905 F. Supp. 2d 1080
C.D. Cal.2012Background
- CYBERsitter LLC owns CYBERsitter trademark and sued Google and Content-Watch for trademark infringement, false advertising, unfair competition, and unjust enrichment regarding CYBERsitter in Google AdWords ads.
- ContentWatch d/b/a Net Nanny markets the competing Net Nanny product; Google finances ads via sponsored links triggered by keywords, including CYBERsitter terms.
- Plaintiff alleges Google advertised CYBERsitter through ContentWatch’s ads and that users see CYBERsitter in ads when searching for related terms, causing likelihood of consumer confusion.
- In 2006, CYBERsitter’s Milburn clicked through a clickwrap agreement titled Google Advertising Program Terms; the agreement contains a forum selection clause selecting Santa Clara County, California courts and Google’s participation in the AdWords program.
- Plaintiff filed suit on June 18, 2012; Google moved to transfer under Rule 12(b)(3) based on the forum clause or, alternatively, to dismiss state-law claims under Rule 12(b)(6).
- Court denied transfer, held the forum clause does not apply to the current claims, and proceeded to ruling on 12(b)(6) dismissals, ultimately allowing some state-law claims to proceed and dismissing unjust enrichment.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does the forum selection clause apply to the current claims? | Plaintiff argues clause bars forum other than Santa Clara County. | Google contends clause covers disputes arising from Google advertising program broadly. | Clause does not apply to these claims; no transfer. |
| Does CDA immunity apply to Plaintiff's state-law claims? | Plaintiff contends some claims fall outside CDA immunity due to content-related torts. | Google argues immunity covers claims tied to third-party content in ads. | CDA immunity applies to some claims; false advertising may proceed subject to analysis; trademark, contributory infringement, and unfair competition survive to the extent not tied to content. |
| Are Plaintiff's state-law trademark, contributory infringement, and unfair competition claims viable under CDA? | Claims pled as independent torts not dependent on ad content. | Liability should be immunized if based on content contributed by another information content provider. | Claims survive CDA immunity as independent torts. |
| Does CDA immunize Defendant from unjust enrichment claims? | Unjust enrichment independent of content liability may proceed. | Unjust enrichment is not viable as an independent cause of action under California law. | Unjust enrichment claim dismissed without leave to amend. |
| Should Plaintiff’s false advertising claim be dismissed under CDA analysis? | Defendant contributed to false advertising; immunity unclear. | Content-Watch alone created the ads; Google’s role is reducing to conduit. | False advertising claim remains viable; cannot determine CDA immunity at this stage. |
Key Cases Cited
- Argueta v. Banco Mexicano, 87 F.3d 320 (9th Cir. 1996) (12(b)(3) venue dismissal treated as forum-clause enforcement)
- Doe 1 v. AOL LLC, 552 F.3d 1077 (9th Cir. 2009) (interpreting contract terms and forum clauses)
- Roommates.com, LLC v. Fair Housing Council of San Fernando Valley, 521 F.3d 1157 (9th Cir. 2008) (material contribution required to defeat CDA immunity)
- Vallavista Corp. v. Amazon.com, Inc., 657 F. Supp. 2d 1132 (N.D. Cal. 2008) (standard for trademark infringement and CDA considerations)
- Jogani v. Superior Court, 165 Cal.App.4th 901 (Cal. App. 2008) (unjust enrichment as independent claim in California law)
- Lopez v. Smith, 203 F.3d 1122 (9th Cir. 2000) (leave to amend when pleading can cure)
- Jurin v. Google Inc., 695 F. Supp. 2d 1117 (E.D. Cal. 2010) (scope of CDA immunity when content not supplied by another information provider)
- Clarendon Nat. Ins. Co. v. Ins. Co. of the West, 442 F. Supp. 2d 914 (E.D. Cal. 2006) (forum selection clause interpretation standards)