Ivymedia Corp. v. Ilikebus, Inc.

IVYMEDIA CORPORATION, Plaintiff, v. ILIKEBUS, INC., ALAN ZOU and TONG WEI, Defendants.

Civil Action No. 15-11918-NMG

United States District Court District of Massachusetts

July 13, 2015

MEMORANDUM & ORDER

GORTON, J.

This case arises out of a copyright infringement dispute between two businesses that provide online ticketing and reservation services for bus companies. Plaintiff IvyMedia Corporation ("IvyMedia") alleges that defendants iLIKEBUS, Inc. ("iLIKEBUS"), Alan (a/k/a Xiaohui) Zou ("Zou"), Tong Wei ("Wei") and unidentified individual John Doe have infringed its copyrighted materials through their website www.iLIKEBUS.com.

Pending before the Court are 1) plaintiff's motion for a temporary restraining order and a preliminary injunction to enjoin defendants from further publishing any copyrighted content by shutting down defendants' website and 2) defendants' motion to dismiss or, in the alternative, for more a definite statement. For the reasons that follow, defendants' motion willbe allowed, in part, and denied, in part, and plaintiff's motion for a preliminary injunction will be denied.

I. Background

A. Parties

IvyMedia, a Massachusetts corporation, offers a web-based platform for customers to make reservations and purchase bus tickets for inter-city travel in the United States. It is the owner and operator of the website www.GotoBus.com which launched in 2006.¹ IvyMedia acts as an independent contractor for bus companies and receives a commission based on each ticket sale made through its website. The company holds federal trademark registration number 3084987 from the United States Trademark Office for the mark "GOTOBUS."

Defendant iLIKEBUS is a Delaware corporation with its principal place of business in Virginia. Defendant Zou is a director of iLIKEBUS and resides in Maryland. Wei, the Chief Executive Officer of iLIKEBUS, resides in Virginia. Collectively, defendants operate the website www.iLIKEBUS.com which also provides internet-based ticketing services for bus trips.

B. IvyMedia's Copyright

IvyMedia describes its website as containing both static and dynamic pages. A static page appears the same way whenever a user visits it while a dynamic page is composed by a server in response to a user's specific request for information. Plaintiff avers that all of the static pages on its website are protected by a registered copyright issued by the United States Copyright Office and those pages include

among other things, the summary descriptions and full descriptions of each of the tours and vacations offered on [its] website.

IvyMedia does not provide in its complaint or accompanying declaration, however, the copyright registration number, the date its copyright became effective or a description of the scope of its copyright. Plaintiff instead mentions in a declaration accompanying its opposition to defendants' motion to dismiss that IvyMedia received its certificate of copyright registration in 2005. Moreover, although plaintiff indicates in footnote 3 of its motion for preliminary injunction that the subject copyright extends to

portion of text; revision of pre-existing text; selection, coordination and arrangement of text, graphic art & photograph

and cites paragraph 22 of the Chen Declaration, that quote does not in fact appear in the referenced declaration.

C. Defendants' Alleged Infringement

IvyMedia contends that in April, 2015, it discovered that defendants' website copied numerous aspects of the www.GotoBus.com website including

descriptions of the various bus details, the user interface including selection menu options and search results, the design of website icons, the user interface for dynamic price, the search result filter, and other elements contained in the website.

Plaintiff also offers several exhibits depicting screenshots comparing the two websites. It avers that the exhibits indicate that defendants copied plaintiff's 1) user interface design of the search box and search results, 2) user interface for schedule selection in the search results, 3) user interface for selecting a new city, 4) design of the "sold out" and "overnight" icons, 5) user interface for roundtrip schedule selection, including the exact wording and expanded schedules and 6) checkout process.

D. Procedural History

Plaintiff simultaneously filed the instant lawsuit and motion for preliminary injunction in May, 2015. The complaint asserts claims for 1) copyright infringement in violation of 17 U.S.C. § 501, 2) unfair competition and false designation of origin in violation of the Lanham Act, 15 U.S.C. § 1125(a), 3) violation of the Anticybersquatting Consumer Protection Act, 15U.S.C. § 1125(d), 4) common law unfair competition, 5) unjust enrichment and 6) violation of M.G.L. c. 93A.

The following month, defendant moved to dismiss the case for lack of personal jurisdiction pursuant to Fed. R. Civ. P. 12(b)(2) and for failure to state a claim pursuant to Fed. R. Civ. P. 12(b)(6). A hearing on both motions was held in July, 2015.

II. Defendants' Motion to Dismiss, or in the Alternative, for a More Definite Statement

A. Personal Jurisdiction

1. Legal Standard

In order to hear cases and issue judgments the Court must first find personal jurisdiction over the parties. United States v. Swiss Am. Bank, Ltd., 191 F.3d 30, 35 (1st Cir. 1999). The plaintiff bears the burden of proving personal jurisdiction and must present specific facts to support its claim. Foster-Miller, Inc. v. Babcock & Wilcox Canada, 46 F.3d 138, 145 (1st Cir. 1995). The Court accepts properly supported proffers of evidence by the plaintiff as true and considers facts put forward by the defendants to the extent that they are uncontradicted by the plaintiff. Newman v. European Aeronautic Defence & Space Co. Eads N.V., 700 F. Supp. 2d 156, 159 (D. Mass. 2010).

To establish personal jurisdiction, a plaintiff must show that jurisdiction is 1) statutorily authorized and 2) consistent with the Due Process Clause of the United States Constitution. Astro-Med, Inc. v. Nihon Kohden Am., Inc., 591 F.3d 1, 8 (1st Cir. 2009). Because the Massachusetts long-arm statute, M.G.L. c. 223A, § 3, reaches to the full extent that the Constitution allows, the Court proceeds directly to the constitutional analysis. See Sawtelle v. Farrell, 70 F.3d 1381, 1388 (1st Cir. 1995).

The Due Process Clause requires minimum contacts between a nonresident defendant and the forum state such that the exercise of personal jurisdiction over that defendant accords with "traditional notions of fair play and substantial justice." Int'l Shoe Co. v. Washington, 326 U.S. 310, 316 (1945).

There are two forms of personal jurisdiction: general and specific. Pritzker v. Yari, 42 F.3d 53, 59 (1st Cir. 1994). Specific jurisdiction is the narrower of the two kinds and exists when the plaintiff's cause of action arises out of or relates to the defendants' contacts with the forum state. Id. at 60. Specific jurisdiction is appropriate when 1) the claims arise out of or are related to the defendants' in-state activities, 2) the defendants have purposefully availed themselves of the laws of the forum state and 3) the exercise ofjurisdiction is reasonable under the circumstances. Sawtelle, 70 F.3d at 1389.

Alternatively, general jurisdiction exists when the defendant has engaged in "continuous and systematic activity", unrelated to the suit, in the forum state. Id. IvyMedia does not allege that the Court has general jurisdiction over defendants. The Court therefore will proceed only with an analysis of specific jurisdiction.

2. Application

Plaintiff contends that the Court has specific jurisdiction over defendants because 1) they have previously conducted business in Massachusetts, 2) they market and sell their products and services to Massachusetts residents, 3) many of the bus trips offered by defendants begin, end or traverse Massachusetts, 4) defendants have paying customers in Massachusetts, 5) the allegedly infringing website reaches Massachusetts and 6) defendants have targeted and inflicted injury upon a business located in Massachusetts.

Defendants dispute each of plaintiff's allegations with the exception of the allegation that the website reaches Massachusetts. They aver that they do not conduct business in Massachusetts, do not market or sell their products to Massachusetts residents, do not offer bus trips that begin, end or traverse the Commonwealth and do not have any payingcustomers in Massachusetts. Moreover, defendants contend that iLIKEBUS is not registered to do business in Massachusetts, does not have any offices, property or employees in Massachusetts and has not entered into any contracts in Massachusetts or with any Massachusetts entities.

Accepting all of defendants' assertions as true, the Court, nevertheless, finds personal jurisdiction over iLIKEBUS and its corporate officers, see Marks v. Polaroid Corp., 237 F.2d 428, 435 (1st Cir. 1956) (noting that corporate officers may be subject to personal jurisdiction based on the infringing acts of their employer if they are a "moving, active, conscious force behind the [alleged] infringement"), for the following reasons:

a. Relatedness

The relatedness prong of the test for personal jurisdiction "focuses on the nexus between the defendant[s'] contacts and the plaintiff's cause of action" to ensure that defendants will not be subject to personal jurisdiction unless their contact with the forum state caused the alleged harm. Ticketmaster-New York, Inc. v. Alioto, 26 F.3d 201, 206-07 (1st Cir. 1994).

The Court concludes that plaintiff's claims are related to defendants' in-state activities because the alleged wrongdoing arises out of the publication of a website

that is continuously available to Massachusetts residents and [allegedly] causing tortious injury in Massachusetts to [plaintiff].

Hasbro Inc. v. Clue Computing Inc., 994 F. Supp. 34, 44 (D. Mass. 1997).

b. Purposeful Availment

The second inquiry relative to specific jurisdiction is whether ...