United States District Court
Northern District of California
Case 5:17-cv-06064-LHK Document 54 Filed 03/26/18 Page 18 of 27
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result of the false statement, either by direct diversion of sales from itself to defendant or by a
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lessening of the goodwill associated with its products.” Southland Sod Farms v. Stover Seed Co.,
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108 F.3d 1134, 1139 (9th Cir. 1997) (citations omitted). For purposes of § 1125(a)(1)(B), a
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representation by a defendant amounts to “commercial advertising or promotion” only if it was (1)
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commercial speech; (2) made “for the purpose of influencing consumers to buy defendant’s goods
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or services”; and (3) “disseminated sufficiently to the relevant purchasing public to constitute
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‘advertising’ or ‘promotion’ within that industry.” Coastal Abstract Serv. Inc. v. First Am. Title
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Ins. Co., 173 F.3d 725, 735 (9th Cir. 1999) (quoting Gordon & Breach Sci. Publishers v. Am. Inst.
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of Physics, 859 F. Supp. 1521, 1535–36 (S.D.N.Y 1994)). However, the representation “need not
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be made in a ‘classic advertising campaign,’ but may consist instead of more informal types of
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‘promotion.’” Id.
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Although the section of Plaintiff’s complaint dedicated to the Lanham Act does not
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identify any specific representations made by Defendants, see Compl. ¶¶ 115–19, Plaintiff’s
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opposition to Defendants’ motion to dismiss points to a handful of discrete alleged instances of
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false advertising by Defendants. Opp. at 24. In particular, Plaintiff identifies (1) YouTube’s
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suggestion that some of Plaintiff’s videos are “inappropriate”; (2) YouTube’s policies and
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guidelines for regulating video content; (3) YouTube’s statement that “voices matter” and that
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YouTube is “committed to fostering a community where everyone’s voice can be heard”; (4)
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YouTube’s statement on its “Official Blog” that YouTube’s “mission” is to “give people a voice”
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in a “place to express yourself” and in a “community where everyone’s voice can be heard,” and
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that YouTube is “one of the largest and most diverse collections of self-expression in history” that
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gives “people opportunities to share their voice and talent no matter where they are from or what
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their age or point of view”; and (5) Defendants’ representations in the terms of the agreements
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between Plaintiff and Defendants that Defendants seek to “help you grow,” “discover what works
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best for you,” and “giv[e] you tools, insights and best practices for using your voice and videos.”
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Id. (citing Compl. ¶¶ 3, 11, 14, 28, 104, 112). The Court agrees with Defendants that Plaintiff has
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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