Case 5:17-cv-06064-LHK Document 54 Filed 03/26/18 Page 20 of 27
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allegations do not plausibly suggest that Defendants restricted access to some of Plaintiff’s videos
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“as part of an organized campaign to penetrate the relevant market,” which the Second Circuit has
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stated is “the touchstone of whether a defendant’s actions may be considered ‘commercial
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advertising or promotion’ under the Lanham Act.” Fashion Boutique of Short Hills, Inc. v. Fendi
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USA, Inc., 314 F.3d 48, 57 (2d Cir. 2002). Further, there is no indication that word of Defendants’
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restriction decisions regarding Plaintiff’s videos was “disseminated sufficiently to the relevant
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purchasing public to constitute ‘advertising’ or ‘promotion’” by Defendants. Coastal Abstract,
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173 F.3d at 735. As a result, Plaintiff has failed to state a cause of action under the Lanham Act
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based on Defendants’ decisions to restrict access to some of Plaintiff’s videos.
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United States District Court
Northern District of California
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ii. YouTube’s Policies and Guidelines
As discussed above, Plaintiff alleges that Defendants restrict access to content on YouTube
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based on a number of policies and guidelines. These guidelines contain criteria “for determining
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whether [the video’s] content warrants” some sort of restricted access. Compl. ¶ 42. For example,
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the “Restricted Mode Guidelines” look to, among other things, whether a video contains
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“[g]raphic descriptions of violence,” “inappropriate language,” and “[o]verly detailed
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conversations about or depictions of sex or sexual activity.” Id.
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In its opposition to Defendants’ motion to dismiss, Plaintiff appears to assert that these
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policies and guidelines amount to false advertising on the part of Defendants. Opp. at 24 (“As
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Defendants concede, the Complaint references YouTube’s policies and guidelines . . . .”).
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However, even assuming that the policies and guidelines could be considered “false statement[s]
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of fact” Southland Sod, 108 F.3d at 1139, presumably on the theory that Defendants allegedly
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apply them as a “pretext to censor and restrict [Plaintiff’s] speech,” Compl. ¶ 79, Defendants
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correctly point out that Plaintiff has not alleged sufficient facts to plausibly suggest that these
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policies and guidelines amounted to or were contained in “commercial advertising or promotion”
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within the meaning of 15 U.S.C. § 1125(a)(1)(B). Mot. at 24. Like with Defendants’ decisions to
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restrict access to some of Plaintiff’s videos, there is no indication from Plaintiff’s complaint that
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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