Cellular Accessories For Less Inc v. Trinitas LLC et al

Filing 110

ORDER that Defendants Motion for Summary Judgment is DENIED IN PART AND GRANTED IN PART 90 . The Court grants summary judgment to Defendants as to any claim for damages arising out of the alleged copyright infringement. However, summary judgment is denied as to a claim for injunctive relief. Additionally, Plaintiff has filed an ex parte application to be allowed to file a surreply in order to address a question about when Defendants had notice of Mr. Morrisons role in creating website content 96 . However, because that issue doesnot touch on the remedies question, and because Plaintiff survives the Motion as to the substantive issues, the application is DENIED as moot by Judge Dean D. Pregerson . (lc). Modified on 11/5/2014 (lc).

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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CELLULAR ACCESSORIES FOR
LESS, INC., a California
corporation,

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Plaintiff,

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v.
TRINITAS LLC, a Texas
limited liability company;
DAVID OAKS, an individual,
Defendants.
___________________________

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Case No. CV 12-06736 DDP (SHx)
ORDER DENYING IN PART AND
GRANTING IN PART DEFENDANTS’
MOTION FOR SUMMARY JUDGMENT

[Dkt. No. 90, 96]

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Presently before the court is Defendants Trinitas LLC and

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David Oakes’s Motion for Summary Judgment.

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submissions of the parties, the court denies the motion in part and

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grants it in part and adopts the following order.

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I.

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Having considered the

Background
Plaintiff Cellular Accessories for Less, Inc. (“CAFL”) and

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Defendant Trinitas LLC (“Trinitas”) both sell mobile phone

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accessories on the internet.

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former employee and the founder of Trinitas.

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Dkt. No. 1.)

Defendant David Oakes is Plaintiff’s
(Complaint ¶¶ 12&16,

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Plaintiff owns and operates a website that contains extensive

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descriptions for approximately 10,000 products.

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R. Morrison ¶ 2.)

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beyond the product specifications provided by manufacturers. (Dec.

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of R. Morrison ¶ 3.)

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descriptions give it a competitive advantage because they provide

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accurate, detailed content and therefore allow its customers to

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make informed purchasing decisions.

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(Id. ¶ 9;Dec. of

Plaintiff provides product descriptions that go

Plaintiff alleges these extended product

(Id.)

To produce these product descriptions, Plaintiff employs

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individuals to add extra text to the basic product specifications

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and facts provided by the manufacturers.

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7.)

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Morrison authored the text under the “Bluetooth Headset Benefits”

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heading found on the product description page for the M155 Marque

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Voice Controlled Bluetooth Wireless Headset (“M155").

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Morrison ¶ 10.)

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heading was duplicated on Defendants’ website.

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same text was also found on another cellular accessory company’s

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website.

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(Dec. of R. Morrison ¶

Specifically, Plaintiff alleges that website manager Ryan

(Dec. of R.

The same text under the Bluetooth Headset Benefits
(Id. ¶ 20.)

The

(Dec. of M. Cogburn Ex. A at p.114:5-25, 115:1-12.)

Plaintiff identifies 971 product descriptions it alleges

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Defendants copied.

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these product descriptions, Plaintiff asserts that Defendants also

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duplicated the Frequently Asked Questions (“FAQ”) section.

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of R. Morrison ¶ 21.)

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(Complaint Ex. B, Dkt. No. 1.)

In addition to

(Dec.

On May 18, 2012 and July 17, 2012, Plaintiff’s counsel sent

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Digital Millennium Copyright Act (“DMCA”) notification

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correspondences to the web host for Defendants’ website listing 49

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product descriptions that Plaintiff identified as its copyrighted
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works.

(Dec. of M. Cogburn Ex. A, Exs. 4-5 of Langstein

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Deposition.)

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Defendants’ website immediately take down the web content that

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infringed upon Plaintiff’s copyright.

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President, Mitchell Langstein, reviewed and authorized these DMCA

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notices.

These notices demanded that the web host for

(Id.)

Plaintiff’s

(Dec. of M. Cogburn Ex. A at p. 104:20-22, 106:11-23.)

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After Defendants received these DMCA notices, they began to

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change the product descriptions mentioned in the notices to keep

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its website alive.

(Dec. of M. Cogburn ¶ 4.)

At that time,

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Defendants also removed and changed the FAQ and Corporate Account

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section.

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Registration No. TX 7549240, which covers the CAFL website and its

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content, including the product descriptions.

(Dec. of M. Cogburn ¶

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3, Ex. B; Dec. of R. McWilliams ¶ 2, Ex. A.)

That same day,

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Plaintiff filed this action seeking injunctive relief against

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Defendants for copyright infringement.

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1.)

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issue here.

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(Id.)

On August 6, 2012, Plaintiff was issued Copyright

(Complaint ¶ 1, Dkt. No.

Plaintiff also raised other causes of action that are not at
(Id.)

In this motion for summary judgment, Defendants seek summary

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judgment on the copyright infringement claim, arguing that

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Plaintiff does not own a valid copyright and that Plaintiff does

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not possess any protectable interest in what has allegedly been

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infringed.

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II.

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Legal Standard
Summary judgment is appropriate where the pleadings,

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depositions, answers to interrogatories, and admissions on file,

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together with the affidavits, if any, show “that there is no

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genuine dispute as to any material fact and the movant is entitled
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to judgment as a matter of law.”

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seeking summary judgment bears the initial burden of informing the

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court of the basis for its motion and of identifying those portions

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of the pleadings and discovery responses that demonstrate the

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absence of a genuine issue of material fact.

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Catrett, 477 U.S. 317, 323 (1986).

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burden, the burden shifts to the nonmoving party opposing the

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motion, who must “set forth specific facts showing that there is a

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genuine issue for trial.”

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Fed. R. Civ. P. 56(a).

A party

See Celotex Corp. v.

If the moving party meets its

Anderson, 477 U.S. at 256.

“Although summary judgment is not highly favored on questions

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of substantial similarity in copyright cases, summary judgment is

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appropriate if the court can conclude, after viewing the evidence

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and drawing inferences in a manner most favorable to the non-moving

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party, that no reasonable juror could find substantial similarity

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of ideas and expression.”

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(9th Cir. 1989).

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of substantial similarity, however, summary judgment is improper.”

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Shaw v. Lindheim, 919 F.2d 1353, 1355 (9th Cir. 1990).

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III. Discussion

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Narell v. Freeman, 872 F.2d 907, 909-10

“Where reasonable minds could differ on the issue

“To establish [copyright] infringement, two elements must be

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proven: (1) ownership of a valid copyright, and (2) copying of

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constituent elements of the work that are original.”

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Publications, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 361

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(1991).

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A.

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Feist

Ownership of a valid copyright
“[A] certificate of copyright registration constitutes prima

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facie evidence of copyrightability and shifts the burden to the

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defendant to demonstrate why the copyright is not valid.”
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Bibbero

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Sys., Inc. v. Colwell Sys., Inc., 893 F.2d 1104, 1106 (9th Cir.

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1990).

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showing that the plaintiff's work is not original.

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v. Jason Maxwell, Inc., 972 F.2d 1031, 1033 (9th Cir. 1992).

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original, “[a]ll that is needed to satisfy both the Constitution

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and the statute is that the ‘author’ contributed something more

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than a ‘merely trivial variation, recognizably ‘his own.’”

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Marty Krofft Television v. McDonald's Corp., 562 F.2d 1157, 1163

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n.5 (9th Cir. 1977), superseded on other grounds by 17 U.S.C. §

Defendant may rebut the presumption of copyrightability by
N. Coast Indus.
To be

Sid &

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504(b)(quoting Alfred Bell & Co. v. Catalda Fine Arts, 191 F.2d 99,

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102-03 (2d Cir. 1951).

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extremely low; even a slight amount will suffice.”

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at 345.

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“[T]he requisite level of creativity is
Feist, 499 U.S.

Plaintiff holds a certificate of copyright registration for

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the contents of the CAFL website, including the product

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descriptions and the FAQ section.

(Dec. of M. Cogburn ¶ 3, Ex. B;

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Dec. of R. McWilliams ¶ 2, Ex. A.)

Thus, Plaintiff has provided

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prima facie evidence of owning a valid copyright.

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Defendants dispute the validity of Plaintiff’s copyright.

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Specifically, Defendants argue that Plaintiff did not author the

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product descriptions on the CAFL website, but that these

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descriptions came from the manufacturer.

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Plaintiff edited, rearranged or modified the product descriptions,

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Defendants argue that the edits are not sufficiently original to

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warrant copyright protection.

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However,

To the degree that

(Mot. Summ. J. at 7:14-18.)

Such general allegations are not sufficient to shift the

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burden to Plaintiff to prove that its work is original.

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argues that “Plaintiff must present and outline the exact elements
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Defendant

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of similarity after deleting all ‘unprotectable elements . . . .’”

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(Reply at 2:16-17.)

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As the Ninth Circuit has explained,

This is an incorrect statement of the burden.

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[A] defendant may challenge the originality of a plaintiff's

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[work] by showing that it is in fact a copy of a preexisting

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one . . . . [I]n order to establish that the plaintiff copied

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a preexisting work, a defendant must show . . . that

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plaintiff's work is substantially similar to the prior work in

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both ideas and expression.

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N. Coast Indus. v. Jason Maxwell, Inc., 972 F.2d 1031, 1033-34 (9th

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Cir. 1992) (emphasis added).

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Defendants, both as the summary judgment movants and as the parties

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relying on the non-originality defense, to show that Plaintiff’s

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work is non-original by comparing it to preexisting works–e.g., the

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manufacturer’s descriptions.

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that Plaintiff had copied large portions of the allegedly

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copyrighted material, and that what remained afterward was trivial,

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it could succeed on its summary judgment.

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Learning Corp. v. Oriental Trading Co., C 03-4947 JF, 2004 WL

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2944048 (N.D. Cal. Dec. 20, 2004) (“The Court concludes that when

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the unprotectable elements are filtered out, and only the

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protectable elements are considered, no reasonable trier of fact

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could find that the catalogs are substantially similar.”).

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Thus the burden is clearly on

If Defendants could show conclusively

See, e.g., Excelligence

Plaintiff identifies, in a side-by-side comparison, 971

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product descriptions it alleges Defendants copied.

(Complaint Ex.

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B, Dkt. No. 1.)

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by Defendants as “onerous and burdensome,” (Reply at 2:15), of

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separating out the protectable elements from the allegedly non-

However neither party has done the work, described

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protectable ones in all 971 product descriptions.

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above, the burden to do so falls to the Defendants.

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As discussed

Defendants have presented some evidence to show that the

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product description of the M155 Bluetooth Headset contains some

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non-original elements.

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admitted that the product description starting with the words

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“sleek and lightweight” and ending with “the smart way to connect

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with your smartphone” as well as the product description under

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“Product Features” starting with “[t]he easiest way to answer

In a deposition, Mitchell Langstein

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handsfree,” and down to “excellent sound quality and amazing

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lightweight design” appeared to be an exact copy of those found on

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the manufacturer’s website.

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25, 113:1-5.)

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sections are not original.

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(Dec. of M. Cogburn Ex. A at p.112:13-

Plaintiff does not appear to dispute that these

Apart from that portion of the M155 product description,

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however, Defendants have not demonstrated that the product

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descriptions–all of which are the subject of registered copyright,

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and so presumptively protectable–are non-original and therefore

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non-protectable.

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portions of the pleadings . . . which it believes demonstrate the

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absence of a genuine issue of material fact.”

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323.

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Thus, Defendants have not “identified those

Celotex, 477 U.S. at

Plaintiff also argues that the formatting and arrangement of

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facts under the headings “Specifications,” “Included Parts,”

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“Accessories/Replacement Parts” and “Product Documentation” are

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entitled to copyright protection.

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“[t]his arrangement of facts within these sections was not done

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alphabetically or based on any other party” and that “the

Ryan Morrison states that

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arrangement and selection of facts to include in these sections was

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based on the standard format that I personally developed for

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Cellular.”

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to dispute Plaintiff’s claim that one of its employees

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independently chose to select and format the facts under those

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headings.

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and arranged the facts under the heading, Defendants have not shown

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Plaintiff did not exercise the minimal degree of creativity that is

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required for copyright protection.

(Dec. of R. Morrison ¶ 17.)

Defendants do not appear

Thus, to the extent that Plaintiff’s employee selected

See Feist Publications, Inc. v.

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Rural Tel. Serv. Co., 499 U.S. 340, 348 (1991) (“Factual

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compilations . . . may possess the requisite originality.

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compilation author typically chooses which facts to include, in

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what order to place them, and how to arrange the collected data. .

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. .

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The

These choices . . . are sufficiently original.”)
Finally, Plaintiff argues that the FAQ section of its website

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is entitled to copyright protection.

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about Plaintiff’s products and brief answers.

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dispute Plaintiff’s claim that the FAQ section is original and

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protectable.

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The FAQ consists of questions
Defendants do not

In short, there are genuine issues of fact as to the

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originality of the product description texts, the arrangement of

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the facts under certain headings on the product description pages,

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and the FAQ section.

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judgment based on a non-originality argument.

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B.

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Thus, Defendants are not entitled to summary

Copying of the constituent elements of the work that are
original.

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In addition showing that it holds a valid copyright in at

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least some portions of the work, Plaintiff must also show that

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Defendants copied from the protectable elements.1

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The Ninth Circuit applies a two part test, an extrinsic test

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and an intrinsic test, to determine whether there is copying

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sufficient to constitute infringement.

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Microsoft Corp., 35 F.3d 1435, 1442 (9th Cir. 1994).

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judgment, courts apply only the extrinsic test, [which examines

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similarities between the two works based on external criteria]; the

Apple Computer, Inc. v.
“At summary

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intrinsic test, which examines an ordinary person’s subjective

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impressions of the similarities between two works, is exclusively

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the province of the jury.”

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Co., L.P., 462 F.3d 1072, 1077 (9th Cir. 2006).

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avoids summary judgment by satisfying the extrinsic test which

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makes similarity of the works a triable issue of fact.”

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Walt Disney Pictures & Television, 16 F.3d 1042, 1045 (9th Cir.

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1994).

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indicia of a sufficient disagreement concerning the substantial

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similarity of two works to require submission to a jury.”

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Bag Software v. Symantec Corp., 960 F.2d 1465, 1472 (9th Cir.

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1992)(internal quotation marks and citation omitted).

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Funky Films, Inc. v. Time Warner Entm't
“A plaintiff

Kouf v.

A triable issue of fact “exists when the plaintiff provides

Brown

However, a substantial similarity analysis is not required

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when defendants “admit that they in fact copied,” Norse v. Henry

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Holt & Co., 991 F.2d 563, 566 (9th Cir. 1993), or when a “defendant

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Plaintiff does not need to show that defendant copied
Plaintiff’s work in its entirety. L.A. Printex Indus., Inc. v.
Aeropostale, Inc., 676 F.3d 841, 852 (9th Cir. 2012). It is enough
that the defendant appropriated a substantial portion of the
plaintiff's work. Id.
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has engaged in virtual duplication of a plaintiff’s entire work,”

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Narell v. Freeman, 872 F.2d 907, 910 (9th Cir. 1989).

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Range Rd. Music, Inc. v. E. Coast Foods, Inc., 668 F.3d 1148, 1154

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(9th Cir. 2012) (holding that substantial similarity is not an

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element of a copyright infringement claim).

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See also

Defendants do not dispute Plaintiff’s claim that their website

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is substantially similar to Plaintiff’s website.

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Defendants again argue that Plaintiff’s website consists of

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unprotectable elements.

Instead,

However, originality goes to the first

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prong of the Feist test,2 already discussed.

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to evidence of copying of whatever original material there is.

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issue is whether “the protectible elements, standing alone, are

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substantially similar.”

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815, 822 (9th Cir. 2002)(internal quotation marks and citation

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omitted)(emphasis in original).

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The second prong goes
The

Cavalier v. Random House, Inc., 297 F.3d

Defendants also do not appear to dispute the deposition

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testimony of Defendants’ website designer, Aelorae Qahlwyn.

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Qahlwyn admitted that Defendant Oakes instructed her to copy and

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paste product descriptions and images from Plaintiff’s website.

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(Dec. of R. McWilliams, Ex. B at 36:5-25, 37:1-2.)

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noted above, Defendants have not shown that the product

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descriptions do not contain nontrivial amounts of original

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material, this amounts to an admission of direct copying of

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presumptively protectable copyrighted material.

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has provided direct evidence of copying, the Court does not need to

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engage in a substantial similarity analysis.

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See initial text of Part III., supra.
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Because, as

Because Plaintiff

Rd. Music, Inc. v. E.

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Coast Foods, Inc., 668 F.3d 1148, 1154 (9th Cir. 2012).3

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a genuine issue of fact as to infringement of the product

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descriptions and their arrangements and Defendants are not entitled

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to summary judgment.

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There is

Finally, Defendants’ FAQ section appears to be substantially

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similar to Plaintiff’s FAQ section.

Plaintiff argues that

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Defendants copied Cellular’s 2012 FAQ section either verbatim or

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nearly verbatim.

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Qahlwyn’s testimony and Langstein’s declaration.

To support this claim, Plaintiff relies on
First, Qahlwyn

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testified that she created the FAQ page and inputted information

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that was provided by Defendant Oakes or Katie Oakes.

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McWilliams, Ex. B at p. 44:18-25, 45: 1-25.)

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information suggests that Defendant Oakes may have taken the

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information from Plaintiff’s website because he was previously

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employed by Plaintiff, it is unclear where the information was

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taken from exactly.

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that “the copy and paste job was so extensive that many of the

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images and hyperlinks in the FAQ contained links, whether active or

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broken, to the Cellular website.”

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is at least circumstantial evidence of copying.

(Dec. of R.

Although this

Second, in Langstein’s declaration, he stated

(Dec. of Langstein ¶ 5.)

This

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The Court notes, however, that text under the “Bluetooth
Headset Benefits” heading found on Plaintiff’s M155 product
description page is found verbatim on Defendants’ website. (Dec.
of R. Morrison, ¶ 18 & Exs. B & D.) Defendants’ website also has
the same arrangement of facts under certain headings on the M155
product page as those found on Plaintiff’s website. (Dec. of R.
Morrison, Exs. B & D.) Specifically, the facts under the “Product
Features” heading and “Included Parts” heading are identical on
both websites. Thus, there is at least some evidence of
substantial similarity of original content, at least with regard to
the M155 product page and description.
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However, even if there were no evidence of copying, the FAQ

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section on the two websites appear to be substantially similar to

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one another.

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headings found on Plaintiff’s FAQ section and contains a similar

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number of questions under each heading.

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E & F.)

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and questions are similarly ordered.

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questions are similarly framed.

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“Cases” heading, Plaintiff frames a question as “I received a pouch

Defendants’ FAQ section contains seven of the nine

(Dec. of R. Morrison Exs.

A side by side comparison illustrates that these headings
(Id.)

(Id.)

Moreover, the

For example, under the

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case that is made by a different manufacturer than my phone.

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example, a Blackberry case for my iPhone.

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whereas Defendants frame the question as “I received a pouch case

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by a different manufacturer than my phone.

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error?”

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frames a question as “How long do batteries last before they need

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to be replaced?

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whereas Defendants frame the question as “How long before I will

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need a replacement battery?

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lifespan?”

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the wording and number of questions are not different from each

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other, there is a issue of fact as to the substantial similarity

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between the two parties’ FAQ section.

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Gilley's European Tan Spa, 303 F. Supp. 2d 974, 978 (W.D. Wis.

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2002)(“A side-by-side comparison of the parties’ undoctored

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Frequently Asked Questions pages clearly reveals that the sequence,

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the wording and the number of the questions are different from each

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other.”)

(Id.)

For

Is this a mistake?”

Is this a shipping

Also, under the “Batteries” heading, Plaintiff

Can I do anything to prolong their lifespan?”

(Id.)

Anything I can do to prolong the

Because a side by side comparison reveals that

Cf. Mist-On Sys., Inc. v.

Thus, Defendants are not entitled to summary judgment

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because a reasonable jury could find Defendants’ FAQ section to be

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substantially similar to that of Plaintiff’s.

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C.

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Unclean Hands Defense
“The defense of unclean hands by virtue of copyright misuse

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prevents the copyright owner from asserting infringement and asking

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for damages when the infringement occurred by his dereliction of

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duty.”

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Realtors, 786 F.2d 1400, 1408 (9th Cir. 1986).

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will be dismissed under the theory of unclean hands if defendant

Supermarket of Homes, Inc. v. San Fernando Valley Bd. of
“Plaintiff’s action

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establishes that plaintiff’s evidence was false and that plaintiff

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was involved in a scheme to defraud the public.”

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hands defense also “forbids the use of the [copyright] to secure an

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exclusive right or limited monopoly not granted by the [Copyright]

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Office and which is contrary to public policy to grant.”

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Corp. v. Clear Logic, Inc., 424 F.3d 1079, 1090 (9th Cir.

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2005)(internal quotation marks and citation omitted); see also A &

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M Records v. Napster, Inc., 239 F.3d 1004, 1026–27 (9th Cir.2001)

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(stating that copyright misuse “prevents copyright holders from

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leveraging their limited monopoly to allow them control of areas

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outside the monopoly.”).

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Id.

The unclean

Altera

Defendants argue that they are entitled to summary judgement

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on their affirmative defense of unclean hands because Plaintiff has

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tried to gain a monopoly over marketing materials that it does not

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own, but are actually created by the manufacturers.

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Plaintiff disputes this and argues that it has never sought to

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prevent use of the marketing materials provided by the

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manufacturer.

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protect its copyrighted works.

However,

Instead, Plaintiff argues that it is only trying to
(Dec. of Langstein ¶ 10.)
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Plaintiff relies on Langstein’s declaration.

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Langstein states that “Cellular does not seek to control areas

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outside of its copyright. . . .”

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Plaintiff has provided evidence that Plaintiff is not trying to

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control areas outside of the monopoly, and because in any event the

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exact scope of the copyright, if any, is the key issue in the case,

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there is an issue of fact as to copyright misuse.

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are not entitled to summary judgment.

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D.

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In his declaration,

(Dec. of Langstein ¶ 9.)

Because

Thus, Defendants

Remedies
Defendants argue that they are entitled to summary judgment

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because Plaintiff has not established any actual damages suffered

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as a result of the alleged copying.

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Defendants also argue that Plaintiff’s claim for damages should be

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stricken because the copyrighted work was neither registered prior

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to the commencement of the infringement nor within three months

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after first publication of the work, as required under 17 U.S.C. §

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412.

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(Mot. Summ. J. at 12:2-5.)

Plaintiff’s complaint specifically requests both actual and

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statutory damages in its Prayer for Relief.

(Compl., Prayer for

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Relief ¶¶ 4-7.)

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barred by § 412 from claiming statutory damages, and at oral

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argument Plaintiff’s counsel stated that Plaintiff would no longer

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seek damages for this claim.

However, Plaintiff does not dispute that it is

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The Complaint also requests an injunction against any future

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use by Defendants of Plaintiff’s allegedly copyrighted works, and

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an order to take down the allegedly infringing website.

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37-39.)

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injunctive relief only.

(Compl. ¶¶

Plaintiff may proceed with its copyright claim for

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IV.

Conclusion
For the reasons stated above, Defendant’s Motion for Summary

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Judgment is DENIED IN PART AND GRANTED IN PART.

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summary judgment to Defendants as to any claim for damages arising

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out of the alleged copyright infringement.

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judgment is denied as to a claim for injunctive relief.

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The Court grants

However, summary

Additionally, Plaintiff has filed an ex parte application to

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be allowed to file a surreply in order to address a question about

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when Defendants had notice of Mr. Morrison’s role in creating

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website content.

(Dkt. No. 96.)

However, because that issue does

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not touch on the remedies question, and because Plaintiff survives

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the Motion as to the substantive issues, the application is DENIED

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as moot.

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IT IS SO ORDERED.

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Dated: November 5, 2014
DEAN D. PREGERSON
United States District Judge

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