Plaintiff Ernest Evans, who performs under the stage name “Chubby Checker” and is best known for the 1960 hit song The Twist, and several companies that own Chubby Checker trademarks, brought suit against defendants Hewlett-Packard and Palm, Inc., asserting federal trademark and state-law claims related to an adult-oriented mobile app called The Chubby Checker, which defendants made available for sale and download through their HP App Catalogue.
The district court had previously found that plaintiffs’ state-law claims were pre-empted by Section 230 of the Communications and Decency Act (CDA), which immunizes providers of interactive computer services from claims based on the content of material published using their services. Plaintiffs moved to file a Second Amended Complaint with additional allegations, re-asserting state-law causes of action that the court had previously dismissed. The court denied plaintiffs’ request, finding that the CDA pre-empted plaintiff’s state-law claims, even as revised.
Plaintiffs’ proposed pleading would have alleged, in pertinent part, that defendants (1) “created, designed, developed and transformed” at least parts of advertisements for the allegedly infringing content; (2) “assisted in the development, distribution, naming endorsement and sale” of the app; and (3) had a partnership or joint venture with the application’s developer by which they profited from the application’s sale.
Rejecting the proposed Second Amended Complaint, the court first disagreed with the plaintiffs’ argument that the defendants’ assertion of CDA immunity was an affirmative defense that could not be decided at the motion to dismiss stage. The court noted that, where an affirmative defense is apparent from the face of the complaint, the court may consider the defense on a motion to dismiss.
Here, the court concluded, plaintiffs’ Second Amended Complaint established that the defendants acted as service providers, as opposed to content providers, and were entitled to CDA immunity. The court disregarded as merely conclusory many of the proposed additional allegations – such as that defendants “created, designed developed and transformed” at least parts of advertisements for The Chubby Checker. The court also found that the mere fact that defendants were entitled to a percentage of the sales revenues generated by the app did not transform defendants’ into joint venturers or partners with the app’s creators, or show that they had any role in creation of the app’s content.
As the court had previously declined to dismiss plaintiffs’ federal trademark and unfair competition claims, it left open the possibility that plaintiffs would learn additional facts in discovery that would allow them to plead around the CDA’s harbor provisions for service providers.
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