Case 3:23-cv-02830-WHO Document 27 Filed 01/22/24 Page 1 of 14
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`UNITED STATES DISTRICT COURT
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`NORTHERN DISTRICT OF CALIFORNIA
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`THUMBTACK, INC.,
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`Plaintiff,
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`v.
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`LIAISON, INC.,
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`Case No. 23-cv-02830-WHO
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`ORDER GRANTING MOTION TO
`DISMISS IN PART
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`Re: Dkt. No. 17
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`Defendant.
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`Defendant Liaison, Inc.’s motion to dismiss is granted in part and denied in part. Plaintiff
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`Thumbtack, Inc.’s claim for copyright infringement is dismissed in part because it lacks specificity
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`and needs clarification on the scope of the claim. Thumbtack’s trade dress and associated Unfair
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`Competition Law claims also lack specificity and are dismissed with leave to amend so that
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`Thumbtack can identify with particularity the elements on Liaison’s’s website that allegedly
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`violate its protected trade dress.
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`BACKGROUND
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`Thumbtack is the owner and operator of www.thumbtack.com (“Thumbtack Website”), a
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`website that connects consumers seeking services with industry professionals who offer a wide
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`range of services, e.g., painting, appliance repair, home cleaning, gardening, wedding planning,
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`and tax preparation. Compl. ¶¶ 3-4. It alleges that Liaison operates multiple websites that
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`compete with Thumbtack (e.g., www.tutors.com, www.lessons.com, www.fash.com,
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`www.thervo.com, and www.homeguide.com) and asserts that these “Infringing Sites” copy the
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`content of Thumbtack’s website, “unlawfully display Thumbtack’s exact copyrighted content and
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`then mimic the overall visual trade dress” of Thumbtack’s site on Liaison’s competing Infringing
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`Sites. Id. ¶¶ 5-8. Thumbtack specifically alleges that Liaison has copied the following copyrighted
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`information from its site:
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`Case 3:23-cv-02830-WHO Document 27 Filed 01/22/24 Page 2 of 14
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`a. The text displayed throughout the Thumbtack Website;
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`b. The Non-Discrimination Policy on the Thumbtack Website;
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`c. Safety Page on the Thumbtack Website;
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`d. Privacy Policy on the Thumbtack Website; and
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`e. The unique sequence of text and questions used by Thumbtack to
`facilitate the registration of professionals on the Thumbtack Website
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`Compl. ¶¶ 29-30. Thumbtack also alleges Liaison has copied elements of Thumbtack’s protected
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`trade dress from its website, including:
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`a. A unique font/typography that was created for Thumbtack’s
`exclusive use
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`b. A unique color scheme involving “Thumbtack blue” text and
`navigation buttons on white page background
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`c. Unique custom-made icons
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`d. Unique page layouts, diagrams, menus, and a distinct onboarding
`flow for professional users.
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`Together “the unique font/typography, colors, icons, page layouts, diagrams, menus, and a distinct
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`onboarding flow for professional users make up design elements of Thumbtack’s Website [to]
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`consist of protectable trade dress (“Thumbtack Trade Dress”).” Id. ¶¶ 32-33.
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`In the Complaint, Thumbtack identified and attached examples of Liaison’s alleged use of
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`Thumbtack’s Copyrighted Materials and Trade Dress elements. Id. ¶¶ 57-58 & Exs. 3-4. Based
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`on the identified conduct, Thumbtack sued Liaison for: (a) copyright infringement, in violation of
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`the Copyright Act of 1796 (17 U.S.C. §§ 101 et seq.); (b) trademark infringement, false
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`designation of origin and unfair competition in violation of Section 43(a) of the Lanham Act (15
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`U.S.C. § 1125(a)); and (c) violation of California Business & Professions Code § 17200, et seq.
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`Liaison has moved to dismiss each of the claims, Dkt. No. 17, arguing that the claims fail because
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`Thumbtack cannot claim copyright over the language it identified and cannot protect as trade dress
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`“basic, functional website layouts and designs.” Mot. at 17.1
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`1 In support of its motion, and through the Declaration of Meng Zhong (Dkt. No. 17-1), Liaison
`asks me to take judicial notice of Thumbtack’s copyright registration and current versions of the
`parties’ websites. Thumbtack does not address or object to notice of these documents and they are
`noticeable under the doctrine of incorporation, given Thumbtack’s central reliance on them in its
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`LEGAL STANDARD
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`Under FRCP 12(b)(6), a district court must dismiss a complaint if it fails to state a claim
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`upon which relief can be granted. To survive a Rule 12(b)(6) motion to dismiss, the plaintiff must
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`allege “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v.
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`Twombly, 550 U.S. 544, 570 (2007). A claim is facially plausible when the plaintiff pleads facts
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`that “allow the court to draw the reasonable inference that the defendant is liable for the
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`misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citation omitted). There
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`must be “more than a sheer possibility that a defendant has acted unlawfully.” Id. While courts do
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`not require “heightened fact pleading of specifics,” a plaintiff must allege facts sufficient to “raise
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`a right to relief above the speculative level.” Twombly, 550 U.S. at 555, 570.
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`In deciding whether the plaintiff has stated a claim upon which relief can be granted, the
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`court accepts the plaintiff’s allegations as true and draws all reasonable inferences in favor of the
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`plaintiff. See Usher v. City of Los Angeles, 828 F.2d 556, 561 (9th Cir. 1987). However, the court
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`is not required to accept as true “allegations that are merely conclusory, unwarranted deductions of
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`fact, or unreasonable inferences.” In re Gilead Scis. Sec. Litig., 536 F.3d 1049, 1055 (9th Cir.
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`2008). If the court dismisses the complaint, it “should grant leave to amend even if
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`no request to amend the pleading was made, unless it determines that the pleading could not
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`possibly be cured by the allegation of other facts.” Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir.
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`2000). In making this determination, the court should consider factors such as “the presence or
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`absence of undue delay, bad faith, dilatory motive, repeated failure to cure deficiencies by
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`previous amendments, undue prejudice to the opposing party and futility of the proposed
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`amendment.” Moore v. Kayport Package Express, 885 F.2d 531, 538 (9th Cir. 1989).
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`Complaint. Khoja v. Orexigen Therapeutics, Inc., 899 F.3d 988, 1002 (9th Cir. 2018) (judicial
`notice is appropriate if the complaint “refers extensively” to the document or the document forms
`“the basis” of the plaintiff’s claim). Thumbtack does object to judicial notice of the contents
`“External Materials,” offered by Liaison, including other parties’ websites/results of google
`searches (Zhong Decl., Ex. 2), a screenshot from a Thumbtack website in 2018 (Zhong Decl., Ex.
`6), and an archived version of a Liaison website from 2015 (Zhong Decl., Ex. 7). Oppo. at 6-8. I
`agree with Thumbtack that it is inappropriate to take judicial notice of the External Materials that
`were not referenced in the Complaint and have not been authenticated.
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`Case 3:23-cv-02830-WHO Document 27 Filed 01/22/24 Page 4 of 14
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`I.
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`COPYRIGHT
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`A.
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`Legal Standard
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`DISCUSSION
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`“To prove copyright infringement, a plaintiff must demonstrate (1) ownership of the
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`allegedly infringed work and (2) copying of the protected elements of the work by the defendant.”
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`Pasillas v. McDonald’s Corp., 927 F.2d 440, 442 (9th Cir. 1991). If there is no direct evidence of
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`copying, a plaintiff may prove this element through circumstantial evidence that (1) the defendant
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`had access to the copyrighted work prior to the creation of defendant’s work and (2) there is
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`substantial similarity of the general ideas and expression between the copyrighted work and the
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`defendant’s work. Sid & Marty Krofft Television Prods., Inc., v. McDonald’s Corp., 562 F.2d
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`1157, 1162 (9th Cir. 1977), superseded on other grounds by 17 U.S.C. § 504(b).
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`B.
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`Application
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`Thumbtack alleges Liaison violates it copyright when it copied:
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`a. The text displayed throughout the Thumbtack Website;
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`b. The Non-Discrimination Policy on the Thumbtack Website;
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`c. Safety Page on the Thumbtack Website;
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`d. Privacy Policy on the Thumbtack Website; and
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`e. The unique sequence of text and questions used by Thumbtack to
`facilitate the registration of professionals on the Thumbtack Website
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`Compl. ¶¶ 29-30.
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`As an initial matter, Thumbtack cannot base its copyright act claim on “text displayed
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`throughout” the Website (item a. above). It must identify actionable copying with specificity
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`under Rule 8. Similarly, Thumbtack cannot base this claim on copying of the “unique sequence of
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`text and questions used by Thumbtack” without identifying with specificity the specific sequences
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`– present on the registered version of Thumbtack’s website – that was used by Liaison on
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`specifically identified portions of the Liaison sites. See, e.g., Livingston v. Morgan, No. C-06-2389
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`MMC, 2006 WL 8459602, at *3 (N.D. Cal. July 31, 2006) (“A complaint for copyright
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`infringement fails to satisfy the requirements of Rule 8(a) if it does not allege the specific
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`Case 3:23-cv-02830-WHO Document 27 Filed 01/22/24 Page 5 of 14
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`copyrighted work that has been infringed.”). It may be that Thumbtack is claiming substantial
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`copying of its website in its entirety – and aims to prove that Liaison copied Thumbtack’s website
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`in its entirety or otherwise copied enough original text considering the entirety of Thumbtack’s
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`site to be liable for infringement. But it is not clear whether that is the basis of Thumbtack’s
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`copyright infringement claim or whether Thumbtack is alleging only that Liaison copied specific
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`portions (pages or chunks of pages) from its website. On amendment, Thumbtack shall make its
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`theory of copyright infringement clear; namely, whether it is claiming wholesale copying of its
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`website or simply copying of discrete portions.2
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`The Complaint, as noted above at items b. through e., identifies a few specific portions of
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`text from Thumbtack’s website that it claims Liaison copied almost verbatim: Thumbtack’s
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`“Safety Page,” “Non-Discrimination Policy,” and “Privacy Policy.” Compl. ¶ 57. Additional
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`examples are identified in Exhibit 3, including “Smart Hiring,” “Review the pro’s profile,”
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`“Information We Collect,” “When Thumbtack Discloses Your Information,” “Updating, Deleting
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`and Correcting Your Information,” and “Help for pro” and “Help for customer” pages. Dkt. No.
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`1-3. I will consider only these portions of Thumbtack’s website as falling under the copyright
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`claim.
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`As an initial matter, Thumbtack contends Liaison cannot – in its motion to dismiss –
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`challenge the copyrightability of the text that Thumbtack claims Liaison improperly copied
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`because copyrightability is a question of fact and usually not appropriate for determination at the
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`motion to dismiss stage. See, e.g., Tracy Anderson Mind & Body, LLC v. Roup, No. CV 22-4735-
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`RSWL-EX, 2022 WL 17670418, at *3 (C.D. Cal. Dec. 12, 2022) (“motion to dismiss arguments
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`2 Relatedly, Liaison argues repeatedly that Thumbtack cannot claim copyright protection over the
`selection and arrangement of the images and text on Thumbtack’s website because Thumbtack’s
`copyright registration covered only the text of Thumbtack’s site and not, for example, “[s]election,
`coordination, and/or arrangement of” “text and photographs.” Mot. at 2, 7, 9 & Ex. 1
`(registration); Reply 5-6; see also Compendium of U.S. Copyright Office Practices § 1009.6(A)
`(3d ed. 2021) (hereafter “Compendium”); VHT, Inc. v. Zillow Grp., Inc., 69 F.4th 983, 990 (9th
`Cir. 2023) (the Compendium is “a non-binding administrative manual,” that can be followed to the
`“extent it has the ‘power to persuade.’” (quoting Georgia v. Public.Resource.Org, Inc., 140 S. Ct.
`1498 (2020)). Thumbtack did not address this argument in its opposition or identify any caselaw
`in support of its ability to claim copyright protection over the selection and arrangement of images
`and text, despite its limited copyright in the text of its site.
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`Case 3:23-cv-02830-WHO Document 27 Filed 01/22/24 Page 6 of 14
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`that copyrighted works do not qualify for copyright protection based on a ‘detailed factual
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`analysis’ of the works” are inappropriate). That is generally true, but the challenges brought by
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`Liaison are not based on “detailed” factual analyses to determine substantial similarities between
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`the two websites or to determine whether the general subject matters are copyrightable. See id. at
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`*3 (explaining that whether the “functional exercise movements” combining “routines combining
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`choreography, fitness, and cardiovascular movement” were ultimately “unprotectable ‘ideas’ or
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`‘processes’” would require a “detailed factual analysis unfit for ruling on a motion to dismiss”);
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`see also Thomson v. HMC Grp., No. CV1303273DMGVBKX, 2014 WL 12589312, at *3 (C.D.
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`Cal. Feb. 18, 2014) (determining whether “technical drawings and architectural works” are
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`unprotected as “(1) functional, (2) designs of interior rooms, and (3) merely ideas and concepts”
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`not appropriate to determine on a motion to dismiss).
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`I will consider each of Liaison’s arguments below.
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`1.
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`Non-Discrimination Policy
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`Liaison argues that it cannot be liable as a matter of law for alleged copying of
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`Thumbtack’s non-discrimination policy because only “thin” copyright protection extends to
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`copyrighted “policies or forms,” and infringement will be found only where the defendant used
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`“virtually identical text” or copied the “arrangement” and manner of presentation. Mot. at 6-7
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`(citing cases).3 Despite admitted similarities in what Liaison claims is “stock language” used in
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`the Non-Discrimination Policies on Liaison’s and Thumbtack’s sites, Liaison argues that the
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`presentation of its Non-Discrimination Policy was significantly different than the presentation on
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`Thumbtack’s site – e.g., Liaison used bullet points to present its information – making the
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`presentations on the different websites substantially dissimilar and defeating protection as a matter
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`of law. Whether the use of bullet points or other formatting differences means the policies are not
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`3 See, e.g., Rassamni v. Fresno Auto Spa, Inc., 365 F. Supp. 3d 1039, 1046–47 (E.D. Cal. 2019)
`(“forms are sometimes characterized as a type of unprotectable functional work. . . . Works
`containing strong functional elements are entitled only to ‘thin’ copyright protection.”); Digby
`Adler Grp. LLC v. Image Rent a Car, Inc., 79 F. Supp. 3d 1095, 1102 (N.D. Cal. 2015) (“It is
`undisputed that Digby has a registered copyright for the text of the bandago.com website. . . . It is
`also undisputed that the Corporate Defendants used language copied almost verbatim from
`Digby’s website on the Image website (though they did so before the copyright was registered).”).
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`otherwise sufficiently or substantially similar depends upon a weighing of the similarities between
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`the text and the differences in the formatting, and is generally not appropriate to resolve on a
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`motion to dismiss. See Zindel as Tr. for David Zindel Tr. v. Fox Searchlight Pictures, Inc., 815 F.
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`App'x 158, 159 (9th Cir. 2020) (noting courts should be “cautious” before dismissing cases for
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`lack of substantial similarity on a motion to dismiss, unless “the similarities between the two
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`works are only in uncopyrightable material or are de minimis.”); see also Changing World Films
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`LLC v. Parker, No. CV229021DMGPVCX, 2023 WL 8044348, at *5 (C.D. Cal. Sept. 12, 2023)
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`(same).
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`Thumbtack says that the text of its Non-Discrimination Policy allegedly copied by Liaison
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`(see Ex. 3, Dkt. No. 1-3; Compl. ¶ 39) is protectible as “original” content. Liaison argues that
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`Thumbtack simply used unprotectable “form” language that basic internet searches demonstrate is
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`routinely used by thousands of companies and, therefore, not protectible as original content. But
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`the internet searches Liaison relies on are not judicially noticeable. See supra. Whether the
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`content at issue is original, protectible content or unprotected form language must be assessed
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`based on evidence and cannot be resolved at this motion to dismiss stage. See, e.g., Pallen
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`Martial Arts, LLC v. Shir Martial Arts, LLC, No. 13-CV-05898-JST, 2014 WL 2191378, at *6
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`(N.D. Cal. May 23, 2014 (denying motion to dismiss, despite defendant allegation “that the
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`contract at issue here is cobbled together from other form contracts” because that determination
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`was inappropriate on motion to dismiss stage); see also Rassamni v. Fresno Auto Spa, Inc., 365 F.
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`Supp. 3d 1039, 1049 (E.D. Cal. 2019) (liability disclaimer was “still entitled to thin protection,”
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`and court could not determine “as a matter of law that thin protection would not bar the alleged
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`infringement,” given the alleged infringer’s use of “virtually identical” language that changes only
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`a few words and added additional text).
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`2.
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`Smart Hiring Text
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`Thumbtack’s next example of copying is Liaison’s use of the phrase “Smart Hiring on
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`HomeGuide” superimposed on a stock image of someone making measurements where
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`Thumbtack’s copyrighted website uses the phrase “Smart Hiring on Thumbtack” superimposed on
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`a photo of a group taking notes. Liaison argues that because Thumbtack’s copyright extends only
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`to “text,” its copyright cannot extend to use of similar stock images on the competing sites.
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`Liaison also argues that the phrase “Smart Hiring” is not protectible because copyright protection
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`does not extend to use of “titles, short phrases, standard navigational text, or other insufficiently
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`creative or functional elements.” Mot. at 7 (citing Compendium § 1006.1); see also 37 C.F.R. §
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`202.1 (“examples of works not subject to copyright and applications for registration of such works
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`cannot be entertained [include] (a) Words and short phrases such as names, titles, and slogans;
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`familiar symbols or designs; mere variations of typographic ornamentation, lettering or coloring;
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`mere listing of ingredients or content.”).
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`In response, Thumbtack does not address the Compendium or whether “SmartHiring” is
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`not an unprotected short phrase, title, or slogan. Instead, Thumbtack argues that Liaison is
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`impermissibly attempting to “parse” discrete elements from “Thumbtack’s Copyrighted Material”
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`as a whole, which is inappropriate because Thumbtack is claiming copyright protection for the
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`“entirety of the content of its website, including the selection and arrangement of the images and
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`text displayed throughout.” Oppo. at 10; see also L.A. Printex Indus., Inc. v. Aeropostale, Inc.,
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`676 F.3d 841, 849 (9th Cir. 2012), as amended (“Original selection, coordination, and
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`arrangement of unprotectible elements may be protectible expression.”).
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`There are two problems with this argument. First, while it may be possible to register the
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`selection and arrangement of uncopyrightable content for a website, in order to do that Thumbtack
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`would have had to disclose that intent in its application; there is no evidence Thumbtack did so.
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`See Compendium § 1009.6(A) (“If the applicant intends to register the authorship involved in
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`selecting, coordinating, and/or arranging the content that appears on a website, the applicant may
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`use any of the terms listed below . . . . Selection, coordination, and/or arrangement of [specify
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`material that has been selected, coordinated, and/or arranged, e.g. ‘selection and arrangement of
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`text and photographs’].”).
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`Second, “[e]xpressions that are standard, stock, or common to a particular subject matter or
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`medium are not protectable under copyright law.” Satava v. Lowry, 323 F.3d 805, 810 (9th
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`Cir.2003); see also Apple Computer, Inc. v. Microsoft Corp., 35 F.3d 1435, 1444 (9th Cir. 1994)
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`(“when similar features in a [copyrighted work] are ‘as a practical matter indispensable, or at least
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`standard, in the treatment of a given [idea],’ they are treated like ideas and are therefore not
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`protected by copyright”) (quoting Frybarger v. International Business Machines Corp., 812 F.2d
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`525, 530 (9th Cir.1987)).
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`Following Satava, a judge in the Central District rejected protection of an image displaying
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`graphics of named glasses juxtaposed with a photograph of the glasses being worn by a model.
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`Salt Optics, Inc. v. Jand, Inc., No. SACV10828DOCRNBX, 2011 WL 13055856, at *5 (C.D. Cal.
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`Mar. 4, 2011). Copyright protection was denied not because the elements were unprotectable (the
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`court recognized that “certain combinations of unprotectable elements may qualify for copyright
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`protection (e.g. music notes combined together to form a composition)”), but because
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`“‘commonplace’ or ‘typical’ combinations do not.” Id. at *5 (quoting Satava, 323 F.3d at 811–
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`12); see also id. (“Plaintiff’s alleged website display is one such “commonplace” combination of
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`elements. Plaintiff has asserted no allegations tending to show that Plaintiff organized these
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`typical elements of website sales in any sort of unique, creative way. Rather, Plaintiff's
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`organization, as alleged, strikes the court as “standard, stock [and] common,” [] and thus unworthy
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`of copyright protection.”).
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`The use of the term Smart Hiring cannot itself be protected. Its placement over a stock
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`photograph of someone using design tools does not amount to anything more than a commonplace
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`combination that is not protectable as a matter of law.
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`3.
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`Review the Pro’s Profile/Privacy Policy/Information We Collect/When
`[Company] Discloses Your Information and Updating/Deleting and
`Correcting Your Information
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`As with the Non-Discrimination Policy, there are a few sentences within the Review the
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`Pro section that could be considered copied verbatim, but it does not appear that Liaison copied
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`the whole segment or even whole sections (although there are obvious similarities between the
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`headings used). The Privacy Policy, in the examples provided by Thumbtack, appears to copy
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`even more text from the Thumbtack site (assuming the truth of Thumbtack’s allegations), as
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`almost the whole section on Liaison’s cite appears to use materially identical language to
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`Thumbtack’s Privacy Policy. Finally, the Information We Collect, When [Company] Discloses
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`Your Information, and Updating/Deleting and Correcting Your Information segments from
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`Northern District of California
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`United States District Court
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`Case 3:23-cv-02830-WHO Document 27 Filed 01/22/24 Page 10 of 14
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`Liaison’s sites provided by Thumbtack are close to verbatim to the text segments on the
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`Thumbtack site.
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`As above, whether these segments are unprotected “stock language” that is routinely used
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`by many sites – and as a result, not protectible – or whether any true copying of “original
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`language” with minor differences is sufficient to show copyright violation, cannot be resolved on a
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`motion to dismiss.
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`4.
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`Help Pages
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`Finally, Thumbtack alleges impermissible copying of its help pages, for the pros and for
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`the end-users. Those pages list icons, with three out of four identical titles on both sites. E.g.,
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`“Getting started,” “Projects,” and “Messaging and Reviewing Pros.” Thumbtack alleges copying
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`only of the titles on those pages. As Liaison argues, under the Compendium the Copyright Office
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`has determined that certain elements of a website are not copyrightable, including: (1)
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`“[f]unctional design elements”; (2) “[t]he layout, format, or ‘look and feel’ of a website”; and (3)
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`“[c]ommon, unoriginal material, such as names, icons, or familiar symbols.” Compendium § 1007.
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`Liaison also notes that it uses different icons and different phrases for a few of the help topics.
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`Thumbtack wholly fails to address this argument in its opposition. If Thumbtack is only
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`alleging copying of the titles, that would appear to run afoul of the Compendium. If Thumbtack is
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`alleging impermissibly copying something more from these pages, that is not clear.
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`Therefore, the copyright claim regarding the SmartHiring text and the Help Pages is
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`DISMISSED. Thumbtack is given leave to amend to identify with more specificity whether it
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`claims copyright protection over the text of its website in its entirety. The copyright act claim
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`with respect to the policies (including the Non-Discrimination Policy, and the Review the Pro’s
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`Profile/Privacy Policy/Information We Collect/When [Company] Discloses Your Information and
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`Updating/Deleting and Correcting Your Information pages) remains.
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`II.
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`TRADE DRESS
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`A.
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`Legal Standard
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`“In addition to protecting registered marks, the Lanham Act, in § 43(a), gives a producer a
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`cause of action for the use by any person of ‘any word, term, name, symbol, or device, or any
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`Northern District of California
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`United States District Court
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`Case 3:23-cv-02830-WHO Document 27 Filed 01/22/24 Page 11 of 14
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`combination thereof ... which ... is likely to cause confusion ... as to the origin, sponsorship, or
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`approval of his or her goods....’” Wal-Mart Stores, Inc. v. Samara Bros., 529 U.S. 205, 209
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`(2000) (quoting 15 U.S.C. § 1125(a)). “Trade dress involves the total image of a product and may
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`include features such as size, shape, color, color combinations, texture, or graphics[,]” and
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`“protection is broader in scope than trademark protection, both because it protects aspects of
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`packaging and product design that cannot be registered for trademark protection and because
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`evaluation of trade dress infringement claims requires the court to focus on the plaintiff’s entire
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`selling image, rather than the narrower single facet of trademark.” Vision Sports, Inc. v. Melville
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`Corp., 888 F.2d 609, 613 (9th Cir. 1989).
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`To prove a trade dress infringement claim, plaintiff must prove: “(1) the trade dress is
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`inherently distinctive or has acquired distinctiveness through secondary meaning; (2) there is a
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`likelihood that the public will be confused by the infringing use; and (3) the trade dress is
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`nonfunctional.” Stephen W. Boney, Inc. v. Boney Servs., Inc., 127 F.3d 821, 828 (9th Cir. 1997).
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`In evaluating a trade dress claim, a court must not focus on individual elements, “but rather on the
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`overall visual impression that the combination and arrangement of those elements create.” Clicks
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`Billiards, Inc. v. Sixshooters, Inc., 251 F.3d 1252, 1259 (9th Cir.2001). “Trade dress is the
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`composite tapestry of visual effects.” Id.
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`B.
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`Application
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`Liaison argues that Thumbtack fails to identify the protected aspects of its trade dress with
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`sufficient specificity. In Sleep Sci. Partners v. Lieberman, No. 09-04200 CW, 2010 WL 1881770,
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`at *3 (N.D. Cal. May 10, 2010), the court dismissed with leave to amend a website trade dress
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`claim based, as here, on the alleged misappropriation of the “look and feel” of a site “including,
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`but not limited to, the size and location of text, the size and location of graphics, the features that it
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`offers and the location of hyperlinks of those features.” Id. The court dismissed because
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`“[a]lthough [plaintiff] has cataloged several components of its website, Plaintiff has not clearly
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`articulated which of them constitute its purported trade dress. Notably, Plaintiff employs language
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`suggesting that these components are only some among many, which raises a question of whether
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`it intends to redefine its trade dress at a future stage of litigation. Without an adequate definition of
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`Northern District of California
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`United States District Court
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`Case 3:23-cv-02830-WHO Document 27 Filed 01/22/24 Page 12 of 14
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`the elements comprising the website’s “look and feel,” [defendant] is not given adequate notice.”
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`Id. at *3; see also Salt Optics, Inc. v. Jand, Inc., No. SACV 10-0828 DOC, 2010 WL 4961702, at
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`*5 (C.D. Cal. Nov. 19, 2010) (dismissing website trade dress claim because while “Plaintiffs
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`describe these [allegedly protected trade dress] elements with a certain amount of detail, absent
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`from the FAC is any attempt to synthesize these elements in order to describe the way that the
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`listed elements, in conjunction, combine to create the website's protectible ‘look and feel.’ The
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`lack of any such synthesis, in conjunction with Plaintiff's expressly stated intention to incorporate
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`other elements of the website into the trade dress claim at a later stage, gives the Court pause.”);
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`Parker Waichman LLP v. Gilman L. LLP, No. 12-CV-4784 JS AKT, 2013 WL 3863928, at *4
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`(E.D.N.Y. July 24, 2013) (dismissing web site trade dress claim where plaintiff identified a few,
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`but not all, elements and failed to “synthesize” and explain how those features “combine to create
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`the website’s protectable ‘look and feel.’” (quoting Salt Optics, 2010 WL 4961702, at *5)).
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`Liaison contends that Thumbtack’s Complaint suffers from the same defects. In paragraph
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`32 of its Complaint, and Exhibit 4, Thumbtack provides “examples” of the unique design and
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`protected trade dress elements of its website, including:
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`a. A unique font/typography that was created for Thumbtack’s
`exclusive use;
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`b. A unique color scheme involving “Thumbtack blue” text and
`navigation buttons on white page background (depicted below);
`. . .
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`c. Unique custom-made icons (depicted below); and
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`d. Unique page layouts, diagrams, menus, and a distinct onboarding
`flow for professional users.
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`Compl. ¶ 32. According to Thumbtack, together “the unique font/typography, colors, icons, page
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`layouts, diagrams, menus, and a distinct onboarding flow for professional users make up design
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`elements of Thumbtack’s Website consist of protectable trade dress (‘Thumbtack Trade Dress’).”
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`Id. ¶ 33. Examples, “including but not limited to,” are then provided in paragraphs 34, 48 & 58, as
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`well as Exhibits 1 & 4. The problem with the examples provided, in addition to not being
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`expressly limited (the main defect in Sleep Sci. Partners, supra) is that Thumbtack does not
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`explain what aspects of the examples provided are part of the Trade Dress and how they project an
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`Northern District of California
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`United States District Court
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`Case 3:23-cv-02830-WHO Document 27 Filed 01