United States District Court Northern District of California Case 5:17-cv-06064-LHK Document 54 Filed 03/26/18 Page 21 of 27 1 Defendants’ policies and guidelines, which ostensibly inform YouTube’s users about the criteria 2 Defendants use to regulate uploaded content on YouTube, were created and published for any 3 “promotional purpose,” Darnaa, 2015 WL 7753406 at *8, or were disseminated as part of a “more 4 informal type[] of ‘promotion,’” Coastal Abstract, 173 F.3d at 735, or were published as “part of 5 an organized campaign to penetrate the relevant market.” Fashion Boutique, 314 F.3d at 57. 6 Instead, Defendants’ policies and guidelines are more akin to instruction manuals for physical 7 products, which “are not advertisements or promotions” within the meaning of § 1125(a)(1)(B). 8 Interlink Prods. Int’l, Inc. v. Cathy Trading, LLC, 2017 WL 931712 (D.N.J. Mar. 9, 2017). 9 In addition to failing to allege that Defendants’ policies and guidelines constitute 10 “commercial advertising or promotion,” Plaintiff has also failed to sufficiently plead that it “has 11 been or is likely to be injured as a result of the” (allegedly false) policies and guidelines. 12 Southland Sod, 108 F.3d at 1139. Although Plaintiff asserts that it has suffered injury in the form 13 of “lower viewership, decreased ad revenue, a reduction in advertisers willing to purchase 14 advertisements shown on Plaintiff’s videos, diverted viewership, and damage to its brand, 15 reputation and goodwill,” Compl. ¶ 118, nothing in Plaintiff’s complaint suggests that this harm 16 flowed directly from Defendants’ publication of their policies and guidelines. Instead, any harm 17 that Plaintiff suffered was caused by Defendants’ decisions to limit access to some of Plaintiff’s 18 videos, which, as the Court explained above, are not actionable as false advertisements under the 19 Lanham Act. As a result, Plaintiff has failed to state a Lanham Act false advertising claim based 20 on Defendants’ policies and guidelines. 21 22 iii. YouTube’s Statements About Its Viewpoint Neutrality Next, Plaintiff alleges that Defendants violated the Lanham Act by falsely advertising 23 YouTube “as a forum for open expression by diverse speakers” and “an equal and diverse public 24 forum,” Compl. ¶ 117, when in reality Defendants engaged in viewpoint discrimination against 25 Plaintiff. Opp. at 24. In particular, Plaintiff identifies the following statements made by 26 YouTube: (1) “voices matter” and YouTube is “committed to fostering a community where 27 28 21 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