Louisiana Pacific Corporation v. James Hardie Building Products, Inc.

Filing 53

Order by Hon. Samuel Conti denying 47 Administrative Motion to File Under Seal.(sclc1, COURT STAFF) (Filed on 7/8/2013)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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LOUISIANA PACIFIC CORPORATION,

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Plaintiff,

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v.

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United States District Court

For the Northern District of California

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JAMES HARDIE BUILDING PRODUCTS,
INC., and DOES 1-5, inclusive

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Defendants.

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) Case No. C-12-3433 SC
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) ORDER DENYING MOTION TO
) SEAL
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I.

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INTRODUCTION
Plaintiff Louisiana Pacific Corporation ("Plaintiff") brings

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this action against Defendant James Hardie Building Products

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("Defendant") for, among other things, trademark infringement and

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tortious interference with economic advantage.

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action is that Defendant injured Plaintiff and infringed its

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registered trademarks by paying Google to direct consumers to

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Defendant's website when consumers performed an internet search

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using Plaintiff's marks.

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for summary judgment and various documents filed in support

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thereof.

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below, the Motion is DENIED.

The gravamen of the

Defendant now seeks to seal its motion

ECF No. 47 ("Mot. to Seal").1

For the reasons set forth

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In connection with its Motion to Seal, Defendant lodged with the
Court unredacted copies of its summary judgment motion and
supporting documents. Plaintiff has since opposed the summary

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II.

BACKGROUND
This case arises out of Defendant's use of "Google AdWords,"

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an advertising platform tied to the Google search engine.

Google

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AdWords allows advertisers to display advertisements in response to

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consumer searches on Google.

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that wants it advertisements to appear in response to consumer

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searches can submit to Google advertisements along with one or more

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"keywords" that it wants to trigger those advertisements.

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feature of Google AdWords is the "Dynamic Keyword Insertion"

Using Google AdWords, an advertiser

One

United States District Court

For the Northern District of California

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function ("DKI"), which allows advertisers to submit an

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advertisement with a blank space in it to be automatically filled

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when a consumer's search triggers the advertisement.

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Plaintiff and Defendant are competitors in the manufacture and

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sale of building products.

Plaintiff alleges that Defendant misled

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consumers and misappropriated Plaintiff's trademarks by using those

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marks as keyword triggers and by using them within the text or

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title of paid advertisements that linked to Defendant's website.

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ECF No. 1 ("Compl.") ¶ 7.

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Google search for one of Plaintiff's trademarks would trigger an

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advertisement sponsored by Defendant.

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feature Plaintiff's marks and link to Defendant's website.

In other words, Plaintiff alleges that a

That advertisement would

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In the unredacted summary judgment motion lodged with the

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Court ("MSJ"), Defendant contends that the use of Plaintiff's marks

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was inadvertent.

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including in its advertisements the name of any of its competitors,

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and that one of the advertisements targeted by Plaintiff was the

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judgment motion. Plaintiff's opposition is improper as Defendant's
motion for summary judgment has not yet been formally filed to the
docket. Plaintiff may re-file its opposition after Defendant has
formally filed its motion for summary judgment.

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Defendant asserts that it has a practice of not

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product of some mistake in the DKI function.

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the Plaintiff-related keywords that triggered the DKI advertisement

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were mistakenly inserted into the advertisement and displayed to

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the consumer.

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advertisements do not make sense from a marketing perspective.

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example, one of Defendant's advertisements represents that

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Plaintiff's product is "America's #1 Brand of Siding."

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Defendant posits that

Defendant points out that the resulting
For

Defendant now moves to seal its motion for summary judgment.
Defendant essentially asks the Court to redact from the motion:

United States District Court

For the Northern District of California

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statements that Defendant has a practice of not including the names

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of its competitors in its advertisements, MSJ at 4; statements that

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the use of Plaintiff's marks in its advertisements was mistaken,

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id. at 5, 18-20, 23; and statements concerning the number of times

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the objectionable DKI ad was displayed, how many times customers

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clicked on the ad, and how many of those customers took positive

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action, id. at 6, 15, 22.

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various supporting documents that contain this information, as well

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as information about the cost-per-click for each advertisement.

Defendant also seeks to seal or redact

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III. LEGAL STANDARD
Federal courts have long recognized a common law right of

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access to inspect various judicial documents.

See Nixon v. Warner

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Commc'ns, Inc., 435 U.S. 589, 597 (1978).

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creates a strong presumption in favor of access to judicial

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documents which can be overcome only by showing sufficiently

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important countervailing interests."

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Byrd v. Gen. Motors Corp., 307 F.3d 1206, 1212 (9th Cir. 2002)

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(quotations omitted).

"This common law right

Phillips ex rel. Estates of

In consideration of this strong presumption,

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Civil Local Rule 79-5 provides: "A sealing order may issue only

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upon a request that establishes that the document, or portions

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thereof, is privileged or protectable as a trade secret or

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otherwise protectable under the law."

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document must "articulate[] compelling reasons supported by

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specific factual findings, that outweigh the general history of

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access and the public policies favoring disclosure . . . ."

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Kamakana v. City & County of Honolulu, 447 F.3d 1172, 1178-79 (9th

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Cir. 2006) (internal citations and quotations omitted).

A party seeking to seal a

United States District Court

For the Northern District of California

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IV.

DISCUSSION

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Defendant argues that its summary judgment motion and

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supporting documents should be sealed because they purportedly

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contain "non-public highly commercially sensitive and proprietary

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information, and/or trade secret information, the disclosure of

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which will cause [Defendant] substantial competitive harm."

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at at 1.

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not, for example, filed a declaration from one its officers or

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employees describing how this information is generally kept.

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Merely declaring that something is a trade secret does not make it

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so.

However, Defendant never explains why.

Mot.

Defendant has

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Defendant essentially asks the Court to assume that an

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inadvertent advertising campaign and the results of that campaign

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are trade secrets.

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generally defined as information that (1) derives independent

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economic value from not being generally known to the public, and

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(2) is the subject of efforts to maintain its secrecy.

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U.S.C. § 1839(3); Cal. Civ. Code § 3426.1(d).

The Court declines to do so.

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A trade secret is

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It is unclear what

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value Defendant derives from keeping secret the details of a

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marketing campaign which inadvertently features the name of a

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competitor's product.

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summary judgment, the results of such a campaign are "comical from

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a marketing perspective," MSJ at 5, then it is highly unlikely that

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anyone else will intentionally attempt to imitate the campaign.

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is also unclear what steps Defendant has taken to keep the details

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of the marketing campaign secret.

If, as Defendant admits in its motion for

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Compelling reasons must be shown to seal documents filed in

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United States District Court

For the Northern District of California

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connection with a motion for summary judgment, since the resolution

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of such motions are "at the heart of the interest in ensuring the

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public's understanding of the judicial process and of significant

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public events."

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The Court finds that Defendant has failed to set forth such

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compelling reasons here.

Kamakana, 447 F.3d at 1179 (quotations omitted).

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V.

CONCLUSION
For the reasons set forth above, Defendant James Hardie

Building Products, Inc.'s motion to seal is DENIED.

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IT IS SO ORDERED.

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Dated: July 8, 2013
UNITED STATES DISTRICT JUDGE

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