Baldino's Lock & Key Service v. Google, Inc.

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 1:14-cv-00636-CMH-TCB Copies to all parties and the district court/agency. [999712212].. [15-1202]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 15-1202

BALDINO’S LOCK & KEY SERVICE, INC.,
Plaintiff – Appellant,
v.
GOOGLE
INC.;
ZIPLOCAL,
INFORMATION, INC.,

LP;

JOHN

DOES

1-25;

GOOGLE

Defendants – Appellees,
and
SUPERMEDIA SALES,
Hibu, Inc.,

INC.;

YELLOWBOOK

INC.,

a

division

of

Defendants.

Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria.
Claude M. Hilton, Senior
District Judge. (1:14-cv-00636-CMH-TCB)

Submitted:

November 30, 2015

Decided:

December 4, 2015

Before NIEMEYER, MOTZ, and DIAZ, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Donald C. Holmes, DONALD C. HOLMES & ASSOCIATES, P.A.,
Greensboro, Maryland; Andrew C. Bisulca, LAW OFFICE OF ANDREW C.
BISULCA, P.C., Woodbridge, Virginia, for Appellant. Dennis J.
Quinn, Kristine M. Ellison, CARR MALONEY P.C., Washington, D.C.;

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Daryl L. Joseffer, Taylor T. Lankford, Carolyn M. Sweeney, KING
& SPALDING LLP, Washington, D.C.; Kathleen E. McCarthy, KING &
SPALDING, New York, New York, for Appellees.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Baldino’s Lock & Key Service, Inc. (Baldino’s) appeals the
district

court’s

order

granting

the

Defendants’

motions

to

dismiss for failure to state a claim upon which relief can be
granted.

We affirm.

Baldino’s is a Virginia corporation and licensed locksmith
that provides locksmith services in Virginia, Maryland and the
District

of

Baldino’s

Columbia.

asserted

YellowBook,

Inc.,

In

that

and

its
the

Ziplocal,

Second

Amended

Defendants,
LP,

Complaint,

Google,

knowingly

Inc.,

published

the

names, addresses and phone numbers of unlicensed locksmiths on
their websites in order to gain advertising revenue.
alleged

violations

of

the

Racketeer

Influenced

Baldino’s

and

Corrupt

Organizations Act (RICO), 18 U.S.C. §§ 1961-68 (2012), and the
Lanham Act, 15 U.S.C. § 1125(a)(1)(B) (2012).
The

district

dismiss.

court

granted

the

Defendants’

motions

to

Of relevance to this appeal, * the court determined that

Baldino’s had not shown that the Defendants had made a false or
misleading

description

or

representation

of

fact

and,

accordingly, had failed to state a claim under the Lanham Act.

*

On appeal, Baldino’s has expressly abandoned
claims against YellowBook and its RICO claims.

3

both

its

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We review de novo a district court’s dismissal of an action
for failure to state a claim.

Trejo v. Ryman Hosp. Props.,

Inc., 795 F.3d 442, 445-46 (4th Cir. 2015).

To survive a Rule

12(b)(6) dismissal, “a complaint must contain sufficient factual
matter, accepted as true, to state a claim to relief that is
plausible on its face.”

Ashcroft v. Iqbal, 556 U.S. 662, 678

(2009) (internal quotation marks omitted).

We must accept as

true the complaint’s factual allegations and draw all reasonable
inferences

in

favor

of

the

nonmoving

party.

Kensington

Volunteer Fire Dep’t v. Montgomery Cty., 684 F.3d 462, 467 (4th
Cir. 2012).
The
corporate

“Lanham
victims

representations.”
2015).

Act

creates

a

of

‘false

or

private

right

misleading’

of

action

descriptions

for
or

In re GNC Corp., 789 F.3d 505, 514 (4th Cir.

To prevail on a Lanham Act claim, a plaintiff must

establish that:
(1)
the
defendant
made
a
false
or
misleading
description of fact or representation of fact in a
commercial advertisement about his own or another’s
product; (2) the misrepresentation is material, in
that it is likely to influence the purchasing
decision; (3) the misrepresentation actually deceives
or has the tendency to deceive a substantial segment
of its audience; (4) the defendant placed the false or
misleading statement in interstate commerce; and
(5) the plaintiff has been or is likely to be injured
as a result of the misrepresentation, either by direct
diversion of sales or by a lessening of goodwill
associated with its products.

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Design Resources, Inc. v. Leather Indus. of Am., 789 F.3d 495,
501 (4th Cir. 2015).
Here,
Baldino’s

the

district

failed

to

representations.
information

that

court

show

Rather,
appeared

correctly

that
the

on

the

Defendants

locksmiths

Defendants’

determined

who

that

made

generated

websites

are

any
the

solely

responsible for making any faulty or misleading representations
or descriptions of fact.
not

err

in

dismissing

Accordingly, the district court did

Baldino’s

Lanham

Act

claim

under

Rule

12(b)(6).
We

therefore

affirm.

We

dispense

with

oral

argument

because the facts and legal contentions are adequately presented
in the materials before the court and argument would not aid the
decisional process.
AFFIRMED

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