just another minor speedbump for SAD Scheme plaintiffs or a major reduction in the scheme. In the short term, I expect SAD Scheme plaintiffs will keep doing exactly what they’ve done in the past and gamble on continued judicial acquiesence/apathy. I hope that judges call out plaintiffs if they try that.

Meanwhile, if you are a China-based SAD Scheme defendant who has been victimized by the scheme based on email service, you might check with your lawyer to see if this ruling opens up the possibility of dismissing your case and clawing back any seized assets.

Case Citation: Kangol LLC v. Hangzhou Chuanyue Silk Import & Export Co., Ltd., No. 25-2205 (7th Cir. May 29, 2026). Kangol was represented by a team from Calfee, Halter, & Griswold in Cleveland. Hangzhou Silk was represented by Wesley E. Johnson and Ben Solter of Cross-Border Counselors.

The post Seventh Circuit Limits Email Service to Chinese SAD Scheme Defendants–Kangol v. Hangzhou Silk appeared first on Technology & Marketing Law Blog.

(Reminder: LegalForce runs Trademarkia).

It was a classic Judge Alsup move. The plaintiff’s dubious assertions survived a motion to dismiss, but Judge Alsup hammered the plaintiff when its proof ultimately didn’t support its claims. In my prior blog post, I wrote:

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.

Judge Alsup retired before resolving the fee request, so Judge Corley drew the short straw to resolve this stinker. She awards the defense over $90k in fees and costs–a sizable fee shift, but a trivial fraction of the alleged $1.3M in defense costs.

* * *

Judge Corley has tart words for both sides:

Plaintiff’s case became exceptional because Plaintiff alleged facts it knew to be false, discovered other facts demonstrating its case was meritless, took steps to obscure those facts, and continued to litigate its action. However, Defendant’s response was also exceptional. Defendant frivolously delayed discovery which would have removed any doubt Plaintiff’s case was meritless, violated local rules and court orders repeatedly in ways that also delayed resolution, and failed to move for summary judgment even after it had evidence to dispose of Plaintiff’s claims. So, only a small fraction of Defendant’s nearly $1.3 million in fees sought was reasonably incurred.

A pox on both sides’ houses?

One part of Judge Corley’s recitations took my breath away:

Plaintiff argues it “might have continued litigating just to be a thorn” but “ceased the fight once management made an executive decision in view of new facts.” But Plaintiff never ceased litigating; instead, Plaintiff insisted on trial and is appealing.

Say what? Continuing to litigate “just to be a thorn” seemingly violates multiple rules of professional conduct. I wonder if the applicable state bars are aware of this statement?

Judge Corley summarizes:

Plaintiff’s claims appeared just a bit better than meritless from the start, even when buttressed by Plaintiff’s knowingly false allegations. And Plaintiff’s claims cratered as the evidence came in. By February 13, 2025, Plaintiff had received the results of its second consumer survey showing no material likelihood of confusion, even under circumstances it had constructed. And by February 15, 2025, Plaintiff had received and pressure-tested Defendant’s productions showing Defendant had referred nobody to trademark lawyers during the period it used the accused mark. Other dissimilarities between business lines, marketing channels, and the marks were—at least by then—clear. The case was meritless, and Plaintiff knew or should have known it by February 15, 2025….

as the merits of Plaintiff’s case plummeted, Plaintiff’s misconduct escalated, including Plaintiff’s overstating or obscuring the merits to maintain its case…So, Plaintiff’s litigation was infected by bad faith at least after February 15, 2025.

Ordinarily, in plaintiff benchslaps like this, the defense will get a significant fee shift. But Judge Corley has many issues with the defense counsels’ choices, especially the decision not to seek summary judgment and instead let the case proceed to trial:

Because Defendant would not pay a $23,522 bill to end the action with certainty, or the cost to file a summary judgment motion, Defendant decided to incur around $550,000 in charges with the hopes of eventually ending the litigation. Assuming Defendant sought to limit costs, its approach makes no sense. Alternatively, assuming Defendant sought to vindicate its rights, its approach also made no sense; the proposed dismissal or a summary judgment motion would have sufficed.

If the defense’s $1.3M defense costs are correct, the fee shift is about 5% of its spend. That doesn’t sound like a good economic deal to me. And the plaintiff has already appealed the case to the Ninth Circuit, so both parties seemed destined to keep spending/wasting even more time and money on each other. Perhaps the $90k fee and cost shift provides enough clarity to the parties to price their exits.

* * *

Judge Corley ends her opinion with an exasperated plea/fortune cookie message:

“Both sides are cautioned to reflect before making any further filing.”

Created by ChatGPT May 2026

[It reminded me of Judge Kozinski’s closing line from Mattel v. MCA (the Barbie Girl case): “The parties are advised to chill.”]

Judge Corley offers some sage advice. Will the parties heed it? Or will they fall back into old habits? #Pause #Breathe #Reflect #Settle

Case Citation: LegalForce RAPC Worldwide P.C. v. MH Sub I, LLC, 2026 WL 1329654 (N.D. Cal. May 13, 2026). Defense counsel is Steven A. Schuman of Leonard, Dicker & Schreiber LLP and Wendy Evelyn Giberti.

The post Raj Abhyanker’s Firm Ordered to Pay $90k+ for Ill-Advised Trademark Enforcement Lawsuit–LegalForce v. LawFirms appeared first on Technology & Marketing Law Blog.

Plaintiffs are often allowed to choose their own forum. But they’re not supposed to be able to choose their own judge. And yet, in the U.S. District Court for the Northern District of Illinois, some Schedule A plaintiffs appear to be doing just that.

For example, the maneuver I call “defendant pinching” generally goes like this: Plaintiffs will file Schedule A cases against some number of defendants. If they draw certain judges, they immediately amend their complaint to drop all but one of the defendants. They then refile a new case against the dropped defendants, which is randomly assigned to a new judge. Plaintiffs sometimes perform this maneuver repeatedly, amending down and refiling over and over again until they get one of a certain subset of the NDIL judges.

Some judges have called out—and even sanctioned—plaintiffs over this maneuver. When questioned, some plaintiffs have said that they using this maneuver to comply with the judges’ varying views on Schedule A joinder. Whatever the subjective intent may be, these maneuvers have the foreseeable effect of moving most of the plaintiffs’ Schedule A claims off the dockets of judges who have been skeptical (or even critical) of various parts of this litigation model and onto the dockets of the judges who have been more accommodating.

In my forthcoming article, Defendant Pinching & Pressing, I argue that this maneuver is a form of judge shopping. In doing so, I draw an analogy to roulette. Some people have analogized random judicial assignment to a game of roulette—spin the wheel, get a judge. But sometimes people cheat at roulette. They might increase their bet after they know where the ball will land (“bet pressing”) or reduce it (“bet pinching”). In either case, they’re changing the stakes of the game after the final result is known. Similarly, when Schedule A plaintiffs drop (or add) defendants, they’re changing the expected “payout” for the case. Plaintiffs shouldn’t be able to spin the judicial-assignment wheel over and over until they “win.” They don’t get to do it in other cases; I haven’t heard any compelling reason why they should get to do it in Schedule A cases.

This paper is very much still a work in progress. And it is, at least in one respect, already out of date. Since I finished the posted draft, it appears that at least some plaintiffs have switched to a new standard procedure: Upon drawing certain judges, they amend down to one defendant, wait a bit, and then voluntarily dismiss the remaining defendant. Due to all of the sealing, it’s not entirely clear whether or how the claims are being refiled. But given past practice, it would be surprising if they weren’t being refiled somewhere, somehow. If anyone out there has insights into this new maneuver—or thoughts on Schedule A judge-shopping more generally—please reach out. I’d love to hear your thoughts.

The post Judge Shopping & Schedule A (Guest Blog Post) appeared first on Technology & Marketing Law Blog.

The court contextualizes the case:

Intellectual property lawsuits like this one have flooded the Northern District of Illinois. In a typical case, the IP holder files trademark or copyright infringement claims against multiple foreign merchants selling goods on e-commerce platforms like Amazon or Etsy. The plaintiff joins the defendants in a single lawsuit, identifying them in a sealed document attached to the complaint as “Schedule A,” a practice that gives this increasingly common and controversial form of litigation its name. Before defendants are served, a Schedule A plaintiff seeks an emergency temporary restraining order, prejudgment restraint on the defendants’ assets, and electronic service of process, all ex parte. Often, defendants never respond or stop participating in litigation, so the district court must enter default and award statutory damages to the plaintiff with little or no information about the extent of the infringement.

This case follows much of the typical Schedule A playbook. Since 2017, China-based Huajie has sold clothing under the “bellelily” trademark on the website www.bellelily.com. In 2021, Leyibei, also based in China, began selling similar clothing on its similarly named website, www.bellelliy.com. (The “I” and an “L” are transposed in the two names.)

The panel clearly knows about the SAD Scheme, even though it hasn’t heard many appeals yet. For example, the judges already know that SAD Scheme cases are “flooding” the court system and are “controversial.”

Note that this case involves two Chinese litigants fighting in U.S. courts. That is a thing nowadays. Apparently, the Chinese vendors have adopted the philosophy “if you can’t beat ’em, join ’em.” The SAD Scheme gives them another tool to attack their competition. On the plus side, I guess the U.S. is exporting its litigation norms to foreigners. On the minus side, foreign competitor-on-competitor litigation sometimes has nothing to do with protecting U.S. consumers from harmful “counterfeits.” As the stereotype goes, the Chinese are skilled at copying U.S. innovations, and I guess the copiable innovations include the SAD Scheme.

Unlike many SAD Scheme cases, the defendant initially showed up to contest this lawsuit. However, by the time the rightsowner requested summary judgment, the defendant stopped participating.

As a result, the defendant defaulted, and the rightsowner submitted a proposed final judgment. The rightsowner’s proposed order was “barebones” and didn’t justify the rightsowner’s damages request. As a result, the lower court judge issued a final judgment that said the defendant’s infringement was willful and approved an injunction. However, instead of the rightsowner’s requested damages of $2M for willful trademark counterfeiting and $100k for cybersquatting, the district court–without explaining the decision–only awarded the mininum damages for each claim, i.e., $1k each claim, for a total of $2k. DOINK.

The rightsowner appealed the district court’s minimum damages award to the Seventh Circuit. The defendant didn’t show up to contest the appeal, so the rightsowner’s advocacy was completely unrebutted. And yet…the rightsowner still found a way to lose. DOINK AGAIN.

The per curiam opinion summarizes: “it may be better practice for district courts to briefly explain their reasoning in cases like this, but we decline to give Huajie a second bite at the apple.”

The opinion explains:

Huajie failed to offer evidence or arguments in favor of maximum damages, so the district court did not err by failing to offer a robust explanation of its ruling. Huajie argues that the district court should have circled back to its motion for summary judgment to search for support for its damages award. But it was Huajie’s job to make its case for maximum damages on default to the district court, not the court’s job to search through the record for support…

After the district court entered default, Huajie needed to offer evidence and arguments in support of the damages award. But…its proposed order, unaccompanied by any contemporaneously filed motion for entry of default judgment, lacked any rationale to support the maximum award. Although Huajie sought maximum statutory damages in its earlier motion for summary judgment—arguing that only a substantial award could compensate it for its losses and deter future misconduct—it failed to direct the court to those earlier arguments. So Huajie invited the consequence of which it now complains…

we affirm on a basis obvious from the record: nothing immediately available to the district court was adequate to support a $2 million award.

Because Huajie failed to establish its entitlement to the considerable damages it requested, we uphold the district court’s award of minimum statutory damages. We also take this opportunity to remind litigants that the race is not over after the entry of default. A plaintiff with a default in hand still must support a request for damages with evidence and argument.

Judge Pryor dissents in an opinion that recaps a lot of the same material as the per curiam opinion, suggesting that Judge Pryor hoped to write the majority opinion. She says there’s not enough substance in the district court’s judgment to permit the appellate court to evaluate if the district court judge exercised his discretion properly:

The [district court’s] order does not explain how and why the district court landed on its statutory damages award for willful trademark infringement ($1,000) or cybersquatting ($1,000), and nothing else in the record provides any hints. There’s simply no indication the district court exercised its discretion…

a district court must provide some explanation to support its exercise of discretion in fashioning an award of damages to satisfy due process and facilitate appellate review, even in Schedule A litigation regarding statutory damages

For that reason, Judge Pryor would have remanded the case so the lower court judge could explain the damages amounts.

Created by ChatGPT April 2026

I hear the point raised by Judge Pryor. Judicial rulings without explanations leave everyone scratching their head and stymie appellate review. For example, you may recall the avoidable drama created when the Fifth Circuit lifted the stay on Texas’ Social Media Censorship Act without issuing an opinion, making it virtually impossible to challenge at the Supreme Court. (The Supreme Court eventually eviscerated that law). However, in this case, the per curiam opinion persuasively explained that “Huajie invited the consequence of which it now complains” and doesn’t deserve a second bite at the apple.

When the dust settled, the rightsowner walks away with a whopping $2k in damages from this defendant, which is surely a substantial financial loss in light of the appeal costs. However, it also got an injunction, which may or may not be valuable.

* * *

It’s a bummer the Seventh Circuit once again didn’t substantively address the overall viability of the SAD Scheme. As I’ve repeatedly complained, the merits of SAD Scheme cases will rarely reach the appellate courts. The appellate courts’ silence helps the scheme persist.

At the heart of this appeal are two interrelated issues:

1) The rightsowner cut corners on its advocacy, not supporting its proposed final judgment with a rationale that the judge could rely on, and

2) The lower court judge (Judge Seeger, a savvy judge about SAD Scheme abuses) cut corners on issuing the final judgment. This might be the result of the extreme workloads that SAD Scheme cases impose on judges and/or the rightowner’s weak advocacy.

In my opinion, it’s always noteworthy when a plaintiff loses unopposed cases, because they are almost certain to win if they simply make a proper showing of their legal rights. Each time I wonder how they blew the layup.

Case Citation: Shenzhen Huajie Technology Co., Ltd. v. Shenzhen Leyibei Technology Co., Ltd., No. 25-2659 (7th Cir. April 29, 2026). The rightsowner’s lawyers were Adam Edward Urbanczyk and Brian M. Swift of AU LLC.

The post SAD Scheme Plaintiff Gets Default Win But Blows the Layup on Damages–Shenzen Huajie v. Shenzen Leyibei appeared first on Technology & Marketing Law Blog.