Lasoff v. Amazon.Com Inc.

Full title: STEVEN LASOFF, Plaintiff, v. AMAZON.COM INC, Defendant.

Court: UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE

Date published: Jan 26, 2017

CASE NO. C16-151 BJR (W.D. Wash. Jan. 26, 2017)

Opinion

CASE NO. C16-151 BJR

01-26-2017

STEVEN LASOFF, Plaintiff, v. AMAZON.COM INC, Defendant.

Barbara Jacobs Rothstein U.S. District Court Judge

ORDER GRANTING MOTION FOR SUMMARY JUDGMENT

I. INTRODUCTION

This matter is before the Court on Defendant's motion for summary judgment. (Dkt. No. 49.) The motion seeks dismissal of all claims filed by Plaintiff: trademark infringement (15 U.S.C. § 1125(a) and N.J.S.A. § 56:3-13.16), false advertising (15 U.S.C. § 1125(a)), unfair competition (15 U.S.C. § 1125(a), N.J. Stat. § 56:4-1, and common law), tortious interference with prospective economic advantage, gross negligence (New Jersey common law), monopolization (Sherman Act § 2), unjust enrichment and promissory estoppel. (See Dkt. No. 1, Complaint, Counts I - IX, pp. 8-15.) Plaintiff opposes the motion.

Upon review of all briefing, the applicable case law and relevant parts of the record, the Court GRANTS summary judgment to Defendant; Plaintiff's claims are ordered DISMISSED with prejudice in their entirety. The Court's reasoning follows:

II. LEGAL STANDARD

Summary judgment is appropriate if the evidence, when viewed in the light most favorable to the non-moving party, demonstrates "that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a); see Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Galen v. Cnty of L.A., 477 F.3d 652, 658 (9th Cir. 2007). The court is "required to view the facts and draw reasonable inferences in the light most favorable to the [non-moving] party." Scott v. Harris, 550 U.S. 372, 378 (2007).

The moving party bears the initial burden of showing there is no genuine issue of material fact and that he or she is entitled to prevail as a matter of law. Celotex, 477 U.S. at 323. If the moving party meets its burden, the burden shifts to the non-moving party to "make a showing sufficient to establish a genuine dispute of material fact regarding the existence of the essential elements of his case that he must prove at trial." Galen, 477 F.3d at 658.

III. BACKGROUND

Plaintiff Steven Lasoff ("Lasoff") is the sole owner of a business known as Ingrass, an enterprise which has marketed artificial turf and related products since 2004. (Dkt. No. 55-1, Decl. of Lasoff, ¶ 2.) In 2008, Lasoff entered into a Business Solutions Agreement ("BSA")¹ with Defendant Amazon.com, Inc. ("Amazon").

1 Defendant provided a copy of the BSA as an attachment to its motion. (Dkt. No. 50, Decl. of Schelle, Ex. A.) While Plaintiff indicates that he is not certain that this is the version of the BSA he signed in 2008 (Decl. of Lasoff, ¶ 11), at no time does he either deny that the provisions cited by Defendant in its briefing were part of his agreement or provide the Court with a copy of the BSA that he signed. The Court accepts as undisputed fact for purpose of this motion that those cited provisions were part of Plaintiff's agreement with Defendant.

Amazon operates the website www.amazon.com, an internet retail marketplace through which Amazon and third-party vendors sell their products. Initially, Lasoff experienced a "steady and substantial rise" in sales of his products, but in 2013 those sales began to "plummet," both on his own website (Ingrass.com) and Amazon's website. (Id. at ¶¶ 12-13.)

Plaintiff's research revealed that third-party sellers were offering cheaper, counterfeit "Ingrass" products for sale on Amazon.com. (Id. at ¶ 14.) There is no dispute that Amazon's policies forbid third-party vendors from selling products which violate the intellectual property rights of others. (Dkt. No. 50, Decl. of Schelle, Exs. E, F.) The problem, from Plaintiff's perspective, was that when potential online consumers would click on links advertising "Ingrass" products in Defendant's promotional emails or in "sponsored link" advertisements on third-party search engines (e.g., Google, Bing or Yahoo), they were directed, not to Plaintiff's Ingrass products on Defendant's website, but "to competing listings which falsely advertised products as 'Ingrass' products at a substantially discounted price." (Decl. of Lasoff, ¶ 16.)

There is no dispute regarding how Amazon creates its promotional emails and its "sponsored link" advertising on third-party search engines. The email marketing at issue is an automated process whereby an algorithm selects an advertisement to email to a customer based on information retained from that customer's browsing sessions on Defendant's website (e.g., products which the customer viewed online but did not purchase). (Dkt. No. 51, Decl. of Brauner, ¶ 4.) The content of the advertisement within the email is supplied by the vendor of the product, who has represented to Defendant that it has the right to license Amazon to display that content. (Decl. of Schelle, ¶ 9.)

Similarly, the facts concerning Amazon's advertisement on third-party search engines are not disputed. Defendant has an automated system which generates "keywords" (words or phrases related to products or product names) based on consumer searches on its websites.

An algorithm determines the terms that are bid as keywords for search engine advertising. Once a keyword is bid, when users search for that term on Google or another search engine, the results will display an ad for Amazon or for a product listed on amazon.com that is related to the keyword.

(Decl. of Brauner, ¶ 6.) These "sponsored link" advertisements appear above the results of an internet user's search once the keyword is entered into the search engine.

Plaintiff asserts that his complaint is not directed at the sale of competing and/or counterfeit products on Defendant's website. (Decl. of Lasoff, ¶ 18.) Lasoff's complaint, rather, "is that Defendant has misappropriated the Ingrass trade and domain name without permission, by bidding on, and paying for, the keywords 'Ingrass' and/or 'Ingrass.com' on third-party search engines." (Dkt. No. 55, Response at 5.) He further alleges that Amazon's use of "Ingrass" and "Ingrass.com" as keywords was unauthorized and a violation of his trademark and other legal rights. (Complaint, Counts I-IX, pp. 8-15.)

IV. DISCUSSION

There are no disputed material facts, simply a dispute about the legal impact of the facts; as discussed more fully below, Defendant is entitled to summary judgment as a matter of law on all of Plaintiff's claims. The Court will first examine a procedural issue raised by Plaintiff, then proceed to a summary judgment analysis of his claims.

A. Fed.R.Civ.P. 56(f)

Plaintiff opens his responsive briefing with a section devoted to what appears at first blush to be a motion to continue or deny the summary judgment motion on Fed.R.Civ.P. 56(f) grounds; specifically, that certain alleged deficiencies in Defendant's discovery responses have left him without the facts required to fully respond to the dispositive motion. (Dkt. No. 55, Response at 8-9.) Curiously, however, he then rescinds that motion in a footnote:

If the information requested in discovery was critical to defending against the fundamental claims in this motion, Lasoff would have moved for a continuance under FRCP 56(f). Because Lasoff can adequately defend against summary judgment without resort to the requested information though, it is not necessary to make such a motion.

(Id. at 9 n.4.) The Court will take Plaintiff at his word and analyze the parties' arguments based on the evidence provided.

B. The Communications Decency Act and Plaintiff's state law claims

The Communications Decency Act (47 U.S.C. § 230; "CDA") states 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." 47 U.S.C. § 230(c)(1). The statute does contain some exceptions to this immunity, among them that "nothing in this section shall be construed to limit or expand any law pertaining to intellectual property." 47 U.S.C. § 230(e)(2). However, the Ninth Circuit has held this "intellectual property" exclusion applies only to federal intellectual property law. Perfect 10, Inc. v. CCBill LLC, 488 F.3d 1102, 1119 (9th Cir. 2007).² Hence, if the CDA applies to these facts, Plaintiff's state law claims cannot survive.

2 The Court declines Plaintiff's invitation to ignore and/or overrule this holding. Outlier or not, Perfect 10 is the Ninth Circuit precedent on the controlling legal issue in this regard and this Court is bound to follow it. Hart v. Massanari, 266 F.3d 1156, 1170 (9th Cir. 2001).

The Court finds that the CDA does apply. Plaintiff does not contest that Amazon is "an interactive computer service;" rather, he argues that the information which forms the basis of his claims (i.e., the emails and online advertising generated through Amazon's "keyword" algorithm) has not been "provided by another information content provider" as the statute requires. His position is that, in creating the algorithm that generates the keywords and then purchasing the right to use them on third-party search engines, Amazon is a "direct actor" rather than a passive conduit of information content generated by some other provider.

The Ninth Circuit has spoken on this issue. In Carafano v. Metrosplash.com, Inc., 339 F.3d 1119 (9th Cir. 2003), an online dating service was held, under the CDA, to be immune from liability for false representations posted on the website regarding the plaintiff. The Carafano court cited with approval the decision in Gentry v. eBay, Inc., 99 Cal.App. 4th 816 (Cal.Ct.App. 2002), wherein it was held

[E]nforcing [Plaintiffs'] negligence claim would place liability on [Defendant] for simply compiling false and/or misleading content created by the individual defendants and other coconspirators. We do not see such activities transforming [Defendant] into an information content provider with respect to the representations targeted by [Plaintiffs] as it did not create or develop the underlying information.

Id. at 834.

The Court understands the basis of Plaintiff's complaint (and the grounds on which he attempts to differentiate his circumstances from those of plaintiffs who have sued interactive computer services for false information posted on their websites) to be that Amazon's involvement in selecting keywords from the content on its site, bidding on those keywords and using them in emails and search engine advertising takes it out of the role of passive information conduit and into the realm of direct content provider. The case law does not support Plaintiff's position.

As Plaintiff acknowledges, the crux of the CDA litmus test is "whether the cause of action inherently requires the court to treat the defendant as the publisher or speaker of content provided by another. If it does, section 230(c)(1) precludes liability." (Response at 13, citing Barnes v. Yahoo!Inc., 570 F.3d 1096, 1102 (9th Cir. 2009).) That is exactly what Plaintiff is asking this Court to do, and what the CDA prohibits. The content to which Plaintiff objects (the "Ingrass" keyword and the misrepresentations by copycat competitors that their products are "Ingrass" products) is provided by third parties and the claims which Plaintiff prosecutes attempt to cast Amazon as the "publisher or speaker" of that content. As Carafano makes clear,

[E]ven assuming [Defendant] could be considered an information content provider, the statute precludes treatment as a publisher or speaker for "any information provided by another information content provider." 47 U.S.C. 230(c)(1)(emphasis added). The statute would still bar [Plaintiff's] claims unless [Defendant] developed the particular information at issue.

339 F.3d at 1119. The fact that Defendant created the automated system which identifies the desirable keywords and then propagated advertisements based on those keywords is not what Lasoff seeks to hold it liable for; it is that the information generated by that system is improperly damaging to his legitimate and protected business interest in the brand "Ingrass." The fact is that Amazon neither created nor developed that information content, and the CDA prohibits Plaintiff from seeking to hold Amazon liable for certain violations as though it had.

As indicated in § 230(e)(2) of the CDA and Perfect 10, this does not immunize Amazon from liability under federal intellectual property law. However, Counts III (New Jersey unfair competition, N.J. Stat. 56:4-1), IV (New Jersey common law unfair competition), V (New Jersey trademark infringement, N.J.S. A. 56:3-13.16), VI (tortious interference with prospective economic advantage), VII (New Jersey common law gross negligence), IX (unjust enrichment)³, and X (promissory estoppel) are state law causes of action. Further, all are predicated on a legal theory which would hold Amazon liable as the "publisher or speaker" of information which resulted in injury to Plaintiff. As such, they are prohibited by the CDA and Defendant is entitled to summary judgment of dismissal regarding those claims.

3 Plaintiff's complaint erroneously lists two "Count VIII's"; for purposes of this order, the Court has redesignated the second of the two (unjust enrichment) as Count IX, and the following count (promissory estoppel) as Count X.

C. Substantive analysis of state law claims

Defendant devotes a portion of its summary judgment briefing to substantive arguments regarding the invalidity of Plaintiff's state law and/or common law claims. Plaintiff's responsive briefing contained no counter-arguments to this substantive analysis. However, because the ruling on the applicability of the CDA invalidates all of Plaintiff's non-federal causes of action, the Court finds it unnecessary to reach the substantive merits of those claims.

D. Federal trademark infringement/unfair competition

Lasoff asserts federal claims for trademark infringement and unfair competition under the Lanham Act (15 U.S.C. § 1125(a)(1)(A)). To successfully prosecute a Lanham Act claim, "a plaintiff must prove two basic elements: '(1) it has a valid, protectable trademark, and (2) [the defendant's] use of the mark is likely to cause confusion.'" S. Cal. Darts Assoc. v. Zaffina, 762 F.3d 921, 929 (9th Cir. 2014)(quoting Applied Info. Sciences Corp v. eBay, Inc., 511 F.3d 966, 969 (9th Cir. 2007)).

1. Valid , protectable trademark

As Plaintiff agrees, "Ingrass" is not a registered mark under either federal or state law. The result of this fact for purposes of this proceeding is that there is no presumption of validity for the "Ingrass" mark; Lasoff bears the burden of establishing that it is a valid, protectable trademark. Toho Co. v. Sears, Roebuck & Co., 645 F.2d 788, 790 (9th Cir. 1981).

Proof of trademark validity requires a plaintiff to establish both ownership and protectability. S. Cal. Darts Assoc., 762 F.3d at 929. Amazon concedes for purposes of this motion that Lasoff owns the Ingrass mark. (Motion at 9.) Defendant challenges Plaintiff's evidence of protectability, however.

"Whether a mark is protectable depends on its degree of 'distinctiveness.'" 762 F.3d at 929. "Distinctiveness" is divided into five categories. In ascending order of strength and protectability, they are: generic, descriptive, suggestive, arbitrary, and fanciful. Two Pesos, Inc. v. Taco Cabana, Inc., 505 U.S. 763, 768 (1992). Neither party argues that the Ingrass mark falls under the generic, arbitrary or fanciful rubric.

Amazon contends that "Ingrass" is a mark of a descriptive nature. "A descriptive mark is a mark that 'describes the qualities or characteristics of a good or service.'" Meth Lab Cleanup, LLC v. Bio Clean, Inc., No. C14-1259RAJ, 2016 WL 4539564, at *7 (W.D. Wash. Aug. 31, 2016)(quoting Park 'N Fly, Inc. v. Dollar Park & Fly, Inc., 469 U.S. 189, 194 (1985). Other than quoting from Lasoff's deposition⁴, Amazon provides no further argument or authority to support its conclusion that Ingrass is a "descriptive" trademark.

4 Specifically, Plaintiff's testimony that "Ingrass" is short for "It's Not Grass." (Dkt. No. 50, Decl. of Power, Ex. A, Depo. of Lasoff, 10:20-25.)

Plaintiff's position is that his Ingrass mark is a "suggestive" mark.

[A] mark is more likely suggestive if it passes the imagination test, which asks whether the mark "requires a mental leap from the mark to the product." Brookfield Communs., 174 F.3d at 1058; see also 2 J. MCCARTHY, TRADEMARKS AND UNFAIR COMPETITION § 11:71 (4th ed. 2004) ("MCCARTHY") ("Is some reflection or multistage reasoning process necessary to cull some direct information about the product from the term used as a mark?"). "[T]he imagination test is [the] primary criterion for evaluating" whether a mark is suggestive. Zobmondo, 602 F.3d at 1116 (quotation marks omitted).

Fortune Dynamic, Inc. v. Victoria's Secret Stores Brand Mgt., Inc., 618 F.3d 1025, 1033 (9th Cir. 2010). Suggestive marks "connote, without describing, some quality, ingredient, or characteristic of the product." Sara Lee Corp. v. Kayser-Roth Corp., 81 F.3d 455, 464 (4th Cir. 1996). Examples of such marks are "Coppertone" (for suntan lotion) or "Orange Crush" (for a carbonated beverage). Id.

With that distinction in mind, the Court finds that the "Ingrass" mark is suggestive rather than descriptive. The name "Ingrass" does not describe the "qualities or characteristics" of Plaintiff's product; rather, it requires a leap of imagination and understanding to go from the product name to the actual product. While the Court cannot imagine an average consumer instantly understanding what Plaintiff's product is based on the name, it is not difficult to imagine that same consumer saying something like "Oh, I get it" upon seeing the product to which the mark is attached. On that basis, the mark is best categorized as suggestive and thus both strong and worthy of protection.

2. Use of the mark

Defendant challenges the allegation it has "used" Plaintiff's trademark, and, even if the Court were to find to the contrary, whether such "use" subjects it to liability for direct infringement.

The cases cited by Defendant in support of its argument that it has not "used" Lasoff's mark are more notable for what they do not say than for what they do. Fonovisa , Inc. v. Cherry Auction, Inc. (76 F.3d 259 (9th Cir. 1996)) and Hard Rock Cafe Licensing Corp. v. Concession Servs. (955 F.2d 1143 (9th Cir. 1992)) both concern "swap meet/flea market" operations where third party vendors were permitted to sell counterfeit "knock off" goods. Although there is no finding in either opinion that the defendants "used" the plaintiffs' trademark in the sense intended by the Lanham Act, the fact remains that neither is a direct trademark infringement case. (In Fonovisa, the plaintiff-appellant did not challenge the lower court's dismissal of its direct infringement claim; in Hard Rock Cafe, a direct infringement claim was never alleged.) Amazon clearly wishes the Court to find its position analogous to those of the swap meet operators; the analogy is not a strong one (there is no evidence that the swap meet operators generated promotional messages advertising the counterfeit goods, for one thing). While it is instructive that no liability for direct trademark infringement was assessed against either of the defendants in Amazon's cases, their failure to analyze (in the context of the Lanham Act) whether those defendants had "used" the plaintiffs' trademarks renders them of limited utility.

Plaintiff responds with precedential authority which comes closer to the mark but is still distinguishable from this fact pattern. Network Automation, Inc. v. Advanced Sys. Concepts, 638 F.3d 1137 (9th Cir. 2010), concerns a case where one software engineering company (Network) purchased the trademarked name of its competitor (Advanced) as a keyword on a third-party search engine and used that mark in online advertising for its competing product. The Ninth Circuit noted that "the district court correctly found the prerequisite 'use in commerce' in Network's use of the mark to purchase keywords to advertise its products for sale on the Internet." Id. at 1144.

Defendant's attempt to distinguish their conduct by differentiating between the "deliberate" selection of Advanced's trademark by Network and the Amazon algorithm which automatically selects keywords to purchase seems a hollow distinction: Amazon fails to explain how the company's creation of a system which makes the selection for it insulates it from the liability that can befall an enterprise which manually goes through the same process. Defendant fails to persuade that, in analyzing whether a party is "using" a mark for Lanham Act purposes, creating the process by which a selection is made is ultimately any different than actually making the selection.

Network Automation cited with approval a second case on which Plaintiff relies. Rescuecom Corp. v. Google, Inc., 562 F.3d 123 (2nd Cir. 2009), involves a lawsuit against a search-engine entity for its practice of algorithmically finding and then recommending the use of the plaintiff's trademark to the plaintiff's competitors through Google's "AdWorks" program. Google argued that "the inclusion of a trademark in an internal computer directory cannot constitute trademark use," but the court advised that the fact that an internal software program automatically generated the trademarked name as a possible keyword and stored it in an internal directory would not "insulate[ ] the alleged infringer from a charge of infringement" if that keyword were made available for purchase from the directory and later used in a commercial fashion likely to deceive a consumer. Id. at 129-130. The generation of a trademark as a keyword for sale under those circumstances was, at the very least, a "use in commerce."

While the Court agrees that these cases preclude a summary judgment ruling that Defendant's practice is not a "use in commerce" under the Lanham Act, the inquiry cannot end there. For one thing, there are critical factual differences between the Network Automation and Rescuecom opinions and the instant case. Unlike the appellant in Network Automation, Amazon is not a competitor of Plaintiff's; no theory has been advanced asserting the Defendant has any motivation or intent to promote other businesses at the expense of Plaintiff's.⁵ Unlike the defendant company in Rescuecom, Amazon is purchasing (not selling) the use of Plaintiff's mark as a keyword.

5 Amazon's "non-competitive" status vis-à-vis Plaintiff points out a significant problem in Plaintiff's attempt to hold it liable as a trademark infringer/unfair competitor. Trademark infringement law is primarily concerned with stopping one person or entity from gaining an unfair competitive advantage over a business rival by misusing a protected mark. No one who offers their product for sale on amazon.com is a "competitor" of Amazon, and attempting to shoehorn the company into a direct trademark infringement framework creates a "square peg-round hole" situation for which traditional trademark law seems ill-suited.

Most significantly, however, there is case law on all fours with the factual circumstances of this case which holds that, even if Amazon's algorithmic purchase of Plaintiff's mark as a keyword is a "use in commerce" for Lanham Act purposes, such use does not subject Defendant to liability for direct trademark infringement. Defendant cites Tiffany (NJ) Inc. v. eBay, Inc., 600 F.3d 93 (2nd Cir. 2010) in support of its position that its conduct is not a violation of laws against direct trademark infringement. The Court is inclined to agree.

Tiffany (NJ) involves a lawsuit by the renowned jewelry company against eBay, the equally famous internet auction and retail sale website. Seeking to "promote sales of premium and branded jewelry, including Tiffany merchandise, on its site," the defendant "purchased sponsored-link advertisements on various search engines to promote the availability of Tiffany items on its website." Id. at 101. Alleging that eBay's use of its trademarked name was permitting and promoting the sale of counterfeit goods, Tiffany sued, arguing that "eBay had directly infringed its mark by using it on eBay's website and by purchasing sponsored links containing the mark on Google and Yahoo!." Id. at 102.

The Second Circuit Court of Appeals upheld the dismissal of Tiffany's claims, finding that "eBay's use of Tiffany's mark on its website and in sponsored links was lawful...[and] is not a basis for a claim of direct trademark infringement." Id. at 102-103. The Tiffany court held that "a defendant may lawfully use a plaintiff's trademark where doing so is necessary to describe the plaintiff's product and does not imply a false affiliation or endorsement by the plaintiff of the defendant." Id. The Second Circuit refused to require that eBay be the guarantor of the "genuineness of all of the purported Tiffany products offered on its website," finding that to do so would "unduly inhibit" its right to lawfully offer genuine Tiffany goods. Id. at 103.

The Court finds Amazon's position directly analogous to that of eBay, and further finds that the holding of Tiffany (NJ) - that there are "uses in commerce" which do not subject the user to liability for direct trademark infringement - applicable to this case. Plaintiff has not argued, and the Court finds no evidence in the record, that Defendant at any time "impl[ied] a false affiliation or endorsement by [Lasoff] of [Amazon.]" (See also Tre Milano, LLC v. Amazon.com, Inc., 2012 WL 3594380 (Cal. Ct. App. Aug. 22, 2012), for a ruling exempting Amazon from direct trademark infringement liability on Tiffany (NJ) grounds.)

The Court finds it significant that Plaintiff makes no direct counter-argument to this authority, but instead devotes a significant portion of his responsive briefing to an argument that Defendant should instead be subject to liability for contributory trademark infringement, a cause of action which Plaintiff did not plead. (Response at 20-23.) The Court will not permit Plaintiff, absent a formal motion and lacking any evidence of good cause, to amend his complaint to add an additional claim against Defendant at this stage of the proceedings. The Court will find that the law upholds Defendant's immunity from Lanham Act direct trademark infringement and/or unfair competition liability under these circumstances, and grant summary judgment of dismissal with prejudice of those claims.

E. False advertising

The Lanham Act assigns liability to any party who, "in commercial advertising or promotion, misrepresents the nature, characteristics, qualities, or geographic origin of his or her or another person's goods, services or commercial activities." 15 U.S.C. § 1125(a)(1)(B). The elements of a false advertising claim require a plaintiff to prove:

(1) the defendant made a false statement of fact about a product in a commercial advertisement, (2) the statement actually deceives or has the tendency to deceive a

substantial segment of its audience, (3) the deception is material, (4) the defendant caused the false statement to enter interstate commerce, and (5) the plaintiff has been or is likely to be injured as a result of the false statement.

Appliance Recycling Centers of Amer., Inc. v. JACO Environmental, Inc., 378 F.App'x 652, 654 (9th Cir. 2010)(citing Southland Sod Farms v. Stover Seed Co., 108 F.3d 1134, 1139 (9th Cir. 1997)).

Plaintiff's claim in this regard is undercut by problems similar to those which invalidated his state law claims under the CDA; namely, that the misrepresentations of which he complains originate with third-party vendors, not with Defendant. Defendant asserts that Amazon's advertising and other promotional materials truthfully depict what is offered for sale on its website; the liability for the false representations of Plaintiff's trademark lies with the third-party sellers, not with Amazon.

Legal support for Defendant's position can be found in Baldino's Lock & Key Service, Inc. v. Google, Inc., 624 F.App'x 81 (4th Cir. 2015). Plaintiff, a state-licensed locksmith, sued Defendant Google and other websites, alleging that their publishing of the names, addresses and phone numbers of unlicensed locksmiths constituted a Lanham Act violation. The Fourth Circuit affirmed the dismissal of the plaintiff's false advertising claim, holding that

Baldino's failed to show that the Defendants made any representations. Rather, the locksmiths who generated the information that appeared on Defendant's websites are solely responsible for making any faulty or misleading representations or descriptions of fact.

Id. at 82. Plaintiff attempts to distinguish the case on the basis that the Google advertisements were published directly by the unlicensed locksmiths, but this argument strengthens Defendant's position: just as Google could not be held liable for reproducing material which it did not know was false, neither can Amazon. Plaintiff fails to draw a meaningful distinction between two interactive computer service providers who created a platform for advertising which contained misrepresentative material generated by third parties. In both instances, liability lies with the vendors who created the misleading content, not the service providers who transmit that content.

Defendant's motion for summary judgment dismissal of Plaintiff's false advertising claim will be granted.

F. Sherman Act monopoly claim

Defendant attacks Plaintiff's cause of action for "monopolization" under the Sherman Act on the grounds that Lasoff cannot identify a "relevant market" as required by case law. See Forsyth v. Humana, Inc., 114 F.3d 1467, 1476 (9the Cir. 1997). A relevant product market usually comprises "the pool of goods or services that enjoy reasonable interchangeability of use and cross-elasticity of demand," and "[f]ailure to identify a relevant market is a proper ground for dismissing a Sherman Act claim." Tanaka v. Univ. of S.Cal., 252 F.3d 1059, 1063 (9th Cir. 2001).

The Court agrees with Amazon that what Plaintiff's complaint (essentially, that Amazon has "monopolized advertising of artificial turf in online search engines;" Complaint at ¶ 95) describes is a "monopsony," or buyer's side monopoly where the market is the pool of competing buyers. From that perspective, "[t]he proper focus is... the commonality and interchangeability of the buyers, not the commonality and interchangeability of the sellers." Todd v. Exxon Corp., 275 F.3d 191, 202 (2nd Cir. 2001)(quoting Roger D. Blair & Jeffrey L. Harrison, Antitrust Policy and Monopsony, 76 Cornell L. Rev. 297, 324 (1991)).

Plaintiff's "monopsony" legal theory has two problems. The first is the interchangeability of search engine advertising with other forms of internet advertising. Because there is no basis for distinguishing the "search engine advertising" market from the larger market of all internet advertising, the former is simply too narrow to form a meaningful "relevant market" for purposes of antitrust liability. See Person v. Google, Inc., 2007 WL 832941 at *4 (N.D. Cal. Mar. 16, 2007).

By contrast, the pool of competing purchasers is simply too large; i.e., there are multiple alternative buyers of online search engine advertising.⁶ Plaintiff's complaint makes no attempt, beyond general "monopolization" allegations, to address the interchangeability of purchasers of online search engine advertising for artificial turf products. Where the "service offeror" has "too many alternative buyers for [its] services," monopsony is not possible. U.S. Healthcare, Inc. v. Healthsource, Inc., 980 F.2d 589, 598 (1st Cir. 1993).

6 Ex. D to Plaintiff's own complaint lists the top 10 advertisers on Google, each of which spend in excess of $50 million annually in Google advertising. See Complaint, Ex. D. Amazon tops the list, but it clearly does not control the market of available buyers of online search engine advertising. --------

In addition to finding Defendant's Sherman Act arguments persuasive, the Court notes that Plaintiff's responsive briefing contains no counter-arguments. Defendant's motion for summary judgment dismissal of Plaintiff's Sherman Act claim will be granted.

G. Exemplary damages and attorney's fees

Besides compensatory damages for lost profits, Lasoff asks that his damages be trebled "pursuant to 15 U.S.C § 1117 because of the willful and unlawful acts as alleged herein" (Complaint, Prayer for Relief, ¶ 2.), and seeks reimbursement of his attorney's fees and costs. (Id. at ¶ 4.)

In light of the dismissal of all of his claims, it is axiomatic that Plaintiff's request for punitive damages, attorney's fees and costs will likewise be rejected.

V. CONCLUSION

The Court is aware that summary judgment is "generally disfavored in the trademark arena" because of the "intensely factual nature" of trademark cases. Entrepreneur Media v. Smith, 279 F.3d 1135, 1139 (9th Cir. 2002); Fortune Dynamic, Inc. v. Victoria's Secret Stores Brand Mgt., Inc., 618 F.3d 1025, 1029 (9th Cir. 2010). This is not a classic trademark infringement scenario, however; the Court finds that, while Plaintiff may well have a protectable trademark, the evidence clearly indicates that his remedy for its infringement does not lie against this defendant.

The material facts are not in dispute and the law dictates the outcome under these circumstances. Because Amazon did not create the information which appears in its online ads and emails, its use of that information is immunized from liability for direct infringement, unfair competition, and the remainder of Plaintiff's claims, at both the federal and state levels. For the reasons given above, Defendant's motion for summary judgment will be granted in its entirety and Plaintiff's claims against that defendant will be dismissed with prejudice.

The clerk is ordered to provide copies of this order to all counsel.

Dated January 26, 2017.

/s/_________

Barbara Jacobs Rothstein

U.S. District Court Judge