OPINION AND ORDER
This case, arising under the Lanham Act and the Racketeer Influenced and Corrupt Organizations Act (“RICO”), exemplifies a new species of litigation spawned by the age of the Internet. The plaintiffs in this case are Ascentive, LLC (“Ascentive”), an Internet software company, and Classic Brands, LLC (“Classic”) a mattress manufacturer. Ascentive and Classic (“plaintiffs”) bring suit against Opinion Corp. and three of its officers: (1) Michael Podolsky (“Podolsky”), Chief Executive Officer (“CEO”); (2) Alex Syrov, President; and (3) Joanna Clark Simpson, Marketing Director (collectively “defendants” or “PissedConsumer”), operators and owners of a consumer review website called www. PissedConsumer.com.
Plaintiffs move for a preliminary injunction pursuant to Rule 65 of the Federal Rules of Civil Procedure to disable Pissed-Consumer webpages containing negative reviews of their products at the following web addresses: Ascentive.PissedConsumer.com, FinallyFast. PissedConsumer.com; ' Dormia-mattress.PissedConsumer.com; and Dormia.PissedConsumer.com. Plaintiffs contend that PissedConsumer’s use of their registered trademarks in the
For the following reasons, plaintiffs’ motions for a preliminary injunction are hereby DENIED.
I. BACKGROUND
Ascentive is a Pennsylvania-based corporation that develops and sells computer software products that enhance and protect personal computers by, among other things, improving system performance, increasing computer speed, and ensuring privacy. Complaint dated Sept. 24, 2010 (“Ascentive Compl.”) ¶ 15 (Dkt. No. 1). Ascentive owns a number of websites, including www.ascentive.com and www. finallyfast.com, where its computer software products are advertised, sold, and made available for download. Id. ¶21. Ascentive also has registered trademarks in the names (1) Ascentive; (2) Finally-Fast.com; (3) Finally Fast; and (4) FinallyFast. Id. ¶¶ 17-18. Approximately ninety-nine percent of Ascentive’s revenue comes from its online sales, id. at ¶ 23, the majority of which occur after consumers search for its product using a search engine like Google, Declaration of Adam Schran dated November 19, 2010 (“Schran Deck”) ¶ 6 (Dkt. No. 10-4).
Classic is a Maryland-based limited liability company that manufactures specialty sleep products, among which are Dormía brand mattresses. Classic Complaint dated Nov. 30, 2010 ¶¶ 4, 15 (“Classic Compl.”) (Dkt. No. 1). Classic owns a registered trademark in the name Dormía and operates a number of websites, including www.dormia.com and www. dormiamattress.com, on which it uses the mark to promote its sleep products and inform consumers of retail locations where they can purchase them. Id. ¶¶ 17, 19. Classic relies heavily on internet marketing for sales of its products both online and through conventional retail outlets. Declaration of Michael Zippelli dated Dec. 3, 2010 ¶ 10 (“Zippelli Deck”) (Dkt. No. 5-8).
PissedConsumer maintains a website, www.PissedConsumer.com, that invites consumers — both anonymous and identified' — to post reviews of businesses. Ascentive Compl. ¶¶ 25-26, 35. PissedConsumer advertises itself as a consumer review website that allows consumers to “make better choices” between competing products and gives consumers an “empowering” and “unbiased” view of companies and products. Id. ¶29. It makes no attempt to discern which complaints are legitimate and which complaints are false. Id. ¶ 34.
PissedConsumer creates webpages for each of the companies for which there are reviews in the form of “subdomains,” or domain names that are part of the larger PissedConsumer domain name at Pissed-Consumer.com. Id. ¶ 39.
Third-party users’ reviews of a company and its products appear at the bottom of each company’s PissedConsumer webpage. In the case of plaintiffs, their PissedConsumer pages contained a number of comments — some of which are “false ... really unhelpful and discouraging to [their] prospective customers ... [and] the public.” Ascentive Tr. at 22-23. While Ascentive alleges that PissedConsumer actually creates the purported third-party reviews on the Ascentive.PissedConsumer.com page, Ascentive Compl. ¶ 32, Classic merely states that “PissedConsumer encourages consumers to create negative postings on the PissedConsumer website .... ” Classic Compl. ¶ 27. PissedConsumer denies these allegations. While the fact that these comments exist at all is troubling enough to plaintiffs, more troubling to them is the fact that PissedConsumer’s webpages containing these comments appear very high on the results lists that search engines such as Google provide after a search engine user types in plaintiffs’ names or those of their products. Ascentive Tr. at 18; Transcript of Hearing before the Court on Jan. 1, 2011 at 30 (“Classic Tr.”).
In order to allow companies to deal with negative postings on the PissedConsumer website, PissedConsumer provides what it calls “premium reputation management services” to “assist companies with their online reputation[s].” Ascentive Compl. ¶ 57. The reputation management services (“RMS”) allow companies “to tell [their] side of the story and address complaints received from consumers.” Id,.
In or around June 2010, after learning of negative comments on the PissedConsumer webpages dedicated to their companies, employees of plaintiffs each contacted PissedConsumer to learn more about its RMS and how they could respond to or otherwise engage unhappy consumers. Declaration of Ian Singer dated Nov. 19, 2010 ¶¶2, 4 (“Singer Decl”) (Dkt. No. 10-4); Zippelli Decl. ¶¶ 9, 11. Adam Schran (“Schran”), Ascentive’s CEO and Michael Zippelli, Classic’s CEO, testified that upon contacting PissedConsumer, they were informed that in order to learn more about PissedConsumer’s RMS, they would be required to sign a Non-Disclosure Agreement (“NDA”). Ascentive Tr. at 28; Classic Tr. at 77.
Ascentive agreed to the terms of the NDA and, after doing so, received a copy of PissedConsumer’s Service Offering that outlined the details of the services that PissedConsumer would perform as part of its RMS. Ascentive Tr. at 28. In exchange for $2,500 per month over three years, plus an upfront fee of $30,000-a total of $120,000-Ascentive would receive the following services:
(1) Notification of every review made on the Ascentive.PissedConsumer web-page and a “grace period” giving Ascentive the ability to address negative complaints before they are publicly posted on the site;
(2) Removal of all complaints made by commenters who refuse to allow Ascentive to contact them to address their complaints;
(3) PissedConsumer’s posting of complaints addressed by Ascentive in a way that highlights resolution of the problem, rather than the problem itself. If this feature is in place, visitors to the webpage will only be able to see the original complaint by clicking through to it; and
(4) Change of the title of the main landing page where consumer reviews are posted from Ascentive@Pissed Consumer.com to “Ascentive Reviews” and the ability to change text on the page describing the company and its products and services.
Ascentive Tr. Ex. 2 at 7-12. Ascentive also alleges that Ian Singer, Ascentive’s Director of Marketing, on or about June 15th or 17th, 2010, spoke to Podolsky, PissedConsumer’s CEO, regarding the RMS, and Podolsky represented that “PissedConsumer would remove negative complaints in exchange for payment and Ascentive’s participation in its [RMS].” Ascentive Compl. ¶ 61. PissedConsumer denies this allegation.
No one from Classic, on the other hand, signed the NDA. Zippelli Decl. ¶ 13. Instead, Zippelli opened an account on PissedConsumer’s site and posted a complaint about the site itself, even paying a five dollar fee to ensure that his post received “preferred positioning” and that Pissed-Consumer thus would prominently display the complaint. Id. ¶ 14; Classic Tr. at 81-82. Shortly after Zippelli posted the comment, however, PissedConsumer refunded the fee Zippelli paid and deleted both Zippelli’s PissedConsumer account and the negative review he had posted. Classic Tr. at 82.
On December 1, 2010, Classic filed a complaint against PissedConsumer asserting substantive RICO, RICO conspiracy, and Lanham Act claims, as well as state law claims for trademark infringement, unfair competition, false designation of origin, interference with contractual and prospective contractual relations, and unjust enrichment. Classic’s complaint contains many allegations identical or nearly identical to those of Ascentive. Shortly after filing its complaint, on December 7, 2010, Classic filed a motion for a preliminary injunction, seeking to disable the pages operated by PissedConsumer at dormiamattress.pissedconsumer.com and dormia.pissedconsumer.com. Memorandum of Law in Support of Motion for Preliminary Injunction dated Dec. 3, 2010 (“Classic Mem.”) (Dkt. No. 5-2). PissedConsumer filed its opposition on January 5, 2010. Memorandum of Law in Opposition to Plaintiffs Motion dated January 5, 2010 (Dkt. No 17). The Court held a hearing regarding Classic’s motion for a preliminary injunction on January 11, 2011.
On March 8, 2011, Magistrate Judge Gold consolidated Classic’s actions against PissedConsumer with that of Ascentive pursuant to Fed.R.Civ.P. 42(a).
On April 7, 2011 and April 15, 2011, Ascentive and Classic sought to supplement the record underlying their preliminary injunction motions with evidence that Chitika.net (“Chitika”), an Internet advertising company, places advertising for plaintiffs’ competitors on PissedConsumer’s site and that these advertisements themselves contain plaintiffs’ trademarks. Ascentive’s Memorandum in Support of its Motion for Leave to Supplement the Record dated Apr. 7, 2011 at 4 (“Ascentive Supp. Mem.”) (Dkt. No. 39-2); Classic’s Memorandum in Support of its Motion for Leave to Supplement the Record dated Apr. 15, 2011 (“Classic Supp. Mem.”) (Dkt. No. 41).
PissedConsumer filed its opposition papers in response to these submissions on April 18, 2011 and June 24, 2011, respectively, and plaintiffs on April 25, 2011 and July 7, 2011 filed their replies. Def.’s Memorandum of Law in Opposition to Motion to Supplement the Record dated Apr. 18, 2011 (“Def. Supp. Opp’n”) (Dkt. No. 44); Def.’s Memorandum of Law in Opposition to Motion to Supplement the Record dated June 24, 2011 (Dkt. No. 57); Ascentive Reply Memorandum of Law dated Apr. 22, 2011 (“Ascentive Supp. Reply”) (Dkt. No. 48); Classic Reply Memorandum of Law dated July 7, 2011 (Dkt. No. 58).
II. DISCUSSION
A. Preliminary Injunction Standard
A court may issue a preliminary injunction “only if the plaintiff has demon
Irreparable injury has been defined as harm where “remedies available at law, such as monetary damages, are inadequate to compensate” the plaintiff for his or her injury. Salinger,
The Court first turns to the threshold question of whether plaintiffs have demonstrated a likelihood of success on the merits or sufficiently serious questions going to the merits to make them a fair ground for litigation and will address plaintiffs’ claims in turn below.
B. Lanham Act Claims
Plaintiffs assert two causes of action under the Lanham Act, one for trademark infringement under 15 U.S.C. § 1114(1)
As for confusion in the trademark infringement context, “[t]he crucial issue ... is whether there is any likelihood that an appreciable number of ordinarily prudent purchasers are likely to be misled, or indeed simply confused, as to the source of the goods in question.” Starbucks,
Plaintiffs claim that PissedConsumer’s use of their trademarks in PissedConsumer’s subdomains (e.g., http://ascentive. pissedconsumer.com), metadata (also referred to as metatags),
1. There is no Likelihood of Confusion
In assessing the likelihood of confusion, a court should generally consider the following factors established by Judge Friendly in Polaroid Corp. v. Polarad Elec. Corp.,
While the factors of the strength of plaintiffs’ marks and the degree of similarity between the marks weigh in favor of plaintiffs, a number of the other Polaroid factors weigh heavily against them.
The factor of bad faith also weighs against plaintiffs. In the trademark context, “[b]ad faith generally refers to an attempt by a junior user of a mark to exploit the good will and reputation of a senior user by adopting the mark with the intent to sow confusion between the two companies’ products.” Star Indus.,
Indeed, it is clear that PissedConsumer is not using plaintiffs’ marks as source identifiers at all. The Court will discuss this point and why PissedConsumer’s use of plaintiffs’ marks in (1) domain names; (2) webpage content; (3) metatags; and (4) in connection with the advertising of their competitors does not result in a likelihood of confusion in further detail below.
2. Use of Marks in Domain Names & Webpage Content
"Where, as here, the domain name of a website itself — Ascentive.PissedConsumer.com or Domia.PissedConsumer.com — makes clear that it is not affiliated with trademarks the domain name incorporates and indeed is critical of the companies that own the marks, the use of the marks does not present a likelihood of confusion. See, e.g., Taubman Co. v. Webfeats,
This same conclusion holds true for PissedConsumer’s use of the plaintiffs’ marks in the content of the PissedConsumer site itself. See MCW, Inc. v. Badbusinessbureau.com, L.L.C., No. 02 Civ. 2727,
The decision in Cintas Corporation v. Unite Here,
The court dismissed Cintas’s trademark claims, reasoning that while the materials available on the union’s site “may disparage Cintas, the likelihood that Cintas’s actual or potential customers would be confused about who provides CINTAS goods and services is remote.” Id. at 579. The court stressed, moreover, that there is no
The same is true here. There is little likelihood that a potential consumer visiting PissedConsumer would be confused about whether it was the source of plaintiffs’ goods or whether Ascentive or Classic sponsored or otherwise approved of PissedConsumer’s use of their marks. Indeed, the domain names here, like eintasexposed.com or taubmansucks.com, bespeak negativity concerning plaintiffs’ products. So too does PissedConsumer’s logo — a frowning red cartoon face with a furrowed brow and a speech bubble containing characters in place of an expletive — and PissedConsumer’s tagline: “TELL THE WORLD. BE HEARD.” The comments posted on the site are also decidedly negative. See Ascentive Mem. (Arena Decl.) Ex. 11, at 3 (“Ascentive software is junk .... I would say that this company has been ripping people off since they began.”); Classic Mem. (Panjwani Deck) Ex. 4, at 2 (“Dormía Mattress— Countrywide Sales Fraud, Inferior product. We purchased our Dormía latex/foam mattress 7/2008. It has a worn path and sags causing back and hip pain in the morning.”). It strains credulity that an Internet user would believe that plaintiffs would sponsor or otherwise approve of a site that contains such criticisms.
3. Use of Marks in Metatags
As for PissedConsumer’s use of plaintiffs’ marks in, its metatags, plaintiffs contend that the use causes PissedConsumer’s website to appear prominently in search results for their marks and ultimately results in “initial interest confusion.” Ascentive Mem. at 19-20; Classic Mem. at 18-19. Plaintiffs rely on Brookfield Communications v. West Coast Entertainment Corp.,
Initial interest confusion in the Internet context “arises when a consumer who searches for the plaintiffs website with the aid of a search engine is directed instead to the defendant’s site because of a similarity in the parties’ website addresses.” Savin,
Initial interest confusion is unlikely here. As an initial matter, PissedConsumer cannot divert Internet users away from plaintiffs’ sites because PissedConsumer’s site is not in competition with those of plaintiffs. See Bihari,
Additionally, for the reasons already discussed above, no reasonable consumer searching for either of plaintiffs’ sites would be diverted to PissedConsumer’s webpages in light of their domain names; the PissedConsumer pages and all their content were clearly critical of plaintiffs. See Falwell,
Finally, the circumstances here are unlike those in Brookfield. In that case, the Ninth Circuit addressed whether the defendant’s use of “MovieBuff ’ in the meta-tag code on its website infringed the “MovieBuff” mark of the plaintiff, one of its competitors.
Using another’s trademark in one’s metatags is much like posting a sign with another’s trademark in front of one’s store. Suppose [defendant] West Coast’s, competitor (let’s call it “Blockbuster”) puts up a billboard on a highway reading — “West Coast Video: 2 miles ahead at Exit 7” — where West Coast is really located at Exit 8 but Blockbuster is located at Exit 7. Customers looking for West Coast’s store will pull off at Exit 7 and drive around looking for it. Unable to locate West Coast, but seeing the Blockbuster store right by the highway entrance, they may simply rent there. Even consumers who prefer West Coast may find it not worth the trouble to continue searching for West Coast since there is'a Blockbuster right there.
Id. at 1064.
This analogy and Brookfield itself have been roundly criticized by courts and commentators. See, e.g., Michael Grynberg, Trademark Litig. as Consumer Conflict, 86 N.Y.U.L.Rev. 60, 86 (2008) (citations omitted) (noting that “Brookfield and its progeny have been heavily criticized for expanding initial interest confusion doctrine into Internet cases in which the case for any consumer harm is doubtful”); Playboy Enters. v. Netscape Commc’ns Corp.,
In any event, unlike in Brookfield, plaintiffs and PissedConsumer are not competitors. In such circumstances, as the Ninth Circuit acknowledged, “the likelihood of confusion would probably be remote. A Web surfer who accessed “moviebuff.com” and reached a website advertising the services of Schlumberger Ltd. (a large oil drilling company) would be unlikely to think that Brookfield had entered the oil
Finally, the technological landscape today is vastly different than it was in 1999 when the Ninth Circuit decided Brookfield. The Ninth Circuit characterized the interaction between search engines and meta-tags as follows: “The more often a term appears in the metatags and in the text of the web page, the more likely it is that the web page will be ‘hit’ in a search for that keyword and the higher on the list of ‘hits’ the web page will appear.” Plaintiffs make this point in their submissions. Ascentive Mem. at 20 (“PissedConsumer intentionally uses Ascentive’s distinctive trademarks in its website metadata to cause the website to appear prominently in search results for trademarks such as ‘Ascentive.’ ”); Classic Mem. at 19 (“Pissed-Consumer uses Classic’s distinctive DOR-MIA trademark in its website metadata to cause the website to appear prominently in search results for trademarks such as “DORMIA” in order to redirect traffic towards its site.”).
These contentions reflect a flawed understanding of the operation of search engines. Although early search engines— such as those in Brookfield — used to rely heavily on metatags to find and rank websites based on relevancy to the search terms provided by the user, “modern search engines make little if any use of metatags.” J. Thomas McCarthy, McCarthy on Trademarks and Unfair Competition § 25:69 (4th ed.2003); see also Anne Gilson Lalonde & Jerome Gilson, Gilson on Trademarks § 7A.08 (2009 ed.) (“Since at least 2002 ... search engines such as Google generally do not index web sites based on their meta keywords tags.”). Instead, search engines today primarily use algorithms that rank a website by the number of other sites that link or point to that website. See, e.g., Network Automation, Inc. v. Advanced Sys.,
Closely connected with plaintiffs’ arguments concerning PissedConsumer’s use of metatags to affect search engine results is their contention that PissedConsumer engaged in improper SEO tactics to increase PissedConsumer’s position in search engine results lists.
Witness: My testimony about the misleading date is that your client, using unethical Black Hat techniques, posted on Twitter, complaints that are dated as being 2010, then when you click on them, they go to complaints from 2008. They’re dredging up old complaints to make it seem to Google that they’re new and relevant.
Counsel: Is it your testimony that it’s an unethical Black Hat technique to use Twitter to link to information that was posted on the internet on a date other than the date of the Twitter publication?
Witness: It can be.
The Court: Either it is or it isn’t. When you say it can—
Witness: Under some circumstances yes, and under some circumstance [sic] no. If the date was off by a few days, that would be ethical. If the date is off by a few years, that’s unethical.
Counsel: What’s unethical about it?
Witness: Posting an old complaint as a new one? It breaches the trust of Twitter. Twitter is supposed to be timely, relevant content about stuff that’s happening now. It is not supposed to be a way for people to make money by reposting old complaints, so they can make money from the ads on that site.
Counsel: Is it your understanding that it’s against the law to link to an old complaint on Twitter?
Witness: I didn’t speak to the law.
Counsel: You realize why we’re here, though, today, right?
Tr. at 99-100. While it may be — and likely is — the case that PissedConsumer’s SEO practices are intended to make its webpages seem more relevant to search engines than they actually are and these methods may indeed violate the search engines’ terms of services, the remedy for this conduct is not trademark law but instead with the search engines themselves. The Court stated as much at Ascentive’s preliminary injunction hearing:
I’d like to know why, if at all, this so-called trick being played on Google isn’t something that Google has legitimate complaint [sic] about and not the object of the complaints.
What I’m hearing is it’s Google that’s being, in a way, misled or tricked — and I don’t know how precisely how Google is being tricked, except that they’re putting something higher than they might otherwise have.... I don’t know what the trick is being played [sic] on the consumer. I don’t know what it is that constitutes some trick or misleading or confusion as far as the consumer is concerned.
Ascentive Tr. at 111-12. If the search engines conclude that PissedConsumer’s SEO practices are indeed in violation of their terms of service or guidelines, they can take certain steps to punish Pissed-Consumer including lowering the site’s place in their search result lists or removing the site from their lists completely— the so called “death penalty.” See, e.g., Segal, supra n. 6, at BUI (describing Google’s temporary removal of BMW from its search result list after discovering that BMW had used an improper black hat SEO strategy to bolster BMW’s position in the list); Greg Lastowka, Google’s Law, 73
In any event, PissedConsumer’s placement on a search engine’s results list— whether on its first page or last — is ultimately irrelevant because there is no likelihood that a consumer who visits PissedConsumer pages would believe that Ascentive or Classic sponsored or otherwise approved of the use of their marks on pages with such decidedly negative names and content. In sum, PissedConsumer’s use of plaintiffs’ marks in its metatags is unlikely to cause initial interest confusion.
4. Use of Marks in Connection with Advertising
Plaintiffs also contend that PissedConsumer has infringed their marks by displaying banner and pop-up advertisements through the Chitika advertising network that contain plaintiffs’ marks in the text of the advertisements themselves.
The parties dispute precisely how Chitika functions but do not dispute that it is Chitika — not PissedConsumer' — 'that ultimately places the advertising containing plaintiffs’ marks on PissedConsumer’s site and thus would be responsible for any direct infringement of plaintiffs’ marks. Compare Declaration of Kyle Reiff (of Ascentive) dated Apr. 6, 2011 at 2 (“When a user types in a search for ‘Ascentive’ [in a site’s internal search engine] that search data is sent to Chitika.net and their network software returns an ad relevant to searches on ‘Ascentive.’ ”), with Affirmation of Michael Podolsky (of PissedConsumer) dated April 17, 2011 ¶¶ 11, 28 (Dkt. No. 44-2) (“PissedConsumer exercises no control over the [advertisements] offered by Chitika.net .... [A]d networks, and not PissedConsumer, are exclusively responsible for determining which advertisement appears in the location on PissedConsumer’s website and its overall relevancy to each user.”). The implication of these statements is that any direct infringement
The Supreme Court in Inwood described contributory trademark infringement as follows: “[A] manufacturer or distributor [who] intentionally induces another to infringe a trademark, or ... continues to supply its product to one whom it knows or has reason to know is engaging in trademark infringement ... is contributorially responsible for any harm done as a result of the deceit.” Inwood Labs., Inc. v. Ives Labs., Inc.,
Put simply, plaintiffs are unlikely to succeed on any contributory infringement claim against PissedConsumer because they do not sufficiently allege, let alone make, such a claim in their complaints. Where a plaintiffs claims cannot survive a motion to dismiss, they fail a fortiori to establish a likelihood of success on the merits. Klein v. City of New York, No. 10 Civ. 9568(PAE)(JLC),
Plaintiffs’ complaints contain allegations regarding third-party advertisements on PissedConsumer’s website. Ascentive Compl. ¶ 126 (“PissedConsumer’s unauthorized and willful use of Ascentive’s trademarks in connection with the display of third-party advertisements, including advertisements for the products of Ascen
But the complaints contain no allegations, as they must, that pertain to “the extent of control exercised by [PissedConsumer] over the third party’s means of infringement” or that PissedConsumer was aware of “specific instances of actual infringement” and continued to supply its service after it knew or should have known that it was being used to infringe plaintiffs’ marks. H.E.R. Accessories Ltd.,
In sum, for all of these reasons, plaintiffs are unlikely to succeed on the merits of their Lanham Act claims.
C. State Law Claims & the Communications Decency Act
Plaintiffs assert a number of other state law claims in addition to their claims for trademark infringement, unfair competition, and false designation of origin. Ascentive asserts claims for violations Pennsylvania’s unfair trade practices and consumer protection law; interference with contractual and prospective contractual relations; and unjust enrichment. Ascentive Compl. ¶¶ 142-63. Meanwhile, Classic asserts claims for interference with contractual and prospective contractual relations and unjust enrichment. Classic Compl. ¶¶ 128-42.
Section 230 of the CDA immunizes providers of interactive computer services against liability arising from content created by third parties; it provides that “[n]o provider ... of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.” 47 U.S.C. § 230(c). It further provides that “[n]o cause of action may be brought and no liability may be imposed under any State or local law that is inconsistent with this section.” Id. § 230(e)(3). This grant of immunity applies only if the interactive computer service provider is not also an “information content provider,” which is defined as someone who is “responsible, in whole or in part, for the creation or development of’ the offending content. Id. § 230(f)(3).
Plaintiffs argue that PissedConsumer is an “information content provider” because it “created, encouraged, developed and/or materially contributed” to content on its site. Ascentive Reply at 15. They also maintain that PissedConsumer has failed to establish that it is an “interactive computer service.” Id. at 16. Before addressing these contentions, the Court will first provide a brief overview of Section 230 of the CDA.
1. Overview of the CDA
Section 230 of the CDA was enacted, in part, to “preserve the vibrant and competitive free market that presently exists for the Internet.” 47 U.S.C. § 230(b)(2). Congress enacted Section 230, in part, as a response to a New York state court decision, Stratton Oakmont, Inc. v. Prodigy Servs. Co.,
To further these goals, Congress declined to extend traditional defamation law, as applied to classical information providers such as newspapers, magazines, television, and radio stations to the Internet. Gucci Am., Inc. v. Hall & Assocs.,
In one of the earliest cases involving the CDA, the Fourth Circuit interpreted § 230(e)(3) to bar all state suits sounding in tort. Zeran,
Congress recognized the threat that tort-based lawsuits pose to freedom of speech in the new and burgeoning Internet medium. The imposition of tort liability on service providers for the communications of others represented, for Congress, simply another form of intrusive government regulation of speech. Section 230 was enacted, in part, to maintain the robust nature of Internet communication and, accordingly, to keep government interference in the [new] medium to a minimum.
Id. at 330. The reasoning of Zeran is now accepted by courts across the country, and “[t]he broad reach of the CDA to bar a panoply of torts is supported by other courts that have considered the CDA’s reach.” See, e.g., Asia Econ. Inst.,
2. Interactive Computer Service
Critical to understanding whether Section 230 applies here is determining whether PissedConsumer is an “interactive computer service” or “information content provider,” or both. Courts have different understandings of what Congress intended by the phrase “interactive computer service” but generally apply it broadly. Section 230(f)(2) defines an “interactive computer service” as any:
information service, system, or access software provider that provides or enables computer access by multiple users to a computer server, including specifically a service or system that provides access to the Internet and such systems operated or services offered by libraries or educational institutions.
Courts generally conclude that a website falls within this definition. See, e.g., Nemet Chevrolet, Ltd. v. Consumeraffairs.com, Inc.,
3. Information Content Provider
A provider of an “interactive computer service,” however, may claim immunity only with respect to “information provided by another information content provider.” 47 U.S.C. § 230(c)(1); see also Carafano v. Metrosplash.com., Inc.,
While an overt act of creation of content is easy to identify, determining what makes a party responsible for the “development” of content under § 230(f)(3) is unclear, and the CDA does not define the term. Accordingly, courts often look to the totality of the circumstances in making the determination. See, e.g., Roommates.com,
Applying these principles here, the Court concludes that PissedConsumer is not an “information content provider” under Section 230 with respect to the negative postings concerning plaintiffs at issue in this case. Classic does not claim or even imply that PissedConsumer creates or authors the negative postings on its website; rather it claims that “PissedCon
While it is true that “Section 230(c) immunity is not so broad as to extend to an interactive computer service that ... takes an active role in creating or developing the content at issue,” Badbusinessbureau.com,
Plaintiffs also claim that PissedConsumer acted as an “information content provider” by, among other things, (1) encouraging negative complaints; (2) inviting consumers to post public complaints on its website; (3) displaying those negative postings as prominently as possible absent participation in its RMS; and (4) increasing the prominence of PissedConsumer webpages by various allegedly improper means, including by using plaintiffs’ marks. Ascentive Compl. ¶¶ 26, 32, 39-54; Classic Compl. ¶¶ 21, 27, 34-50; Ascentive Reply at 15. This claim is similarly unavailing.
Ascentive cites Badbusinessbureau.com in support of its position but that case involved factual circumstances distinguishable from those here. There, the defendant website — a consumer complaint forum — not only did not dispute that it created, developed, and posted defamatory information concerning plaintiffs business but it also actively encouraged by email a consumer to take photos of a business owner, his car, and his license plate in front of his store, so that the defendant could include these photos on the website beside headings such as “Con Artists,” “Scam,” and “Ripoff.”
The defendants cannot disclaim responsibility for disparaging material that they actively solicit. Furthermore, actively encouraging and instructing a consumer to gather specific detailed information is an activity that goes substantially beyond the traditional publisher’s editorial role. The defendants are .clearly doing more than making minor alterations to a consumer’s message. They are participating in the process of developing information. Therefore, the defendants have not only incurred responsibility for the information developed and created by consumers, but have also gone beyond the publisher’s role and developed some of the defamatory information posted on the websites.
Id. Here, PissedConsumer does invite third-party content providers to submit negative reviews; however, its actions are
Although there may be circumstances where modification of the display of content on a website constitutes the “development” of information, this did not occur here. The fact that the defendants invite postings and then in certain circumstances alter the way those postings are displayed is not the “development” of information for Section 230 purposes. See Yelp!
For all of the foregoing reasons, Aseentive is unlikely to succeed on its claims for violations of Pennsylvania’s unfair trade practices and consumer protection law, and both Ascentive and Classic are unlikely to succeed on their state law claims for interference with contractual and prospective contractual relations and unjust enrichment. Likewise, for the same reasons, plaintiffs have failed to establish sufficiently serious questions going to the merits of these claims to make them a fair ground for litigation
D. RICO Claims
The Court next turns to whether plaintiffs are likely to succeed on their claims
PissedConsumer responds that plaintiffs are unlikely to succeed on these claims for several reasons: that (1) plaintiffs have suffered no damages as a result of the alleged racketeering activity; (2) their complaints allege only one predicate act of racketeering-the scheme to “extort” plaintiffs as a condition of removing negative comments about its products; (3) the complaints fail to sufficiently allege continuity of the predicate acts; and (4) the underlying predicate acts are not satisfied. Def. Opp’n at 28-31. The Court agrees that plaintiffs are unlikely to succeed on their RICO claims.
A substantive civil RICO claim has three elements: (1) a violation of the RICO statute, 18 U.S.C. § 1962; (2) an injury to business or property; and (3) that the injury was caused by the violation of Section 1962. Spool v. World Child Int’l Adoption Agency,
Most fundamentally, plaintiffs RICO claims are unlikely to succeed because plaintiffs have not sufficiently alleged, let alone established, that Pissed-Consumer committed the alleged RICO predicate acts of commercial bribery or extortion.
A person who holds himself out to the public as being engaged in the business of making disinterested selection, appraisal, or criticism of commodities or services commits a misdemeanor of the second degree if he solicits, accepts or agrees to accept any benefit to influence his selection, appraisal or criticism.
This predicate act is obviously insufficient because PissedConsumer does not hold itself out “making ... criticism of commodities or services;” instead, it provides a forum for others to make such criticisms.
With respect to extortion, plaintiffs rely on the Hobbs Act, which provides:
Whoever in any way or degree obstructs, delays, or affects commerce or the movement of any article or commodity in commerce, by robbery or extortion or attempts or conspires so to do, or commits or threatens physical violence to any person or property in furtherance of a plan or purpose to do anything in*478 violation of this section shall be fined under this title or imprisoned not more than twenty years, or both.
18 U.S.C. § 1951(a). Extortion means “the obtaining of property from another, with his consent, induced by wrongful use of actual or threatened force, violence, or fear, or under color of official right.” Id. § 1951(b)(2). The elements of a claim for extortion under the Hobbs Act are that the defendant “ ‘(1) induced [the victim], with [the victim’s] consent, to part with property, (2) through the wrongful use of actual or threatened force, violence or fear (including fear of economic loss), (3) in such a way as to adversely effect interstate commerce.’ ” United States v. Int’l Longshoremen’s Ass’n,
Plaintiffs allege that PissedConsumer attempted to obtain membership in its RMS program by encouraging, controlling, and approving negative website content that caused -fear of economic loss. Ascentive Compl. ¶ 105-08; Classic Compl. ¶ 91-93. Yet plaintiffs fail to articulate how PissedConsumer’s actions constitute extortion. Ascentive’s counsel acknowledged at its preliminary injunction hearing that there is nothing that requires a website such as PissedConsumer to post responses to complaints on its site. Ascentive. Tr. at 107. And plaintiffs have failed to establish that any law forbids PissedConsumer from allowing companies to post responses to the complaints for a price or that doing so constitutes extortion. Nor have plaintiffs established that they have a right to pursue their business interests free from PissedConsumer’s activitiés; indeed, plaintiffs do not have the right to operate free from criticism' — -that which they claim is causing them fear of economic loss. See, e.g., Cintas,
Plaintiffs thus have established neither a likelihood of success on any of their claims nor sufficiently serious questions going to the merits of their claims to make them a fair ground for litigation. Consequently, the Court need not address whether the balance of hardships tip decidedly in plaintiffs’ favor, whether plaintiffs will suffer “irreparable injury in the absence of an injunction,” or whether an injunction is in the public interest, see Salinger,
III. CONCLUSION
For all of the foregoing reasons, plaintiffs’ motions for a preliminary injunction are hereby DENIED. This decision is without prejudice to plaintiffs’ opportunity to seek a permanent injunction after the parties have had the benefit of full discovery. While the Court finds some aspects of PissedConsumer’s business practices troubling and perhaps unethical, it has been unable to find a legal remedy for conduct that may offend generally accepted standards of behavior. “[Ethical] obligations that exist but cannot be enforced are ghosts that are seen in the law but
SO ORDERED.
Notes
. "Also known colloquially as a 'Web address,' a domain name is a combination of characters that a person types into a computer software program called a browser, in order to gain access to a Web site, a set of computer files through which another person
. All references to ascentive.pissedconsumer.com also refer to finallyfast.pissedconsumer.com, and all references to dormia.pissedconsumer.com also refer to dormia-mattress.pissed consumer.com. Additionally, all references to Ascentive are also to Finally-Fast.
. Google offers two advertising products: Ad-Words and AdSense. AdWords allows advertisers to display advertisements on Google’s search results pages and on the sites of Google's third-party partners. Woods v. Google Inc., No. 11 Civ. 1263 (JF),
. A person searching for a website of a business or a product can enter the name of the entity or the product’s trademark in a search engine such as Google or Yahoo!. After the person prompts the search engine to begin its search, the search engine will provide a list of links to websites in order of their relevance to the search terms. These lists or rankings, as they are sometimes called, are the result of each search engine’s algorithm — a complex mathematical formula — the exact mechanics of which are often considered a trade secret by search engine companies such as Google, the leader among search engines. For example, "Google’s algorithm takes into account dozens of criteria, many of which the company will not discuss. But it has described one crucial factor in detail: links from one site to another.” David Segal, The Dirty Little Secrets of Search, N.Y. Times, Feb. 12, 2011 at BU 1.
*456 If you own a Web site, for instance, about Chinese cooking, your site's Google ranking will improve as other sites link to it. The more links to your site, especially those from other Chinese cooking-related sites, the higher your ranking. In a way, what Google is measuring is your site’s popularity by polling the best-informed online fans of Chinese cooking and counting their links to your site as votes of approval.
Id. However, "even links that have nothing to do with Chinese cooking can bolster your profile if your site is barnacled with enough of them," and this can be achieved, among other ways, by a website owner paying to have links to its site placed on sites around the Internet. Id.
. SEO "basically means taking steps to ensure that your website is shown first, or as close to first as possible, when the topic of your website is searched for on an internet search engine such as Google or Yahoo!.” Silver v. Brown,
"White hat” SEO techniques, such as redesigning content on a website to attract search engines, are permissible under search engines’ terms of service and are considered a legitimate way to increase a website’s ranking in search engine results. James Grimmelman, The Structure of Search Engine Law, 93 Iowa L.Rev. 1, 13 (2007). "Other, 'black hat’ techniques involve mimicking the superficial features that search engines use as proxies for quality content.” Id. For example, some site owner’s create " ‘link farms’: sets of thousands of sites and pages pointing to each other, mimicking a community of real users and hoping to trick search engines into treating them as authoritative, popular sources of information.” Id. "Black hat” techniques are impermissible under search engines’ terms of service, and search engines will impose penalties on companies that engage in such tactics, sometimes even removing the website from its search results altogether. Segal, supra, at BUI.
. Twitter is a social networking service that allows its users to post messages using short communications called "tweets,” and to read the tweets of other users. Users can, among other things, monitor, or "follow,” other users' tweets. Twitter, About Twitter, http:// twitter.com/about (last visited Dec. 13, 2011).
. This business model does not appear to be particularly unique. RipoffReports.com, another consumer review site, offers what it calls its "Corporate Advocacy Program” ("CAP”) to businesses receiving negative reviews on its site. Asia Econ. Inst. v. Xcentric Ventures LLC, No. 10 Civ. 01360(SVW)(PJW),
. Section 1114(1) creates a cause of action against any person who shall, without the consent of the trademark registrant:
use in commerce any reproduction, counterfeit, copy, or colorable imitation of a registered mark in connection with the sale, offering for sale, distribution, or advertising of any goods or services on or in connection with which such use is likely to cause confusion, or to cause mistake, or to deceive;
. Section 1125(a)(1) creates a cause of action against
Any person who, on or in connection with any goods or services, or any container for goods, uses in commerce any word, term, name, symbol, or device, or any combination thereof, or any false designation of origin, false or misleading description of fact, or false or misleading representation of fact, which — (A) is likely to cause confusion, or to cause mistake, or to deceive as to the affiliation, connection, or association of such person with another person, or as to the origin, sponsorship, or approval of his or her goods, services, or commercial activities by another person,....
. There is no dispute regarding the validity of plaintiffs' marks or that PissedConsumer used the marks in commerce and in connection with goods and services.
. A metatag is "a component of a webpage's programming that contains descriptive information about the webpage which is typically not observed when the webpage is displayed in a web browser.” Venture Tape Corp. v. McGills Glass Warehouse,
. The strength of a trademark is assessed with reference to its distinctiveness, and, due to their registration, plaintiffs’ marks are presumed to be distinctive. See Lois Sportswear, U.S.A., Inc. v. Levi Strauss & Co.,
. Schran, Ascentive's CEO, acknowledged, moreover, that Ascentive received no complaints from consumers who visited Ascentive.PissedConsumer.com and clicked on an advertisement for one of Ascentive’s competitors thinking that it would allow them to download Ascentive software. Tr. at 85.
. The same is true of the fact that Janet Simpson, PissedConsumer's purported Marketing Director who issues press releases on behalf of PissedConsumer, does not actually exist. Classic Tr. at 72. While issuing press releases in the name of a fictitious person may be regarded as unethical, as the Court is inclined to believe it is, it can only accurately be described as misleading but not confusing in that it would lead a consumer to mistake one person for another or affect source identification or purchasing decisions.
. Merriam-Webster defines the word "pissed” as "angry, irritated.” Merriam-Webster (2011), http://www.merriam-webster. com (last visited Dec. 13, 2011).
. Classic attempts to distinguish Cintas on the grounds that the (1) relevant group in that case was "a sophisticated corporate audience;” and (2) website in that case contained a disclaimer stating that it contained "criticism and information” about Cintas. Classic Reply Memorandum of Law in Support of Motion to Supplement the Record dated July 7, 2011 at 13-14 (Dkt. No. 58). These distinctions are inapposite. “Sophistication of the relevant group” is merely one of the Polaroid factors that courts consider in determining whether the likelihood of consumer confusion exists, see Polaroid,
. It also strains credulity that a consumer would believe PissedConsumer’s pages to be associated with the customer relations department of plaintiffs, one of Ascentive’s contentions. See Ascentive Tr. at 21.
. Competitive proximity “concerns whether and to what extent the two products [or services] compete with each other.” Cadbury Beverages,
. While it is true, as plaintiffs contend, that PissedConsumer's pages containing plaintiffs’ domain names sometimes contain pop-up ads and banner ads for plaintiffs' competitors, the key inquiry in the initial interest confusion analysis is whether PissedConsumer — the alleged infringer — competes with plaintiffs. See Falwell,
. Other allegedly improper SEO tactics include (1) creating web addresses and using them solely to create links to PissedConsumer’s site; (2) reposting the same consumer complaints on multiple websites so that the complaints appear new when in fact they are outdated; and (3) creating Twitter accounts that simply post links to outdated complaints at PissedConsumer. Ascentive Compl. ¶ 53; Classic Compl. ¶ 48.
. A banner advertisement is a graphic image, sometimes containing text, used on a website to advertise a product or service. If users click on a banner advertisement, the user’s web browser will link them immediately to the advertiser’s website. See, e.g., Playboy Enters.,
Internet users may suddenly see a small advertisement pop up in front of the page they are viewing, or when they close a web page, there may be an advertisement hiding underneath it. These are "pop-up” and "pop-under” ads. A computer user may download certain computer software onto his or her computer as part of a bundle of free software, and may or may not be aware that such software will create pop-up ads. Once the user enters a URL or search term, that can trigger the software to place an advertisement onto the screen. The product advertised may depend on the content of the web site or the search term the user has entered; if the web site is an air travel site, the advertisement could be for a discount airline ticket service, for example.
Gilson, supra, § 7A.14.
. Plaintiffs' motions for leave to supplement the record are granted. The motions contain new information relevant to the precise nature of the advertisements appearing on PissedConsumer’s site.
. Plaintiffs have provided the Court with no authority for the proposition that a website owner can be held liable for direct infringement based on actions by a third-party advertising network such as Chitika on the owner's site, and the cases they do cite are distinguishable. American Auto. Association, Inc. v. Advance Quotes, LLC, No. 10 Civ. 06020,
. Where, as here, a party such as PissedConsumer supplies a service — i.e., hosting a web-page — rather than a product to one engaging in trademark infringement, the Second Circuit has not decided definitively that Inwood applies; instead it assumed without deciding that Inwood applied because the service provider in that case did not contest Inwood’s application. See eBay,
. Instead, plaintiffs discuss the operation of Chitika only in their most recent submissions to the Court. See, e.g., Ascentive Supp. Reply at 11 (“It is true that Chitika plays a role in delivering ads that display ‘Ascentive’ in the ad text to PissedConsumer's website, but it is PissedConsumer that decided to display the ads, controls the ads, and triggers the delivery of the ads with its web server.”).
. In light of this conclusion, the Court will not address PissedConsumer's other arguments.
. Section 230(e)(3) provides:
Nothing in this section shall be construed to prevent any State from enforcing any State law that is consistent with this section. No cause of action may be brought and no liability may be imposed under any State or local law that is inconsistent with this section.
. 18 U.S.C. § 1962(c) makes it unlawful
for any person employed by or associated with any enterprise engaged in, or the activities of which affect, interstate or foreign commerce, to conduct or participate, directly or indirectly, in the conduct of such enterprise's affairs through a pattern of racketeering activity ....
. Ascentive contends that it is likely to succeed on its civil RICO claims based on a predicate act of commercial bribery; both Ascentive and Classic contend that they are likely to succeed on their civil RICO claims based on a predicate act of extortion.
. In light of this conclusion, the Court need not address PissedConsumer's other contentions regarding the deficiency of plaintiffs’ civil RICO claims.