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`IN THE UNITED STATES DISTRICT COURT
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`FOR THE NORTHERN DISTRICT OF CALIFORNIA
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`SAN JOSE DIVISION
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`Perfect 10, Inc.,
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`Plaintiff,
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` v.
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`Visa International Service Association, et al.,
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`Defendant(s).
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`NO. C 04-00371 JW
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`ORDER DENYING
`DEFENDANTS’ MOTION FOR
`ATTORNEYS’ FEES
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`I. INTRODUCTION
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`Plaintiff Perfect 10 Inc., (“Plaintiff”) brought this lawsuit against Defendants Visa International
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`Services Association (“Visa”), First Data Corp., (“FDC”), Cardservices International, Inc., MasterCard
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`International Incorporated (“MasterCard”), and Humboldt Bank (collectively “Defendants”) claiming
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`copyright and trademark infringement, violation of right of publicity, unfair competition, and false and
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`misleading advertising. Defendants subsequently moved to dismiss Plaintiff’s First Amended Complaint
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`pursuant to FED. R. CIV. P. 12(b)(6). On December 3, 2004, the Court granted Defendants’ Motion to
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`Dismiss with prejudice. (See December 3, 2004, Order Granting Defendants’ Motion to Dismiss.) On
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`December 15 and 17, 2004, Defendants respectively moved for attorneys’ fees, pursuant to FED. R. CIV.
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`P. 54 (d)(2) and Civil Local Rules 54-5. Based on all the papers submitted to date, the Court DENIES
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`Defendants’ Motion for Attorneys’ Fees.
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`For the Northern District of California
`For the Northern District of California
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`United States District Court
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`Case5:04-cv-00371-JW Document77 Filed08/12/05 Page2 of 10
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`II. BACKGROUND
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`On January 28, 2004, Perfect 10 brought a complaint against Defendants alleging copyright and
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`trademark infringements, violation of publicity rights, unfair competition, libel, and intentional interference
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`with a prospective business advantage. Defendants subsequently filed a motion for dismissal under Rule
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`12(b)(6), which the Court heard on July 9, 2004. Plaintiff’s main allegation was that Defendants were
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`liable for contributory copyright infringement because Defendants had knowledge that some of their
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`customers were operating allegedly infringing websites. Plaintiff based its allegation on the notifications it
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`gave to Defendants concerning the websites’ alleged infringing conduct. However, the Court found that
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`although the element of knowledge was present, the claim lacked facts showing material contribution to the
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`infringement. The Court found that the Defendants’ financial services provided to the merchants were not
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`essential to the operation of the Stolen Content Websites because the Stolen Content Websites could have
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`used alternative methods of payment. Furthermore, Defendants’ ability to process credit cards “does not
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`directly assist the allegedly infringing websites in copying Plaintiff’s works.” (August 5, 2004 Order
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`Granting Motion to Dismiss at 5:1 - 6:28.) With respect to the vicarious copyright infringement claim, the
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`Court found that although some of the facts presented by the Plaintiff might have implied a financial benefit
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`for Defendants, their ability to rescind their services did not imply control over the websites’ alleged
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`infringing actions. (August 5, 2004 Order Granting Defendants’ Motion to Dismiss at 7-9.)
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`Plaintiff also made trademark infringement claims, but the Court did not find facts supporting direct
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`infringement by Defendants. The Court dismissed but gave Plaintiff leave to amend because the applicable
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`standards are narrower under the trademark infringement claims than those of copyright infringement claims.
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`The Court found that there were not facts to conclude that Defendants induced the allegedly infringing
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`websites to use Plaintiff’s trademarks. All that Defendants supplied was “the ability to accept certain credit
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`cards as payment, and this service did not have an apparent link to the alleged infringing activities.” (August
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`5, 2004 Order Granting Defendants Motion to Dismiss at 9:2-21.) Thus, Plaintiff failed to make a prima
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`facie case for contributory trademark infringement. With respect to the vicarious trademark infringement
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`claims, the Court held that Plaintiff did not plead facts to indicate an “intimate relation between Defendants
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`and allegedly infringing websites.” (August 5, 2004 Order Granting Defendants’ Motion to Dismiss at
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`10:1-2.) Instead, Plaintiff pled terms such as, “‘control the infringing content’ and ‘direct financial benefit,’”
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`which count for copyright infringement but are not relevant for vicarious trademark infringement. (Id. at
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`10:4-6.) As a result, the Court dismissed the trademark infringement claims with leave to amend.
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`Plaintiff also alleged wrongful use of a registered mark under California Business & Profession
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`Code § 14335. The Court dismissed that claim for lack of facts supporting the use of Plaintiff’s trademark
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`by Defendants. The Court also dismissed with leave to amend Plaintiff’s claim of aiding and abetting the
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`violation of rights of publicity in various models. The Court based its decision on the fact that Defendants
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`did not participate in the alleged illegal activities, they only provided financial services to the merchants.
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`(August 5, 2004 Order Granting Defendant Motion to Dismiss at 10:21-22.) Plaintiff also asserted a claim
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`for unfair competition under 15 U.S.C. § 1125(a), California Business & Profession Code §§ 17200 et
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`seq., and the common law. This Court dismissed those claims because Plaintiff did not allege any direct
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`wrongdoing, i.e., personal participation by Defendants. Based on the same reasons above, the Court
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`dismissed Plaintiff’s claim for libel with leave to amend. The remaining claims were dismissed with
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`prejudice.
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`Following the submission of the amended complaint on September 7, 2004, the Court heard a
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`second motion to dismiss by Defendants on November 15, 2004. That hearing resulted in a dismissal with
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`prejudice of Plaintiff’s remaining claims. (See December 3, 2004 Order Granting Defendants’ Motion to
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`Dismiss.) Although Plaintiff added some facts to its original complaint, those facts were not sufficient to
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`support Plaintiff’s claims under the legal standards. (Id. at 4:3-9.) Therefore, the Court dismissed
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`Plaintiff’s First Amended Complaint with prejudice. On December 15 and 17, 2004, Defendants filed for
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`attorneys’ fees.
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`III. STANDARDS
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`A.
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`Attorney Fees Under the Copyright Act
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`Under 17 U.S.C. § 505, district courts have judicial discretion to grant attorney fees to the
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`prevailing party in a copyright action. Fogerty v. Fantasy, Inc., 150 U.S. 517, 533 (1994). From the plain
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`language of § 505, courts cannot interpret that “successful plaintiffs are to be treated differently than
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`successful defendants.” Fantasy, 150 U.S. at 522. According to the legislative history and the spirit of the
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`Copyright Act, plaintiffs and defendants are encouraged to litigate their meritorious claims to the same
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`degree. As a result, there is no foundation to carry the “dual standard” which treats plaintiffs and
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`defendants differently. Id., at 527-533. Thus, in Fantasy, the United States Supreme Court held that there
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`is not an exact formula for how courts should exercise their discretion to grant attorney fees. See Id. at
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`527-533. Courts must make their determinations based on equitable circumstances.
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`Ultimately, when courts grant attorney fees, they have to support their decisions by analyzing facts
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`such as “the degree of success obtained, frivolousness, motivation, objective unreasonableness of both the
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`legal and the factual arguments, the need to advance considerations of compensation and deterrence, and
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`the purpose of the Copyright Act itself.” Jackson v. Axton, 25 F.3d. 884, 890 (9th Cir. 1994); Diamond
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`Star Building Corp., v. Freed, 30 F.3d. 503, 505 (4th Cir. 1994) (citing Lieb v. Topstone Indus., Inc., 788
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`F. 2d 151, 156 (3rd Cir. 1986)). These factors should be applied when they are consistent with the
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`purpose of the Copyright Act, which is not merely to discourage copyright infringement. Fantasy Inc., v.
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`Fogerty, 94 F.3d 553, 558 (9th Cir. 1996). “The policies served by the Copyright Act are more complex,
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`more measured, than simply maximizing the number of meritorious suits for copyright infringement.” Id. at
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`559. The court made clear that these factors must be applied in an impartial approach and they should be
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`analyzed on a case-by-case basis with the main responsibility resting on the “shoulders of the district
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`judge.” Lotus Development Corp. v. Borland International, Inc., 140 F.3d 70, 75 (1st Cir. 1998).
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`Moreover the factors are guidelines for courts to exercise their discretion as long they are faithful to the
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`purposes of the Copyright Act. Thus, courts cannot rely on these factors if they do not encompass those
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`purposes. Fogerty, 94, F.3d at 558.
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`B.
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`Attorney Fees Under the Lanham Act
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`Under 15 U.S.C. 1117(a), attorney fees are awarded to the prevailing party in a trademark action
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`only in “exceptional cases.” The Ninth Circuit has defined “exceptional” to mean a case that is “groundless,
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`unreasonable, vexatious, or pursued in bath faith.” Matrix Motor Co., v. Toyota Motor Sales U.S.A., Inc.,
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`No. 03-56359, No. 03-57199 2005 U.S. Dist. LEXIS 770, at 3 (9th Cir. 2004); Boney Inc.,v. Boney
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`Serv. Inc., 127 F.3d 821, 827 (9th Cir. 1997). Although bad faith of one of the parties can be one of the
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`elements to consider a case as an “exceptional” case, bad faith alone cannot determine attorney fees for a
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`prevailing party. “[O]ther exceptional circumstances may warrant a fee award.” Boney, 127 F. 3d at 827;
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`(citing Fasa Corp., v. Playmates Toys, Inc., 108 F.3d 140, (7th Cir. 1997)).
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`IV. DISCUSSION
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`As a preliminary matter, the discussion below incorporates Defendants’ demand for attorneys’ fees
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`under state trademark and other state claims because federal trademark and copyright claims dominate in
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`this action.
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`A.
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` Attorney Fees Under the Copyright Act
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`The Court relies on the four factors articulated in Jackson to evaluate whether Defendants in this
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`action are entitled to attorneys’ fees. Jackson, 25 F.3d. at 890.
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`1.
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`Plaintiff’s Copyright Claims Were Not Objectively Unreasonable.
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`The first factor is to determine whether Plaintiff’s claims were objectively unreasonable.
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`Defendants contend that the claims were unreasonable because the Plaintiff’s original and amended
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`complaints were dismissed. Defendants argue that even though dismissing a claim under FED. R. CIV. P.
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`12(b)(6) is generally disfavored, this Court dismissed Plaintiff’s complaint twice. Defendants contend that
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`Plaintiff’s theory of liability was based on “Defendants economic influence upon the alleged infringers”
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`instead of showing that Defendants actively contributed to the alleged infringing activities. Plaintiff’s “theory
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`of liability was contrary to settled copyright law and therefore objectively unreasonable.” (Joint Reply
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`Memo at 6:15-20.)
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`The Court is not persuaded by Defendants’ arguments because the fact that Plaintiff’s complaint
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`was dismissed twice is not dispositive on the “objectively unreasonable” prong. On dismissing Plaintiff’s
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`complaints, the Court followed well established legal standards for motions pursuant to FED. R. CIV. P.
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`12(b)(6). Particularly, the Court analyzed Plaintiff’s original complaint by following the legal standards
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`articulated in Conley v. Gibson, 355 U.S. 41, 45-46 (1957) and Usher v. City of Los Angeles, 828 F.2d
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`556, 561 (9th Cir. 1987). Under these well established standards, this Court found potential merit to grant
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`Plaintiff’s leave to amend.
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`The Court directed the Plaintiff to plead facts that would demonstrate a “relationship between the
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`financial services provided by the Defendants and the alleged infringing activity as opposed to the mere
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`operation of the website business.” (August 5, 2004 Order Granting Defendants’ Motion to Dismiss at 7:2-
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`3.) The Court’s direction came from copyright law which requires that a plaintiff claiming contributory
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`copyright infringement, shows that “defendant (1) had knowledge of the infringing activity; and (2) induced,
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`or materially contributed to that infringing activity.” (August 5, 2004 Order Granting Defendants’ Motion to
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`Dismiss at 4:10-12.) The Court found that Plaintiff satisfied the first element when it alleged that
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`Defendants knew about the infringement. Defendants did not dispute this fact. ( Id. at 4:14-15.)
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`However, Plaintiff did not allege facts showing that Defendants either induced or contributed to the alleged
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`infringement activity. The Court ultimately rejected Plaintiff’s argument that Defendants’ financial services
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`could constitute a material contribution to the infringement. (Id. at 6:14-17.)
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`In addition, the Court ordered Plaintiff to amend the original complaint on the vicarious copyright
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`infringement claim. Although the Court accepted Plaintiff’s argument that Defendants’ payment services
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`might indicate a financial benefit to Defendants, the Court instructed Plaintiff to establish facts regarding
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`Defendants’ rights or abilities to control the alleged infringing conduct. Thus by granting leave to amend, the
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`Court believed that it was possible for Plaintiff to allege sufficient facts to state claims from which relief may
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`be granted. Ultimately, the facts pled by Plaintiff did not fulfill the standards required by law. In light of the
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`potential claims, it could not be said that Plaintiff’s claims were objectively unreasonable.
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`2.
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`Plaintiff’s Copyright Claims Were Not Frivolous.
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`Frivolousness is another factor courts use to determine whether to grant attorney fees in a copyright
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`action. Jackson v. Axton, 25 F.3d. at 890. The United States Supreme Court has established that a
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`frivolous claim is one in which the factual contention is “clearly baseless,” such as factual claims that are
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`“fantastic or delusional scenarios.” See Neitzke v. Williams, 490 U.S. 324, 325-328 (1989). United States
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`Supreme Court has also held that though a claim is not successful, one cannot conclude that it is frivolous.
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`Hawaiian Engraving & MFG, Inc., v. Fujikami, No. 90-15997, 1991 U.S. Dist. LEXIS 26816 at *2 (9th
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`Cir. 1991). Defendants contend that the amended complaint was frivolous because Plaintiff’s amended
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`complaint lacked facts to support its claims, and that the amended complaint was not materially different
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`from its original complaint. (Joint Memo at 6:22-7:2, MasterCard’s Motion to dismiss at 9:14-17.)
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`The Court is not persuaded by Defendants argument because this is a case where the alleged facts
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`presented a close question of law. Undisputed facts pled by Plaintiff, such as, the existence of a valid
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`copyright’s holder, that an infringement of those copyrights had occurred, and that Defendants had
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`knowledge of the infringing activity, and had obtained a financial benefit, presented valid questions as to the
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`merits of the claims. However, the fact that a direct nexus with the infringement and control necessary to
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`prevent vicarious or contributory copyright infringement were not present as required by the current legal
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`standards did not make Plaintiff’s claims frivolous.
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`3.
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`Plaintiff Presented Complex and Novel Issues.
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`The Court considers it important to analyze whether the issues presented by Plaintiff were complex
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`or novel. Although a successful defense may support attorneys’ fees, the complexity of the case is also a
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`factor. Lotus Development Corp. v. Borland International, 140 F.3d 70, 75 (1st Cir. 1998). Granting
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`attorneys’ fees is disfavored when a plaintiff pursues an action in good faith in an unsettled area of law and
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`the parties have alike financial resources. Id. at 74 (citing McCulloch v. Albert E. Price, Inc., 823 F.2d
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`316, 322 (9th Cir. 1987)). The Court dismissed Plaintiff’s First Amended Complaint based on the legal
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`standards established in Grokster Ltd., which contains the present test for copyright infringement.
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`(December 3, 2004 Order Granting Defendants’ Motion to Dismiss at 6-7.) (citing Metro-Goldwyn-Mayer
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`Studios, Inc., v. Grokster Ltd., 380 F.3d 1154 (9th Cir. 2004). The Grokster court held that although
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`copyright infringement standards are defined by binding legal precedents, courts must acknowledge the fast
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`track legal environment surrounding copyright issues as applied in cyberspace cases.
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`This case involves the usage of the Internet services. It is evident that the innovation of technologies
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`or services on the Internet has produced an increase of participants in the Internet market. These
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`participants have generated diverse transactions and thus have created a multitude of legal effects that may
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`not be covered by current legal standards. Although Plaintiff alleged that Defendants’ financial services to
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`merchants contributed directly to Plaintiff’s copyright infringement, under the current standards, Defendant’s
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`economic influence over copyright infringers did not constitute a direct relationship between Defendants’
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`activity and Stolen Content Website’s Defendants’ infringing acts. According to Grokster, courts have to
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`minimize risks when they are either trying to restructure “liability theories,” or when they face with the
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`dilemma of analyzing complex and novel issues that do not fit into settled legal standards. See Grokster
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`Ltd., 380 F.3d at 1154-1156. The issues raised by the Plaintiff were novel and complex in light of the
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`newly formed Internet market. Recognizing this, the Court believes that the restructuring of the copyright
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`law and its liability proposition to address technological advances is a matter for the legislature. Thus, it is
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`important to note that though the Court dismissed the Plaintiff’s claims because they did not fit within the
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`current copyright infringement standards, the Court recognizes that those claims may have a place in future
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`legislation in this ever evolving Internet environment.
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`4.
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`By Diligently Pursuing Their Claims and Defenses, Both Parties’ Conduct Met
`the Objectives of the Copyright Act.
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`The Ninth Circuit has emphasized that “in considering motions for attorneys’ fees under § 505 of
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`the Copyright Act, the district court should ‘seek to promote the Copyright Act’s objectives.’” Magnuson
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`v. Video Yesteryear, 85 F.3d. 1424, 1432 (9th Cir. 1996). In this case, although Plaintiff presented a set
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`of facts that did not establish copyright infringement, Plaintiff was attempting to protect its copyrights which
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`is one of the objectives of the Copyright Act. On the other hand, Defendants were also seeking protection
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`from liability. As the Ninth Circuit explained in Grokster Ltd., cases where there are novel and complex
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`legal issues in an evolving environment such as the Internet, both Defendants and Plaintiff in their respective
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`pursuits ultimately further the purposes of the Act. Novel and complex issues such as the ones presented
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`by Plaintiff, have to be presented before courts to test existing laws against technological innovation and the
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`economic prosperity under the fundamental framework of the Copyright Act. To grant attorneys’ fees here
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`would constitute a kind of punishment to the party who is presenting new issues in an unsettled area of law.
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`5.
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`There Is No Need For Deterrence In This Instance.
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`Defendants assert that because Plaintiff’s claims were without merit and dismissed by this Court,
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`Plaintiff and others should be prevented from filing similar claims in the future. In Lotus Development
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`Corp., the court held that there is no need for deterrence when neither party has any improper motivation in
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`litigating a case, both parties have an important economic interest, and the matter of the litigation has some
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`importance for Copyright law. Development Corp., 140 F.3d at 74. Thus, absent bad faith, the Court
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`cannot punish Plaintiff and other copyright holders in the future for trying to protect their copyrights. In
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`looking of the magnitude of the allegations and potential liabilities, both parties had important economic
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`interest in the case and thus, rightfully litigated their claims.
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`B.
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`Attorney Fees Under the Lanham Act
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` “Exceptional circumstances can be found when the non-prevailing party’s case is ‘groundless,
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`unreasonable, vexatious, or pursued in bad faith.’” Gracie USA v. Rorion Gracie , 217 F.3d 1060, 1070
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`(9th Cir. 2000) (citing Boney Serv. Inc., 127 F. 3d at 827). Although Plaintiff was not successful in its
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`trademark infringement claims, the Court does not find that Plaintiff’s claims were “groundless,
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`unreasonable, vexatious, or pursued in bad faith.” Granted that this case involved issues outside of the
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`limits of any previous copyrights and trademark decisions, Plaintiff’s claims may be construe as an attempt
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`to extend existing laws because a close question of law was presented. As the Court explained in the
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`Copyright Act claims, complex and novel legal issues related to the Internet cannot be considered as a
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`groundless or unreasonable only because they do not meet the current legal standards. It is reasonable for
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`a valid trademark holder to attempt to protect its intellectual property rights, especially when the issues
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`arose out of an unsettled area of law--the Internet.
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`V. CONCLUSION
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`For the foregoing reasons, this Court DENIES Defendants’ Motion for Attorneys’ Fees.
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`Dated: August 12, 2005
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` /s/ James Ware
`JAMES WARE
`United States District Judge
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`THIS IS TO CERTIFY THAT COPIES OF THIS ORDER HAVE BEEN DELIVERED TO:
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`Andrew P. Bridges abridges@winston.com
`Jeffrey Neil Mausner jeffmausner@bmrlaw.com
`Mark T. Jansen mtj@townsend.com
`Michael H. Page mhp@kvn.com
`Robert James Slaughter rjs@kvn.com
`Stephen Davids Rothschild Rothschild@khpblaw.com
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`Dated: August 12, 2005
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`Richard W. Wieking, Clerk
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`By: /s/ JW Chambers
`Ronald L. Davis
`Courtroom Deputy
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