Case 5:17-cv-06064-LHK Document 54 Filed 03/26/18 Page 20 of 27 1 allegations do not plausibly suggest that Defendants restricted access to some of Plaintiff’s videos 2 “as part of an organized campaign to penetrate the relevant market,” which the Second Circuit has 3 stated is “the touchstone of whether a defendant’s actions may be considered ‘commercial 4 advertising or promotion’ under the Lanham Act.” Fashion Boutique of Short Hills, Inc. v. Fendi 5 USA, Inc., 314 F.3d 48, 57 (2d Cir. 2002). Further, there is no indication that word of Defendants’ 6 restriction decisions regarding Plaintiff’s videos was “disseminated sufficiently to the relevant 7 purchasing public to constitute ‘advertising’ or ‘promotion’” by Defendants. Coastal Abstract, 8 173 F.3d at 735. As a result, Plaintiff has failed to state a cause of action under the Lanham Act 9 based on Defendants’ decisions to restrict access to some of Plaintiff’s videos. 10 United States District Court Northern District of California 11 ii. YouTube’s Policies and Guidelines As discussed above, Plaintiff alleges that Defendants restrict access to content on YouTube 12 based on a number of policies and guidelines. These guidelines contain criteria “for determining 13 whether [the video’s] content warrants” some sort of restricted access. Compl. ¶ 42. For example, 14 the “Restricted Mode Guidelines” look to, among other things, whether a video contains 15 “[g]raphic descriptions of violence,” “inappropriate language,” and “[o]verly detailed 16 conversations about or depictions of sex or sexual activity.” Id. 17 In its opposition to Defendants’ motion to dismiss, Plaintiff appears to assert that these 18 policies and guidelines amount to false advertising on the part of Defendants. Opp. at 24 (“As 19 Defendants concede, the Complaint references YouTube’s policies and guidelines . . . .”). 20 However, even assuming that the policies and guidelines could be considered “false statement[s] 21 of fact” Southland Sod, 108 F.3d at 1139, presumably on the theory that Defendants allegedly 22 apply them as a “pretext to censor and restrict [Plaintiff’s] speech,” Compl. ¶ 79, Defendants 23 correctly point out that Plaintiff has not alleged sufficient facts to plausibly suggest that these 24 policies and guidelines amounted to or were contained in “commercial advertising or promotion” 25 within the meaning of 15 U.S.C. § 1125(a)(1)(B). Mot. at 24. Like with Defendants’ decisions to 26 restrict access to some of Plaintiff’s videos, there is no indication from Plaintiff’s complaint that 27 28 20 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