732 F.Supp.2d 628 (E.D.Va. 2010), 1:09cv736 (GBL/TCB), Rosetta Stone Ltd. v. Google Inc.

Docket Nº:1:09cv736 (GBL/TCB).
Citation:732 F.Supp.2d 628
Opinion Judge:GERALD BRUCE LEE, District Judge.
Party Name:ROSETTA STONE LTD., Plaintiff, v. GOOGLE INC., Defendant.
Attorney:Warren Thomas Allen, II, Skadden Arps Slate Meagher & Flom LLP, Washington, DC, for Plaintiff. Jonathan David Frieden, Stephen Andrew Cobb, Odin Feldman & Pittleman P.C., Fairfax, VA, for Defendant.
Case Date:August 02, 2010
Court:United States District Courts, 4th Circuit, Eastern District of Virginia
 
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732 F.Supp.2d 628 (E.D.Va. 2010)

ROSETTA STONE LTD., Plaintiff,

v.

GOOGLE INC., Defendant.

No. 1:09cv736 (GBL/TCB).

United States District Court, E.D. Virginia, Alexandria Division.

August 2, 2010

Page 629

Warren Thomas Allen, II, Skadden Arps Slate Meagher & Flom LLP, Washington, DC, for Plaintiff.

Jonathan David Frieden, Stephen Andrew Cobb, Odin Feldman & Pittleman P.C., Fairfax, VA, for Defendant.

MEMORANDUM ORDER

GERALD BRUCE LEE, District Judge.

THIS MATTER is before the Court on Defendant Google Inc.'s Motion to Dismiss. (Dkt. No. 94.) This case concerns Plaintiff Rosetta Stone Ltd.'s (" Rosetta Stone" ) allegations that Defendant Google Inc. (" Google" ) actively assists third party advertisers to mislead consumers and misappropriate Rosetta Stone's trademarks by using the trademarks (1) as keyword triggers for paid advertisements and (2) within the text or title of paid advertisements on Google's website. The issue before the Court is whether Rosetta Stone alleges sufficient facts to support a claim for unjust enrichment under Virginia law. The Court grants Google's Motion to Dismiss because (1) the facts set forth in Rosetta Stone's First Amended Complaint fail to plausibly suggest a claim for unjust enrichment under Virginia law and (2) the unjust enrichment claim is barred by the Communications Decency Act (" CDA" ).

I. BACKGROUND

Based in Arlington, Virginia, Plaintiff Rosetta Stone Ltd. (" Rosetta Stone" ) is in the business of providing technology-based language-learning products and services. (First Am. Compl. ¶ ¶ 7 & 14.) To preserve its trademark rights, Rosetta Stone has secured federal trademark registration for many of its trademarks and service marks, including: ROSETTA STONE, ROSETTA STONE LANGUAGE & LEARNING SUCCESS, ROSETTASTONE.COM, and ROSETTA WORLD (the " Rosetta Stone Marks" ). (First Am. Compl. ¶ ¶ 15 & 16.)

Defendant Google Inc. (" Google" ) is an internet company based in Mountain View, California which owns and operates a search engine-a computer program that allows users to search the World Wide Web for particular information. (First Am. Compl. ¶ ¶ 3 & 8.) Google's search engine is available on its own website as well as other websites that use its search engine. (First Am. Compl. ¶ 3.)

In 2002, Rosetta Stone began participating in one of Google's advertising programs called AdWords Select Advertising Program (" AdWords Program" ) as an advertiser. (First Am. Compl. ¶ 36.) Advertisers under the AdWords Program pay to have their advertisements (" Sponsored Links" ) displayed when a web user enters certain words or phrases (" keywords" ) in Google's search engine. (First Am. Compl. ¶ ¶ 36 & 37.) Advertisers can select keywords that will trigger the Sponsored Links directing users to the advertisers' chosen website. (First Am. Compl. ¶ 36.) These Sponsored Links appear above or alongside the search page and in a color, typeface, and font size similar to the search results generated from a web

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user's query. In addition to triggering Sponsored Links, the keywords may also be published as part of the advertisement itself. (First Am. Compl. ¶ ¶ 38 & 39.) Consequently, advertisers are able to place their advertising in front of consumers who have identified themselves as interested in certain products or services. (First Am. Compl. ¶ 27.)

For many years, Google prohibited advertisers from purchasing specific trademarks as keyword triggers for Sponsored Link advertisements. (First Am. Compl. ¶ 44.) However, Google revised this policy and began allowing advertisers to purchase specific trademarks as keyword triggers for the Sponsored Links. (First Am. Compl. ¶ 44.) Based on Google's new policy, Rosetta Stone brings this action alleging Google's unauthorized use of the Rosetta Stone Marks. Rosetta Stone alleges that by giving other paid advertisers under Google's advertising programs, including AdWords, the right to use the Rosetta Stone Marks, or words, phrases, or terms similar to those Marks as keyword triggers that cause Sponsored Links to be displayed, Google's search engine is helping other advertisers misdirect web users to websites of companies that (i) compete with Rosetta Stone, (ii) sell language education programs from Rosetta Stone's competitors, (iii) sell...

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