Beverly Stayart searched her own name and “didn’t like the results.” She got links to “pornographic websites, online pharmacies promoting sexual dysfunction drugs, and an adult-oriented online dating service.” She sued Yahoo! and other defendants, including the operator of AdultFriendFinder, for false endorsement under the Lanham Act and state-law privacy violations. The court dismissed the Lanham Act claim and surrendered jurisdiction over the state law claims.
Stayart lives in Wisconsin and “was previously employed by several major financial institutions in Chicago, attaining the position of Vice President.” She’s involved in animal protection and genealogy research “throughout the world.” This includes an internet presence; her periodic posts on one genealogical website have generated almost 17,000 hits during the past three years. (Okay, I’m sorry, but: on the internet as a whole, that’s tiny. My stats look more impressive than that—if you’ve never seen any others.) And two of her poems appear on two Danish websites (they support the preservation of baby seals).
Stayart alleged that she was the only Beverly/Bev Stayart on the internet, and that she had never engaged in a promiscuous lifestyle, or other overt sexual activities, which are repugnant to her and her community. She alleged that her name had commercial value “because of her humanitarian endeavors, positive and wholesome image, and the popularity of her scholarly posts on the Internet.” The search engine defendants, she alleged, knowingly used her name on false snippets in results by “(1) repeatedly linking Plaintiff to the advertising of Cialis by an online pharmacy; (2) repeatedly linking Plaintiff to six separate websites playing pornographic videos containing computer spy ware; and (3) repeatedly linking Plaintiff to a website captioned ‘Free Streaming Porn--HOTTEST DAILY PORN’ displaying 27 hardcore pornographic photos.” She asked Yahoo! to stop linking her name to these search results. Yahoo! replied: “We do not aim to judge web content for appropriateness or censor materials that we find offensive or inappropriate. Instead, we present information as it is reflected on the Web, allowing you to draw your own informed conclusions about what you see.”
Stayart also alleged that Various (which operates AdultFriendFinder) used her name on a website advertising its service. She typed her name into altavista.com and got, among the results, jewellery-makin-doorway.orge.pl/bev-stayart.html. This went to an “Under Construction” site that stated “Meet AdultFriendFinder members near Janesville [Wisconsin]-- Over 20 Million Members” and displayed “five graphic images of fully or partially nude women,” “accompanied by the age, nickname and city of residence of the women.”
Under Iqbal, though a court must accept all well-pleaded facts as true, the claim must still have facial plausibility. And a plaintiff can plead herself out of court, which was what the court determined had occurred here.
False endorsement means that consumers are likely to be misled about a person’s sponsorship or approval of a product or service.
In order to have prudential standing under the Lanham Act, Stayart needed to allege at least an existing intent to commercialize her identity. This she didn’t do. Though she alleged that her name has commercial value, her complaint is really about distasteful associations. That emotional desire to prevent others from using her name doesn’t create Lanham Act standing. Her correspondence with Yahoo!, attached to the complaint, further indicates that her concerns are with privacy and reputation, defamation and demeaning associations. But the Lanham Act does not create a false light tort claim, absent commercialization.
Stayart relied on Doe v. Friendfinder, which refused to dismiss a false endorsement claim against AdultFriendFinder. But Doe didn’t address prudential standing in its decision.
The court went on to reach an independent ground for dismissal, lack of likely confusion as a matter of law. “[A] commonsense reading of the complaint demonstrates that there could be no likelihood of confusion.” The complaint explicitly disavows any association with pornographic materials, sexual dysfunction drugs, or sexually-oriented dating services. This “contravenes” likelihood of confusion, so Stayart pleaded herself out of court. (Query: before 1999, would Bob Dole have had a claim? He’d never previously been associated with sexual dysfunction drugs, so wouldn’t it have been just as implausible that he’d be a pitchman for them?) “No one who accessed these links could reasonably conclude that Bev Stayart endorsed the products at issue.”
Stayart argued initial interest confusion against AdultFriendFinder. But on the internet, initial interest confusion depends on relatedness of goods and a consumer’s level of care. Given that Stayart’s identity is completely unrelated to AdultFriendFinder’s services, initial confusion won’t facilitate free riding on another mark’s goodwill. Without a meaningful effect on the market, confusion is of little or no consequence under the Lanham Act. “The type of person looking for information about Bev Stayart would not be fooled into using an online adult-oriented dating website.” (I’d add in “to find her” at the end of that; the court might be surprised to find out—just as Stayart might be—the non-Stayart-related interests of the type of people looking for information about Stayart. I’d be willing to bet that even genealogists and animal rescuers sometimes like to meet adult friends!)
Next, a puzzling CDA discussion. The court commented that if Stayart successfully stated a false endorsement claim under the Lanham Act, it would probably fall under the CDA’s intellectual property exclusion. But, it continued, one of the fatal flaws of that claim is that Yahoo! didn’t use Stayart’s name in connection with its own goods or services. It just included snippets from third-party websites and didn’t create the content of which Stayart complained. So the proper analysis is vicarious liability/contributory infringement under the Lanham Act.
Under settled doctrine, Yahoo! can’t be held liable for failing to remove the search results even after Stayart complained. It didn’t control the third-party websites, which fact defeated both contributory and vicarious liability. (That’s a shortcut on contributory liability analysis, but not particularly troubling under the circumstances.) The only way Yahoo! could control the results would be to change its algorithm, which “goes to the heart of Yahoo!’s role as an interactive computer service.” Because ordinary search engines play no part in developing any unlawful searches, “Yahoo! should be entitled to immunity because it acted as an interactive computer service, even though Stayart’s claims are nominal intellectual property claims.” Immunizing Yahoo! doesn’t contravene the CDA’s IP exclusion because Stayart doesn’t have a valid IP claim.
Comment: oh, my. Look, I like CDA immunity generally. But what’s weird here is not the court’s willingness to use CDA reasoning on an IP claim despite the IP exclusion; what’s weird is the court’s failure to notice that IP secondary liability doctrine itself incorporates the tech-promoting rationales underlying the CDA. Well, trademark does much more than copyright, these days—but it’s trademark doctrine that’s at issue here! There’s no need to bring in the CDA! And that last bit—this analysis only applies because Stayart doesn’t have a valid IP claim—makes this whole excursion even more obviously useless.
The court then said that matters were “less clear” with respect to AdultFriendFinder. The site is in some ways interactive, but Stayart’s complaint relates to the banner ad associated with the bev-stayart.html URL. AdultFriendFinder’s role in the creation of the banner ad content was unclear, so the court couldn’t grant it immunity at this stage.
The only claims that remained were state-law claims. Given that the dismissal was on the pleadings, ordinarily a federal court should relinquish jurisdiction, unless it is so obvious how the claims should be decided that the plaintiff should be put out of her misery rather than involving state-court resources. Defendants argued that Wisconsin requires a name to have commercial value in order to maintain a right of publicity claim. But some variations of the appropriation tort, which Wisconsin may recognize, require only commercial use plus bruised feelings. (Doesn’t Yahoo! get out of this even if AdultFriendFinder has to proceed in state court? Under what theory is Yahoo!’s use commercial? If it’s using snippets from other sites, how can it possibly be distinguished from the New York Times using Stayart’s name in a story?)
The distinction between appropriation and the right to publicity (based on commercial damage) is also relevant to CDA immunity. The latter is an IP claim. (Implicit holding: to the extent Stayart is bringing an appropriation claim, Yahoo! is immune.) Plus there’s the Perfect 10 versus Friendfinder split over whether state IP claims are preempted by the CDA. Since this is an unsettled issue of federal law, the court couldn’t conclude that there was an obvious resolution of the state law claims. “Even though the Court already held that Yahoo! was entitled to CDA immunity, the Court cannot say with certainty that a potential right to publicity claim under Wisconsin law is without merit, meaning that the intellectual property exception could save Stayart’s claims.” Also, AdultFriendFinder’s CDA status is unclear, leaving it potentially vulnerable under either a misappropriation or right of publicity claim.