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Designer Skin LLC v. S & L Vitamins, Inc., et al.
Unauthorized internet reseller of plaintiff’s products is not guilty of trademark infringement, and does not cause actionable initial interest confusion, by using plaintiff’s trademarks in meta tags of website at which plaintiff’s and its competitors’ products are sold, and in...

John Doe v.

502 F.Supp. 2d 719, Case No. 3:07 CV 604 (N.D. Ohio, August 22, 2007)

Court holds that the Communications Decency Act (“CDA”), 47 U.S.C. Section 230, immunizes operator of online adult dating service from claims arising out of a user’s false statement in her user-profile that she was over 18.  Relying on this profile, plaintiff met and had consensual sexual relations with a minor, for which he was subsequently arrested.  Plaintiff brought this suit, seeking redress.  Importantly, the contract between the parties expressly provided that does not “assume any responsibility for verifying the accuracy of the information provided by other users of the Service.”  Because plaintiff sought to hold, a provider of Interactive Computer Services, liable for its publication of content authored by another, his claims, whether couched as breach of contract, fraud or negligent misrepresentation, were barred by application of the CDA.  Plaintiff’s breach of contract claim similarly failed because SexSearch did not assume responsibility for verifying the age of users.

Defendant operates “an online adult dating service which encourages its members to meet and engage in sexual encounters.”  Members are permitted to include information and pictures in a user profile which other members may view.

Jane Roe, a minor, posted a profile on the site, in which she falsely claimed to be 18 when she was in fact 14.  Plaintiff John Doe read the profile, and the parties arranged a meeting, during which they had consensual sexual relations.  Plaintiff was subsequently arrested for having sexual relations with a minor.

To become a member of SexSearch’s site, plaintiff entered into a click-wrap agreement in which he was expressly advised that does not “assume any responsibility for verifying the accuracy of the information provided by other users of the Service” and does not provide any warranties not otherwise stated in the agreement.  During the process by which he became a member, plaintiff was required to confirm, by clicking a box, that he was over 18.  No other steps were taken to verify his age.

Notwithstanding this express contractual language, plaintiff alleged that SexSearch falsely represented and warranted that all members on its site were over the age of 18.  He further alleged that SexSearch promised to verify that all members were in fact over the age of 18, a promise it failed to keep.  As a result, plaintiff advanced breach of contract and warranty claims, as well as claims of fraud, negligent misrepresentation and negligent infliction of emotional distress.  He further asserted that the contract between the parties was unconscionable, in part because it limited’s liability to the price plaintiff paid for its services.

The owner of, Cytek Ltd., which was not named as a party, appeared and moved to dismiss the complaint.  The Court granted Cytek’s motion.

The Court held that the majority of plaintiff’s claims were barred by application of the Communication Decency Act.  The statute provides that “no provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.” 

The Court held SexSearch met all of the requirements necessary to obtain the protections of the CDA.  Because it “functions as an intermediary by providing a forum for the exchange of information between third party users” was an interactive computer service provider.  Similarly, the user profile at issue was authored by Jane Roe, and not SexSearch.  Finally, at bottom, plaintiff’s claim sought to hold SexSearch liable for publishing and making available to him the false profile authored by Jane Roe.  This, held the Court, whether couched as a breach of contract or tort claim, was barred by the CDA.  Said the Court:

[T]he plain language of Section 230 does not limit its grant of immunity to tort claims: “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.”  … Several courts have specifically applied Section 230 to breach of contract claims. … At the end of the day … Plaintiff is seeking to hold SexSearch liable for its publication of third-party content and harms flowing from the dissemination of that content.  The underlying basis for Plaintiff’s claim is that if SexSearch had never published Jane Roe’s profile, Plaintiff and Jane Roe never would have met, and the sexual encounter never would have taken place.  Plaintiff thus attempts to hold SexSearch liable for “decisions relating to the monitoring, screening and deletion of content from its network – actions quintessentially related to a publisher role.  Section 230 specifically proscribes liability in such circumstances.

The Court further held that, even if the CDA was not applicable to this case, plaintiff’s claims would fail.  The Court had little trouble disposing of plaintiff’s breach of contract claim.  This claim rested on the purported failure of SexSearch to prevent minors from becoming members.  However, as stated above, SexSearch expressly disclaimed an obligation to verify its members age in the parties’ agreement.  As such, its failure to do so was not a breach of the parties’ agreement.

Similarly, plaintiff’s fraud claim failed.  Plaintiff alleged that SexSearch falsely represented that all members were over the age of 18.  Even assuming such was in fact the case, plaintiff could not reasonably rely on such an alleged misrepresentation given the fact that he knew that SexSearch made no attempt to verify his age when he signed up as a member.  Nor could he reasonably rely on such “misrepresentation” in light of the express disclaimer in the parties’ contract that SexSearch does not verify user information.  Finally, he could not reasonably rely because, when he met Jane Roe, he could have taken steps to verify her age himself.

Similarly, the Court rejected plaintiff’s claims that SexSearch engaged in deceptive practices in violation of the Ohio Consumer Sales Practices Act by falsely representing and warranting that no members were under the age of 18.  The court held, in light of both the disclaimer in the parties’ contract, and plaintiff’s knowledge that membership sign-up procedures did not include age verification, that SexSearch had not engaged in any such deceptive practices.

Finally, the Court rejected plaintiff’s claim that the parties’ contract was unconscionable because it contained a limitation of liability clause that limited a member’s recovery to amounts paid under the parties’ contract.  “The limitation of liability clause was commercially reasonable based on the small contract price and the extent and unpredictability of future liability.  Thus, the limitation of liability clause is not substantively unconscionable.” 

Nor, held the Court, was it procedurally unconscionable, given, inter alia, that others provided similar services to those offered by SexSearch, that the limitation of liability clause was not buried in fine print, and that plaintiff had an adequate opportunity to read and understand the terms.

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