Case 5:17-cv-06064-LHK Document 54 Filed 03/26/18 Page 19 of 27
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failed to allege sufficient facts to support a Lanham Act false advertising claim based on any of
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these representations. The Court addresses each representation in turn.
United States District Court
Northern District of California
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i. Implying that Plaintiff’s Videos are “Inappropriate”
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Plaintiff appears to argue that Defendants engaged in false advertising by deciding to
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exclude some of Plaintiff’s videos from YouTube’s Restricted Mode. Specifically, Plaintiff
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asserts that “when Defendants restrict [Plaintiff’s] videos, they send clear but false signals to all
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users and controllers of Restricted Mode that [Plaintiff’s] videos contain content that is
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inappropriate for younger viewers.” Opp. at 25. However, as Defendants point out, Plaintiff has
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not “pointed to anything that YouTube said publicly about its classification of those videos.”
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Reply at 15. For example, there is no indication that in addition to ensuring that some of
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Plaintiff’s videos are not accessible to Restricted Mode users, Defendants also publish statements
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notifying Restricted Mode users that those specific videos have been deemed to be inappropriate
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or unsuitable for certain viewers. See, e.g., Darnaa, LLC v. Google, Inc., 2015 WL 7753406, *1
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(N.D. Cal. Dec. 2, 2015) (rejecting a claim that “YouTube’s posting of a notice that [a] video had
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been removed because it violated YouTube’s Terms of Service” amounted to false advertising in
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violation of the Lanham Act). All that Plaintiff’s complaint alleges is that by restricting access to
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some of Plaintiff’s videos, Defendants have falsely implied—or, in Plaintiff’s words, have “sen[t]
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clear but false signals,” Opp. at 25—that those videos are inappropriate.
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The Court does not see how the mere implications that flow from Defendants’ decisions to
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restrict access to some of Plaintiff’s videos can constitute “commercial advertising or promotion”
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within the meaning of the Lanham Act. 15 U.S.C. § 1125(a)(1)(B). Even assuming that these
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implications can be considered false statements under § 1125(a)(1)(B), Plaintiff alleges no facts
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that remotely suggest that Defendants restricted access to Plaintiff’s videos for any “promotional
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purpose.” Darnaa, 2015 WL 7753406 at *8 (finding that allegations were insufficient to plausibly
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suggest that YouTube’s notice that a video had been removed for violating YouTube’s terms of
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service was published for a “promotional purpose”). Put another way, Plaintiff’s factual
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Case No. 17-CV-06064-LHK
ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS PLAINTIFF’S FEDERAL CAUSES OF ACTION;
DISMISSING PLAINTIFF’S STATE LAW CAUSES OF ACTION; AND DENYING PLAINTIFF’S MOTION FOR
A PRELIMINARY INJUNCTION