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Ayse Sen v. Amazon.com, Inc.

United States Court of Appeals for the Ninth Circuit

February 4, 20201, Submitted; February 12, 2020, Filed

No. ) 18-56413

Opinion

 [*626]  MEMORANDUM2

Ayse Sen appeals pro se from the district court's summary judgment in her action alleging Lanham Act and state law claims. We have jurisdiction under 28 U.S.C. § 1291. We review de novo. Surfvivor Media, Inc. v. Survivor Prods., 406 F.3d 625, 630 (9th Cir. 2005). We affirm in part, vacate in part, and remand.

The district court properly granted summary judgment on Sen's Lanham Act claims based on the third-party review posted on defendant's website because Sen's claims are barred by the nominative fair use doctrine. See Toyota Motor Sales, U.S.A., Inc. v. Tabari, 610 F.3d 1171, 1175-76 (9th Cir. 2010) (setting forth elements of doctrine and noting doctrine can apply "where a defendant uses the mark to refer to the trademarked good itself").

The district court properly granted summary judgment on Sen's claim for tortious interference with prospective and actual business relations, [**2]  and interference with an economic advantage, based on the third-party review posted on defendant's website. The Communications Decency Act ("CDA")  [*627]  provides immunity from liability if a claim "inherently requires the court to treat the defendant as the 'publisher or speaker' of content provided by another." Barnes v. Yahoo!, Inc., 570 F.3d 1096, 1102 (9th Cir. 2009); 47 U.S.C. § 230(c)(1). Sen failed to raise a genuine dispute of material fact as to whether defendant is not a "publisher or speaker" of content within the meaning of the CDA.

The district court granted summary judgment on Sen's Lanham Act claims and claim of tortious interference with prospective and actual business relations, and interference with an economic advantage, based on defendant's "online pay-per-click" advertising campaign, because it found sua sponte that Sen's claims were barred by claim preclusion. However, the district court erred because it is not clear that claim preclusion applies. See Howard v. City of Coos Bay, 871 F.3d 1032, 1040 (9th Cir. 2017) ("[C]laim preclusion does not apply to claims that accrue after the filing of the operative complaint."); cf. Jarrow Formulas, Inc. v. Nutrition Now, Inc., 304 F.3d 829, 838 (9th Cir. 2002) (a Lanham Act claim accrues at "the time the plaintiff knew or should have known about his § 43(a) cause of action."). We vacate the judgment in part, and remand for [**3]  further proceedings on these claims only.

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793 Fed. Appx. 626 *; 2020 U.S. App. LEXIS 4725 **; 2020 WL 708701

AYSE SEN, Plaintiff-Appellant, v. AMAZON.COM, INC., Defendant-Appellee.

Notice: PLEASE REFER TO FEDERAL RULES OF APPELLATE PROCEDURE RULE 32.1 GOVERNING THE CITATION TO UNPUBLISHED OPINIONS.

Prior History:  [**1] Appeal from the United States District Court for the Southern District of California. D.C. No. 3:16-cv-01486-JAH-JLB. John A. Houston, District Judge, Presiding.

Sen v. Amazon.com, Inc., 2018 U.S. Dist. LEXIS 168282 (S.D. Cal., Sept. 27, 2018)

Disposition: AFFIRMED in part, VACATED in part, and REMANDED.

CORE TERMS

district court, vacate, properly granted summary judgment, tortious interference, economic advantage, claim preclusion, actual business, Sen's Lanham Act, third-party, Documents, publisher, relations, website, accrue, posted