Novak v. Overture Services, Inc., CV 02-5164(DRH)(WDW).

309 F.Supp.2d 446

Robert NOVAK D/B/A Pets Warehouse and Petswarehouse.com, Plaintiff, v. OVERTURE SERVICES, INC., Google, Inc., Innovative Marketing Solutions, Inc. d/b/a Kanoodle.com, John Holdefehr d/b/a Judge-for-Yourself.com, Biochemics, Inc. d/b/a Doctordog.com, Defendants.

No. CV 02-5164(DRH)(WDW).

United States District Court, E.D. New York.

March 25, 2004.

COPYRIGHT MATERIAL OMITTED

Robert Novak, Copiague, NY, Plaintiff Pro se.

Hodgson Russ LLP by Aidan M. McCormack, Esq., New York City, for Defendant Innovative Marketing Solutions.

Wilson, Sonsini, Goodrich & Rosati by David H. Kramer, Esq., Palo Alto, CA, for Defendant Google, Inc.

Brinks Hofer Gilson & Lione by Phillip A. Jones, Esq., Eric W. Gallagher, Esq., David S. Fleming, Esq., Chicago, IL, for Defendant Overture Services, Inc.

Morrison Mahoney & Miller LLP by Matthew B. Anderson, Esq., New York City, for Defendant Biochemics, Inc., d/b/a Doctordog.com.

John Holdefehr, Oakland, NJ, Defendant Pro se.

MEMORANDUM & ORDER

HURLEY, District Judge.

Plaintiff has initiated this action to address various perceived torts, including trademark infringement, arising from the use of an aspect of certain internet search engines. One defendant has filed a motion dismiss the first count of the complaint for improper venue or, in the alternative, for failure to state claim. Another defendant has filed a motion to dismiss all counts in the complaint for lack of personal jurisdiction or, in the alternative, to dismiss all trademark claims for failure to state a claim. A third defendant has filed a motion to dismiss all counts in the complaint due to the purported absence of personal jurisdiction. For the following reasons, the Court grants the first defendant's motion to dismiss the claims in the first count for improper venue and failure to state a claim. The two motions to dismiss for lack of personal jurisdiction are denied. The motion to dismiss the trademark claims as a matter of law is also denied.

I. BACKGROUND.

Plaintiff, who is proceeding pro se, has initiated several actions in this Court under various trademark infringement theories. Plaintiff initiated this action on September 24, 2002, by filing a complaint. There are twelve counts in the complaint. The Court will discuss these counts in order.

The first count alleges that Defendant Google, Inc. ("Google") "breach[ed a] [c]ontract" and "[t]ortious[ly] interefere[d] with contractual relations and prospective business relations." Complaint ¶ 23. According to this count, liability rises from the refusal by "Google [to] remove any material [from its online discussion groups] deemed objectionable by Plaintiff." Id. ¶ 28. Plaintiff further alleges that by failing to comply with the terms of service provided for these discussion groups, which purportedly require them to remove all material that Plaintiff finds objectionable, Google tortiously interfered with Plaintiff's contractual relations and prospective business relations. Id. ¶ 27. The first count does not mention trademarks in any colorable manner. See id. ¶¶ 23-28.

The second through twelfth counts all stem from the same core allegations regarding certain aspects of navigating the internet through the use of the world wide web ("Web"). "Navigating the Web is relatively straightforward. A user may either type the address of a known page or enter one or more keywords into a commercial `search engine' in an effort to locate sites on a subject of interest." Reno v. American Civil Liberties Union, 521 U.S. 844, 853, 117 S.Ct. 2329, 138 L.Ed.2d 874 (1997). Plaintiff's allegations all stem from the use of these search engines. To explain these allegation, some background discussion is necessary.

In very basic terms, the Web is made up of myriad individual websites, each of which has a corresponding Uniform Resource Locator ("URL" or "URLs"). The Second Circuit has defined URLs as:

Sequences of letters that identify resources in the web, such as documents, images, downloadable files, services, and electronic mailboxes. The URL is the address of the resource, and contains the protocol of the resource (e.g., "http://" or "ftp://"), the domain names for the resource, and additional information that identifies the location of the file on the computer that hosts the website.

Register.Com, Inc. v. Verio, Inc., 356 F.3d 393, 407 n. 4 (2d Cir.2004).

Due to the enormous number of websites and correspondingly large number of unique URLs, the Web is notoriously difficult to navigate. It is possible to go directly to websites via an input of the specific URL. However, such a process presupposes that the user knows the exact website that she seeks. This is often not the case. In such circumstances, the user may wish to utilize an internet search engine.

To utilize an internet search engine, a user must enter a text inquiry into the program. (The data input for the internet search engine is often found on the website of the company, i.e. "Yahoo.com.") Generally, search engines attempt to match the intent of the user's text query with the actual content of the web pages found on the net. Thus, for example, when a user inputted the term "strawberry fields" into a search engine, that same engine would search the internet to provide a ranked list of all web pages whose content relates to that phrase. Ideally, the website placed first on the outputted list would relate directly to the user's intended target. However, among other complicating factors, the user's intent is rarely crystalline. Thus, the search process is imperfect. For this reason, returning to the term that the Court utilized before, a search engine analyzing the term "strawberry fields" may produce a list headed by links to a Beatles music fan site entitled "StrawberryFields.com." If, however, the user was searching for a website devoted to fresh produce, she will be disappointed by this outcome. With this background in mind, the Court turns to the complaint.

Defendants Google, Overture Services, Inc. ("Overture") and Innovative Marketing Solutions, Inc. d/b/a Kanoodle.com ("Kanoodle") all own and operate search engines on the Web. The pro se complaint is not a model of clarity. Nonetheless, interpreting the language of the complaint broadly, Plaintiff alleges that Defendants Google, Overture and Kanoodle were manipulating the outcomes of certain searches when paid to do so. Specifically, Plaintiff alleges that these defendants would sell the words "Pet" and "Warehouse" to certain other defendants. According to Plaintiff, the effect of this monetary arrangement was that when a user inputted those words, the defendants' websites would be at the top of the list instead of Plaintiff's website. This situation was further complicated by the fact that Plaintiff claims to own the trademark for the phrase "PETS WAREHOUSE." As a result of these facts, Plaintiff alleges that Google, Overture and Kanoodle are "directly, contributorily, and vicariously liable for the resulting acts of unfair competition, trademark infringement, trademark dilution misappropriation, deceptive trade practices, unjust enrichment and tortious interference with prospective economic advantage." Id. ¶ 37.

The instant motions were fully briefed and submitted to the Court on March 27, 2003. Included among these motions are Google's motion to dismiss the first count for either improper venue or failure to state a claim, the motion by Defendant Biochemics, Inc., d/b/a Doctordog.com ("Biochemics") to dismiss for lack of personal jurisdiction, the motion by Biochemics for failure to state a claim and the motion by Defendant John Holdefehr d/b/a Judge-for-Yourself.com ("Holdefehr") to dismiss for lack of personal jurisdiction. On May 21, 2003, the Court received Plaintiff's request for a stay of this action due to a pending bankruptcy petition. That request was later denied.

II. DISCUSSION.

A. Google's Motion.

Google first files a motion to dismiss all claims rising from an alleged breach of the terms and conditions agreement associated with the discussion groups accessible through its website. The basis for this motion is that the terms and conditions of use contract clearly states that all federal actions "arising" from the use of the discussion groups must be venued in the Northern District of California. Therefore, according to Google, this claim must be dismissed for lack of venue.

Plaintiff has submitted a confusing response to this motion. In a December 10, 2002, letter, Plaintiff maintained, contrary to the plain language of the complaint, see complaint ¶ 27, that the complaint was not intended to articulate any claims for breach of the terms and conditions of use for the discussion groups. See December 10, 2002, letter. Plaintiff has now changed his tune. He now maintains that the claim "relates to this Defendant [Google] failing to abide by [its] own terms of service." Plaintiff's Google Opp. Mem. at 1.¹ The Court will hold Plaintiff to this interpretation of his claim. Since the terms of the forum selection clause embrace all claims "relating to [the] use of th[e] Service," the Court concludes that Plaintiff's first claim falls under the clause.

Plaintiff maintains that he is not bound by the forum selection clause. See Plaintiff's Google Opp. Mem. at 3-6. Plaintiff's arguments on this point are unclear. See id. However, because he is proceeding pro se, the Court will assume that Plaintiff means to state that, although he is a party to the contract embodied by the Google terms of service as a whole, the forum selection portion of that contract is unenforceable for some reason.

Forum selection clauses, such as the one at issue in the instant case, are regularly enforced. See Stewart Org., Inc. v. Ricoh Corp., 487 U.S. 22, 29, 108 S.Ct. 2239, 101 L.Ed.2d 22 (1988); Weiss v. Columbia Pictures Television, Inc., 801 F.Supp. 1276, 1282 (S.D.N.Y.1992). "A forum selection clause is enforceable unless it is shown that...