FreecycleSunnyvale v. The Freecycle Network

Filing 110

Memorandum in Opposition to Plaintiff's Motion for Summary Adjudication under Fed.R.Civ.P.56 filed byThe Freecycle Network. (Kobialka, Lisa) (Filed on 9/6/2007) Modified on 9/7/2007 (cp, COURT STAFF).

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PAUL J. ANDRE, Bar No. 196585 ([e-mail]) LISA KOBIALKA, Bar No. 191404 ([e-mail]) ESHA BANDYOPADHYAY, Bar. No. 212249 ([e-mail]) SEAN M. BOYLE, Bar No. 238128 ([e-mail]) PERKINS COIE LLP 101 Jefferson Drive Menlo Park, CA 94025 Telephone: [phone] Facsimile: [phone] Attorneys for Defendant The Freecycle Network, Inc.

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA OAKLAND DIVISION

FREECYCLESUNNYVALE, a California unincorporated association, Plaintiff, v. THE FREECYCLE NETWORK, INC., an Arizona corporation, Defendant. THE FREECYCLE NETWORK, INC. an Arizona corporation, Counterclaimant, v. FREECYLESUNNYVALE, a California unincorporated association, Counterdefendant,

CASE NO. C 06-00324 CW THE FREECYCLE NETWORK, INC.'S MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO PLAINTIFF'S MOTION FOR SUMMARY ADJUDICATION UNDER FED.R.CIV.P. 56

Date: Time: Before: Location:

September 27, 2007 2:00 p.m. Honorable Claudia Wilken Courtroom 2

THE FREECYCLE NETWORK, INC.'S MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO PLAINTIFF'S MOTION FOR SUMMARY ADJUDICATION UNDER FED.R.CIV.P. 56

CASE NO. C 06-00324 CW

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TABLE OF CONTENTS Page INTRODUCTION......................................................................................................... 1 STATEMENT OF FACTS............................................................................................ 3 A. B. C. D. E. F. The Freecycle Network's Mission and Ethos ................................................... 3 The FREECYCLE Mark, THE FREECYCLE NETWORK Mark and The Freecycle Network's Logo ................................................................................ 4 The Freecycle Network's Copyright and Trademark Policy ............................ 5 The Freecycle Network's Strict Requirements for Approval............................ 6 The Freecycle Network's Rules & Etiquette..................................................... 7 Monitoring Mechanisms ................................................................................... 9

LEGAL STANDARD ................................................................................................. 10 A. Motions for Summary Judgment..................................................................... 10

ARGUMENT .............................................................................................................. 10 A. A Genuine Issue of Material Fact Exists as to Whether The Freecycle Network Established Quality Control Standards to Ensure a Consistent User Experience For All Members of The Freecycle Network's Affiliated Groups ............................................................................................................. 10 1. 2. 3. 4. "Free, Legal, and Appropriate for All Ages" ...................................... 12 Other Quality Standards ...................................................................... 12 Yahoo! Groups Terms and Conditions................................................ 13 The Freecycle Ethos ............................................................................ 13

A Genuine Issue of Material Fact Exists as to Whether The Freecycle Network Retains an Implied Contractual Right to Inspect and Supervise Member Groups............................................................................................... 14 A Genuine Issue of Material Fact Exists as to Whether The Freecycle Network Engages in Actual Quality Control That Prevents Deception of the Public......................................................................................................... 16 1. The Freecycle Network's Actual Quality Controls Are More Than Sufficient Given the Minimal Quality Controls Required for Simple Services Like The Freecycle Network's ................................. 16

C.

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2.

The Freecycle Network's Actual Quality Controls Are More Than Sufficient To Prevent Deception of the Public Given the Public's Expectations ........................................................................................ 19 The Freecycle Network Exercised Sufficient Quality Standards and Controls and thus, Precludes a Finding of Naked Licensing........ 19

3.

A Genuine Issue of Material Fact Exists as to Whether The Freecycle Network's Quality Control Efforts Were Belated........................................... 22 A Genuine Issue of Material Fact Exists as to Whether The Freecycle Network Currently Engages In Quality Controls ............................................ 24 Summary Judgment Should Be Denied Because Even if The Freecycle Network Engaged in Naked Licensing, It Has At the Very Least Recaptured Its Rights in the Marks ................................................................. 24

CONCLUSION ........................................................................................................... 25

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TABLE OF AUTHORITIES Page

Adickes v. S.H. Kress & Co., 398 U.S. 144 (1970) ............................................................................................................ 10 Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986) ............................................................................................................ 10 Arner v. Sharper Image Corp., 39 U.S.P.Q.2d 1282 (C.D. Cal. 1995)................................................................................. 11 Arthur Murray, Inc. v. Horst, 110 F. Supp. 678 (D. Mass. 1953) ...................................................................................... 19 Barcamerica Intern. USA Trust v. Tyfield Importers, Inc., 289 F.3d 589 (9th Cir. 2002)....................................................................... 11, 14, 16, 17, 19 Birthright v. Birthright Inc., 29 U.S.P.Q.2d 1081 (D.N.J. 1993)................................................................................ 14, 15 Dawn Donut Co. v. Hart's Food Stores, Inc., 267 F.2d 358 (2d Cir. 1959).......................................................................................... 10, 16 First Interstate Bancorp v. Stenquist, 16 U.S.P.Q.2d 1704 (N.D. Cal. 1990)................................................................................. 16 Halo Management, LLC v. Interland, Inc., 2004 WL 1781013 (N.D. Cal. Aug. 10, 2004).............................................................. 22, 23 Kentucky Fried Chicken Corp. v. Diversified Packaging Corp., 549 F.2d 368 (5th Cir. 1977)............................................................................................... 18 KP Permanent Make-up, Inc. v. Lasting Impression I, Inc., 408 F.3d 596 (9th Cir. 2005)............................................................................................... 10 Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574 (1986) ............................................................................................................ 10 Transgo, Inc. v. Ajac Transmission Parts Corp., 768 F.2d 1001 (9th Cir. 1985)............................................................................................. 11 Warren v. City of Carlsbad, 58 F.3d 439 (9th Cir. 1995)................................................................................................. 10 RULES Fed. R. Civ. P. 34(a)................................................................................................................ 24
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I.

INTRODUCTION

As a preliminary matter, Plaintiff and Counterdefendant FreecycleSunnyvale ("Plaintiff") should be denied summary adjudication at this time simply because discovery in this case has not yet been completed, despite Plaintiff's blatant misrepresentation to the contrary before the Court. As discussed in The Freecycle Network's Motion to Strike, Plaintiff failed to provide The Freecycle Network with an adequate opportunity to take the deposition of Miles Dennis Robertson, Jr., or to conduct expert discovery. Dkt. No. 101. Furthermore, just days ago, on August 31, 2007, it produced an additional 60,000 documents to The Freecycle Network. Declaration of Lisa Kobialka in Support of The Freecycle Network's Opposition to FreecycleSunnyvale's Motion for Summary Adjudication ("Kobialka Decl."), ¶ 112, Ex. 110. Moreover, the expert consulting with The Freecycle Network that was prepared to provide a report on this issue during the Court-approved schedule that was mutually agreed upon by the parties was unavailable on such short notice to provide a declaration in support of the present opposition. Id., ¶ 2. Plaintiff therefore has rashly and inappropriately imposed the burden of summary judgment briefing upon the Court, even while still actively engaged in discovery. Plaintiff's late production also sandbags The Freecycle Network with the impossible task of reviewing all of the documents within a period of days before filing its opposition to Plaintiff's motion for summary adjudication. Such disregard of proper procedure and misrepresentation to the Court cannot be condoned, and The Freecycle Network as such respectfully requests the Court to deny Plaintiff's Motion for Summary Judgment or, in the Alternative, Summary Adjudication, on FreecycleSunnyvale's First Claim for Relief and The Freecycle Network's Counterclaims ("MSJ"). Plaintiff attempts to stylize its MSJ as a simple discrete issue that would resolve the trademark-based claims and counterclaims. However, Plaintiff cannot simply overcome the stringent standard of proof for showing that The Freecycle Network has engaged in naked licensing, thereby forcing an involuntary forfeiture of the Freecycle Network's trademark rights. Indeed, Plaintiff cannot show that The Freecycle Network engaged in naked licensing as genuine

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issues of material fact exist such that The Freecycle Network can demonstrate that it established quality control standards and exercised actual quality control.1 Plaintiff attempts to argue that since there was no central authoritarian leadership to create and enforce quality standards and controls, The Freecycle Network could not have policed and monitored its member groups. However, since its inception, The Freecycle Network has built upon its Mission and Ethos, which not only coordinates the reuse, recycling, and re-gifting services, but also defines the types of participation and interactions that occur within its groups. The Freecycle Network instituted clear rules and standards, including specific trademark policies, by which its member groups must abide, including the most important rule that goods that members post must be "free, legal, and appropriate for all ages." As a small, grassroots organization, Deron Beal, the founder of The Freecycle Network, initially monitored the quality controls and standards. However, as The Freecycle Network quickly expanded, it outgrew these informal quality controls and The Freecycle Network formed new, more formalized mechanisms. The Freecycle Network has maintained a consistent experience among its users by implementing posting standards, pick-up procedures, approval requirements, and setting out an appropriate etiquette by which member groups must comply. The Freecycle Network operates under a structure of authority in which moderators, New Group Approvers, Group Outreach Assistants, Interim Moderators, and the Penguin Patrol monitor and control the FREECYCLE name and service. Moreover, consistent with its grassroots origins, The Freecycle Network continues to operate as a decentralized, democratic leadership that allows regional member

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Plaintiff continues to improperly use the term FREECYCLE in a generic manner throughout its Motion to induce the Court into construing the term as generic and thus, not entitled to protection. The primary significance of the term is to describe The Freecycle Network and not just the type of service The Freecycle Network provides. FREECYCLE is used or understood by consumers and members as indicating the source or the umbrella organization under which the service is the re-using, recycling, and gifting of goods. As such, any such usage by Plaintiff in its Motion to persuade the Court that the term is generic is inappropriate and offensive. This, moreover, as Plaintiff admits, is not at issue in this motion and therefore, is not addressed substantively herein. -21

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groups, through the structure of authority, to adapt The Freecycle Network's rules and procedures to the particular needs of their communities. Plaintiff cannot meet the high burden necessary to obtain the extraordinary relief of forcibly taking away all of The Freecycle Network's trademark rights by showing a naked license on summary judgment. In particular, genuine issues of material fact exist as to whether The Freecycle Network established quality standards, retained the right to inspect or supervise, engaged in or currently engages in quality control, and to the extent it is an issue, has since recaptured its rights in the Marks. As a result, The Freecycle Network respectfully requests that the Court deny Plaintiff's MSJ. II. A. STATEMENT OF FACTS

The Freecycle Network's Mission and Ethos The Freecycle Network is an umbrella nonprofit Arizona corporation with member

groups throughout the world dedicated to encouraging and coordinating the reuse, recycling, and gifting of goods throughout the United States and other countries. Declaration of Deron Beal in Support of The Freecycle Network's Opposition to FreecycleSunnyvale's Motion for Summary Adjudication ("Beal Decl."), ¶ 2; Kobialka Decl, ¶ 3, Exh. 1. The non-profit organization started in Tuscon, Arizona in May, 2003, with a single recycling center. Id. Today, The Freecycle Network is a worldwide organization, with thousands of local recycling groups and more than an estimated two million individual members. Id. The Freecycle Network's "mission is to build a worldwide gifting movement that reduces waste, saves precious resources & eases the burden on our landfills while enabling our members to benefit from the strength of a larger community." Beal Decl., ¶ 2; Kobialka Decl., ¶4, Ex. 2. To support this mission, The Freecycle Network maintains an Internet web site, located at www.freecycle.org, with a directory of local Freecycle affiliated groups throughout the world and provides resources for volunteers to create new Freecycle groups. Beal Decl., ¶ 3. The Freecycle Network does more than simply coordinate reuse, recycling, and gifting efforts by its members. Since its inception, The Freecycle Network has cultivated and maintained a "Freecycle Ethos" among Freecycle groups that defines the types of interactions
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that occur within its group and the types of people that participate in its groups. Kobialka Decl., ¶¶ 6-8, Exhs. 4-6; Beal Decl., ¶ 9. The Freecycle Ethos involves cultivating a positive, "warmfuzzy" environment in which individuals are encouraged to act selflessly by giving to others without personal gain. Id. As Deron Beal, the founder of The Freecycle Network describes it: It's the beauty of the beast called Freecycle. It is intrinsically good and draws on the good aspect of each person ­ the grumpy old guy is tickled to get rid of his junk, the nonprofit gets what they [sic] need, every individual giver experiences the fun of helping someone else out in a big way with absolutely no sweat off their [sic] back. And, we all get to get in a completely guilt-free and warm-fuzzy way. Kobialka Decl., ¶ 9, Exh. 7. Part of the Freecycle Ethos includes decentralized, democratic leadership that allows regional groups to adapt their rules and procedures to the particular needs of their communities. Kobialka Decl., ¶¶ 5, 10-13, Exhs. 3, 8-11; Beal Decl., ¶ 9. This Ethos, however, is specifically for members of The Freecycle Network. See id. Rather than dictatorial leadership from Mr. Beal, The Freecycle Network's decisions are made through the use of surveys and discussions between group moderators. Id. This "Freecycle Ethos" of "warmfuzzy" feelings and democracy is an essential quality of the groups that The Freecycle Network has carefully regulated by putting in place rules and mechanisms for enforcing those rules. Id.; Kobialka Decl., ¶¶ 14-16, Exhs. 12-14. B. The FREECYCLE Mark, THE FREECYCLE NETWORK Mark and The Freecycle Network's Logo The public has come to associate the Freecycle Ethos with The Freecycle Network's name and marks. The Freecycle Network has been using the trademarks FREECYCLE, THE FREECYCLE NETWORK, and the distinctive FREECYCLE logo (collectively "The Freecycle Network's Marks" or "the Marks") exclusively and continuously since at least May 1, 2003 as a service mark to identify its re-using, recycling, and gifting services. Beal Decl., ¶ 4, Exh. 1; Kobialka Decl., ¶ 17, Exh. 15. As a result of its use and promotion of The Freecycle Network's Marks, The Freecycle Network has built up and now owns valuable goodwill that is symbolized by these trademarks. Kobialka Decl., ¶¶ 3, 18-19, Exhs. 1, 16-17. Furthermore, The Freecycle Network's Marks comprise the core of The Freecycle Network's intellectual property. Id. Federal registration of The Freecycle Network's Marks is pending before the United States
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Patent and Trademark Office. Id.; Beal Decl., ¶ 5, Exhs. 2-3. In addition, The Freecycle Network's Marks have received registration in foreign countries. Id. The Freecycle Network gives its local groups permission to use The Freecycle Network's Marks for local promotions. Id., ¶ 6. The Freecycle Network's Marks are used to identify local recycling organizations which participate with The Freecycle Network organization. Id.; Kobialka Decl., ¶ 20, Exh. 18. The Freecycle Network's Marks are further used by The Freecycle Network to promote recycling of usable items within a community. Beal Decl., ¶ 6; Kobialka Decl., Ex. 19. Individual recyclers rely on the Marks to know that they are dealing with a local organization officially affiliated with The Freecycle Network. Beal Decl., ¶ 7; Kobialka Decl., ¶¶ 20, 22-27, 104-06, Exhs. 18, 20-25, 102-04. The member groups frequently modify the Marks by adding a word or phrase, and often identifying a geographic location, that further identifies the member group. For example, a member group is named "FreecycleSanFrancisco" to signify that the member group is located in San Francisco, California. However, these modified marks share the same core, i.e. the word "freecycle," and are therefore substantially the same. Kobialka Decl., ¶ 29, Exh. 27. C. The Freecycle Network's Copyright and Trademark Policy In early 2004, The Freecycle Network created an intellectual property working group tasked with developing guidelines for protecting The Freecycle Network's intellectual property, including The Freecycle Network's Marks. Beal Decl., ¶ 25, Exh. 44. Tim Oey, a co-owner of FreecycleSunnyvale, was an active member of The Freecycle Network from early 2004 until late 2005. Id. He vigorously defended The Freecycle Network's rights to The Freecycle Network's Marks in public email exchanges and various Internet fora while he was a member of The Freecycle Network. Id. For example, in an e-mail dated September 17, 2004, Oey stated, in pertinent part, "Everyone in the Freecycle network needs to protect the "Freecycle" trademark." Id. Additionally, he prepared trademark protection guidelines to further preserve The Freecycle Network's Marks. Id. The Freecycle Network requires each and every one of its members to abide by The Freecycle Network Trademark policy. Id., ¶ 26. Member groups that fail to properly use both the FREECYCLE trademark and logo are initially sent cease and desist letters.
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Id. The Freecycle Network will only request Yahoo! Groups to remove members that continue to violate the Trademark policy. Id. D. The Freecycle Network's Strict Requirements for Approval The Freecycle Network instituted clear guidelines since its inception and required members to abide by them. Beal Decl., ¶ 20. Since October 2003, Mr. Beal and other moderators have recruited individuals to create and join a member group as part of The Freecycle Network. See id., ¶¶ 27, 30. The existing moderators instructed new members to join Yahoo! groups and provided The Freecycle Network's approved etiquette to new member groups, which was listed on The Freecycle Network's web site. Id. As the number of member groups increased throughout the country and the world, The Freecycle Network created a more detailed sign-up procedure and guidelines for how potential members would be allowed to join The Freecycle Network. Id., ¶ 20; Kobialka Decl., ¶¶ 28-29, Exhs. 26-27. In a rapid, but structured process, committees comprised of participating moderators established policies and modified them through extensive discussion to prevent overlapping and duplicate groups. Beal Decl., ¶ 20; Kobialka Decl., ¶¶ 20, 28, Exhs. 18, 26. To maximize its efficiency and to minimize confusion, The Freecycle Network created guidelines regarding the number and organization of member groups. Beal Decl., ¶ 20; Kobialka Decl., ¶¶ 5, 22, 27, Exhs. 3, 20, 25. New groups must also comply with The Freecycle Network's geographic guidelines. Kobialka Decl., ¶¶ 20, 30, 32, Exhs. 18, 28, 30. The Freecycle Network implements "smallest viable size" groups in order to allow as many groups as possible in a community. Id., ¶ 33, Exh. 31. It is also consistent with The Freecycle Network's environmental goals by reducing driving time and the use of fossil fuels. Id., ¶¶ 21, 34, Exhs. 19, 32. The Freecycle Network imposes these standards on approximately 10,000-30,000 members per town or area. Id., ¶ 33, Exh. 31. The guidelines also discourage regional groups or larger county groups as unnecessary overlap might occur when smaller communities form separate groups. Id., ¶¶ 20-21, 107, Exhs. 18-19, 105. When a potential overlap occurs between a new group and an existing group, The Freecycle Network's policy is to defer to the existing group owner to decide if the area should be split into two or three groups. Id., ¶¶ 21, 36, 107, Exhs. 19, 34, 105. The committees also created guidelines for
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use of the mark FREECYCLE, and The Freecycle Network name and logo for existing registered groups. Id., ¶¶ 28, 30-31, Exhs. 26, 28-29. Existing groups unwilling or unable to abide by the guidelines could no longer use these Marks. Id., ¶ 30, Exh. 28. Finally, The Freecycle Network also mandates the "one group per owner" rule and requires the owner to actually live in the area. Id., ¶¶ 37-39, Exhs. 35-37. These rules promote the community concept engendered by The Freecycle Network's goals. Id. Local owners have the ability to know and rely on their local recycling contacts. Id. In addition, a local owner will be able to better plan a local café meet up and coordinate local events. Id. E. The Freecycle Network's Rules & Etiquette To ensure that member groups stay true to The Freecycle Network's mission and Ethos, and that members will have consistent user experiences, The Freecycle Network maintains a long list of rules and policies by which groups and members must abide. Id., ¶¶ 16, 40-48, 64, 108, Exhs. 14, 38-46, 62, 106 These rules govern the procedures for offering, requesting, and accepting goods, the types of goods that can be gifted, and the content of acceptable messages. Id., ¶¶ 40, 42-44, 47-48, 61, Exhs. 38, 40-42, 45-46, 59. Local group moderators must enforce these rules among their members. Id., ¶¶ 16, 45, 50-51, Exhs. 14, 43, 48, 49. For minor infractions, The Freecycle Network institutes a "two strikes and you're out" rule, but for gross misconduct, such as sending spam messages, a much harsher "one strike and you're out" rule is enforced. Id., ¶¶ 29, 42, 44, Exhs. 27, 40, 42. Chief among its rules, The Freecycle Network requires all members and groups to keep the contents of their postings and the goods that they post "free, legal, and appropriate for all ages." Id., ¶¶ 10, 16, 27, 40, 44, 52-56, Exhs. 8, 14, 25, 38, 42, 50-54. Shortly after its inception, The Freecycle Network mandated this phrase after a vote in January 2004 among the moderators. Beal Decl., ¶ 10; see Declaration of Lisanne Abrahams in Support of FreecycleSunnyvale's Motion for Summary Adjudication ("Abraham Decl.") (Dkt. No. 72), ¶¶ 21-22, Exhs. H-I. It was overwhelmingly approved, as the requirement is critical to defining and maintaining the Freecycle Ethos. Beal Decl., ¶ 10. The "free" requirement not only prohibits members from posting items for sale, but also items for trade, advertisements for yard sales, or
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any other offer that comes "with strings attached." Kobialka Decl., ¶¶ 41, 45, 50, 55, Exhs. 39, 43, 48, 53. As Mr. Beal himself described it, the goal of The Freecycle Network is "to gift without any expectation of personal benefit or sales," and the "free" requirement embodies that goal. Id., ¶ 57, Ex. 55. The "legal" requirement prevents Freecycle groups from becoming a source of illegal goods that could threaten its groups with legal liability and alter the "family friendly" nature of The Freecycle Network. Id., ¶¶ 10, 52, 58-59, Exhs. 8, 50, 56-57. The "appropriate for all ages" requirement further reinforces the family friendly nature of The Freecycle Network, ensuring that anyone, regardless of age, can participate in its gifting services without fear of exposure to inappropriate content. Id., ¶¶ 43, 59-60, Exhs. 41, 57-58. The Freecycle Network defined "appropriate for all ages" as excluding, at a minimum "weapons, alcohol, tobacco, drugs of any kind, porn, etc." Id., ¶¶ 53, 59-60, Exhs. 51, 58-59. However, as a global network of groups from vastly different communities with vastly different standards, The Freecycle Network recognized that no single "appropriate for all ages" standard could suffice. Id., ¶ 10, Exh. 8. Instead, The Freecycle Network empowered its local moderators to exercise judgment and apply local community standards. Id., ¶¶ 10-13, 62, Exhs. 8-11, 60. Thus, while groups would generally agree on what items were considered "appropriate for all ages," some items banned in one group would be allowed in others. Id., ¶¶ 10-13, 51, 63, Exhs. 8-11, 49, 61. This decentralized aspect of The Freecycle Network's rules was a feature, though, not a flaw. In addition to the baseline "free, legal, and appropriate for all ages" rule, The Freecycle Network has been enforcing a host of other rules and policies that further define and maintain the consistent look and feel of Freecycle branded groups. Id., ¶¶ 35, 40, 42, 44, 48, 50, 55, 57, 64, Exhs. 33, 38, 40, 42, 46, 48, 53, 55, 62. These rules were compiled and posted on the ModSquad mailing list and made available to moderators. Id., ¶¶ 48, 50, 55, 57, Exhs. 46, 48, 53, 55. Among these rules and policies were the following restrictions on member activities: · Curbside offers: Members were prohibited from posting messages indicating that they would leave an item on their curb for anyone to pick up. This was in part to prevent the waste of gasoline as people drive to pick up an item that might already have been taken, and in part to protect the safety of members. Id., ¶ 40, Exh. 38. -8CASE NO. C 06-00324 CW

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·

Posting procedures: The Freecycle Network defined the format in which members should offer or request goods. The subject line of postings had to either begin with "OFFER" or "WANTED" and include the item and location. All responses had to be directed only to the person who posted initially, not to the entire group. Once a posting was fulfilled, the original poster had to post a "TAKEN" or "RECEIVED" posting. The Freecycle Network also limited reposts of the same item to once every two weeks to prevent members from flooding the group with redundant requests. Id., ¶¶ 43-44, 48, Exhs. 41, 42, 46. On topic and courteous: The Freecycle Network required postings by members to be both on topic and courteous, punishing those who were rude or who personally attacked other members. Id., ¶¶ 43-44, Exhs. 41-42. The Freecycle Network prohibited political, religious, or any other non-gift-offering discussions from its groups. No First Come First Served: The Freecycle Network prohibited groups from instituting "first-come first-served" rules because they were prone to abuse by "post stalkers and resellers." Id., ¶ 65, Exh. 63. No Dictatorships: The Freecycle Network also encouraged its moderators not to act as dictators, since dictatorships were antithetical to the Freecycle Ethos. Moderators were told to "always be nice and light to the group, even if you are publicly giving one guy a strike so all learn not to do something." Id., ¶¶ 9, 13, 51, Exhs. 7, 11, 49.

·

·

·

These are just some examples among the many policies The Freecycle Network enforces to maintain the Freecycle Ethos among its groups. Id., ¶¶ 16, 40, 42-44, 46, 66, 94, Exhs. 14, 38, 40-42, 44, 64, 92. F. Monitoring Mechanisms Each local group, run by one or more local moderators and owners, must apply to effectively join The Freecycle Network. Beal Decl., ¶ 8, Exhs. 4-6; Kobialka Decl., ¶¶ 29, 97, Exhs. 27, 95. To be approved, each member must abide by The Freecycle Network's rules, including the Freecycle Etiquette and Trademark policy. Beal Decl., ¶ 8, Exhs. 4-6; Kobialka Decl., ¶¶ 29, 60, Exhs. 27, 58. Each member group is moderated by local volunteers who are required to unsubscribe members who do not comply with The Freecycle Network's rules. Beal Decl., ¶ 8, Exhs. 4-6; Kobialka Decl., ¶¶ 22, 32, 60, Exhs. 20, 30, 58. In return, the group is listed on the central The Freecycle Network registry. Beal Decl., ¶ 8, Exhs. 4-6; Kobialka Decl., ¶¶ 22, 32, Exhs. 20, 30. All member groups must utilize Yahoo! Groups, and can be removed from not only The Freecycle Network central registry, but can be removed from the Yahoo!

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Groups for violations of Trademark policy. Beal Decl., ¶ 8, Exhs. 4-6; Kobialka Decl., ¶¶ 29, 68-70, Exhs. 27, 66-68. In addition, The Freecycle Network instituted mechanisms to monitor and supervise its Ethos, Rules, Etiquette, and the Marks. Beal Decl., ¶¶ 12-19, Exhs. 8-43. These include local moderators, the Modsquad, New Group Approvers, Group Outreach and Assistants, Interim Moderators, and Penguin Patrol, which are described in further detail below. Id. III. LEGAL STANDARD A. Motions for Summary Judgment Summary judgment or adjudication is not appropriate if a material issue of fact exists for trial. Warren v. City of Carlsbad, 58 F.3d 439, 441 (9th Cir. 1995) (citation omitted). The underlying facts must be viewed in the light most favorable to the party opposing the motion. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587-88 (1986). "[S]ummary judgment will not lie if ... the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986) (citation omitted). The party moving for summary judgment or adjudication has the burden to show initially the absence of a genuine issue concerning any material fact. Adickes v. S.H. Kress & Co., 398 U.S. 144, 159 (1970). "Because of the intensely factual nature of trademark disputes, summary judgment is generally disfavored in the trademark arena." KP Permanent Make-up, Inc. v. Lasting Impression I, Inc., 408 F.3d 596, 602 (9th Cir. 2005) (quoting Entrepreneur Media, Inc. v. Smith, 279 F.3d 1135, 1140 (9th Cir. 2002)). IV. ARGUMENT A. A Genuine Issue of Material Fact Exists as to Whether The Freecycle Network Established Quality Control Standards to Ensure a Consistent User Experience For All Members of The Freecycle Network's Affiliated Groups Ownership of a valid trademark requires only that a trademark licensor protect the public from deceptive uses of a trademark by "polic[ing] in a reasonable manner the activities of his licensees." Dawn Donut Co. v. Hart's Food Stores, Inc., 267 F.2d 358, 367 (2d Cir. 1959). While this requirement implies the existence of quality standards to police, courts have never
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required trademark licensors to explicitly define such standards, nor have they discussed how concrete such standards must be. To the contrary, courts have often held that quality controls absent concretely defined standards are adequate to avoid a claim of naked licensing. See, e.g., Transgo, Inc. v. Ajac Transmission Parts Corp., 768 F.2d 1001 (9th Cir. 1985) (upholding a jury's determination that no naked licensing occurred even where licensor did have explicitly defined quality standards); see also Arner v. Sharper Image Corp., 39 U.S.P.Q.2d 1282, 1288 (C.D. Cal. 1995) (holding that provisions in a license agreement that required a licensee to inform a licensor of changes in the licensed products were enough to raise a genuine issue of material fact as to whether naked licensing occurred, even without evidence of any quality standards held by the licensor). Ultimately, the concern of courts is that the quality of the products or services offered under the trademark are consistent from licensee to licensee, regardless of what standards are in place or how formalized those standards are. Barcamerica Intern. USA Trust v. Tyfield Importers, Inc., 289 F.3d 589, 598 (9th Cir. 2002). Plaintiff would have the Court believe that The Freecycle Network established no quality controls. However, The Freecycle Network has offered substantial evidence showing that, from its inception, it has maintained some level of formal or informal quality standards that have ensured a consistent experience for its users that prevents any deception. Those standards include: 1) a requirement that all postings be "free, legal, and appropriate for all ages;" 2) general rules governing the procedure for posting items, the look and feel of Freecycle groups, and the number of Freecycle groups in a particular region; 3) the terms and conditions of Yahoo! Groups; and 4) the Freecycle Ethos that guarantees decentralized, democratic control that allows for adaptation to regional needs. Beal Decl., ¶¶ 9, 10, 20, 21; Kobialka Decl., ¶¶ 11-13, 27, 40, 42-44, 51-52, 76, 111, Exs. 9-11, 25, 38, 40-42, 49-50, 74, 109. As such, this abundance of evidence at the very least creates a genuine dispute of fact as to whether and to what degree The Freecycle Network established quality control standards. Plaintiff, therefore, is not entitled to summary judgment.

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1.

"Free, Legal, and Appropriate for All Ages"

Although developed and implemented earlier, The Freecycle Network approved as an official rule in January 2004 the quality control that all postings to its member groups be "free, legal, and appropriate for all ages." Plaintiff argues that, because the qualities of being "free, legal, and appropriate for all ages" are not unique to The Freecycle Network, they cannot be valid quality standards. However, the "free" requirement differentiates itself from other groups, such as Craigslist (see http://www.craigslit.org), because The Freecycle Network's groups are assured that they will not be co-opted by those seeking to make a profit by selling their goods or by those seeking a black market for their illegal goods. Additionally, the "appropriate for all ages" standard is not so ambiguous as to preclude it from being a quality standard. The Freecycle Network clearly defines the phrase as meaning, at a minimum, "no Alcohol, Tobacco, Firearms or Drugs, legal or otherwise." Kobialka Decl., ¶¶ 10, 43-44, 53, 61, 76, Exhs. 8, 41, 42, 51, 59, 74. Though moderators in the modsquad debate whether some particular items fall within the umbrella of "appropriate for all ages," these items are in the minority, and the core of what is considered "appropriate for all ages" is clear. Id., ¶¶ 10, 53, 60-61, Exhs. 8, 51, 58-59. The fact that The Freecycle Network allows groups to interpret at the fringes what the phrase means does not preclude it from being a quality standard, and Courts do not require trademark licensors to create quality standards that are devoid of all ambiguities. Further, Plaintiff's argument that this rule is not unique has no basis in the law and would make little sense in practice. The Freecycle Network is not required to define quality standards that uniquely identify it from all other providers of re-using, re-gifting, and recycling services. Rather, The Freecycle Network needs to define any quality standards that ensure consistency among its licensees such that consumers are not deceived. The Freecycle Network satisfies this requirement with its "free, legal, and appropriate for all ages" quality standard. 2. Other Quality Standards

Contrary to Plaintiff's contention, The Freecycle Network provides numerous other quality standards to its member groups. For example, The Freecycle Network's rules and guidelines ensure a consistent look, feel, and experience across all The Freecycle Network
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groups. Id., ¶¶ 9, 16, 40, 44, 52, Exhs. 7, 14, 38, 42, 50. As early as September of 2003, Mr. Beal sent a copy of The Freecycle Network's "ettiquette" [sic] to a new group in Portland. Id., ¶ 16, Exh. 14. Further, procedures for uniform posting, crossposting, geographic limitations, bans on activities such as curbside pickup offers, barter offers, and other activities deemed by The Freecycle Network to be outside of its mission, impart on all Freecycle groups a similar look and feel that consumers associate with the Freecycle mark. Id., ¶¶ 16, 40, 43-44, 52, 54, 58, 94, Exhs. 14, 38, 41-42, 50, 52, 56, 92. Moderators have enforced these quality standards since October 13, 2003, thus, a material issue of disputed fact exists as to whether these quality standards are in place. 3. Yahoo! Groups Terms and Conditions

Another quality standard that Plaintiff fails to acknowledge is The Freecycle Network's incorporation of Yahoo!'s standards for its message boards, which also maintains a level of consistency among all of its groups. Kobialka Decl., ¶ 29, Exh. 27. Since 2003, all The Freecycle Network groups have been required to follow the Terms and Conditions of Yahoo! Groups. Id., ¶¶ 29, 70, 92, Exhs. 27, 68, 90; Beal Decl., ¶ 20. The rules of conduct on Yahoo! Groups includes prohibitions on impersonating others, stalking members, sending spam messages, or harassing others. Kobialka Decl., ¶ 29, Exh. 27. The Penguin Patrol monitors the online member groups to identify "rogue groups," those groups that fail to comply with The Freecycle Network's rules and etiquette, and especially its Trademark policy. Beal Decl., ¶ 19, Exhs. 6, 42-43. After sending the non-compliant groups cease and desist letters, the Penguin Patrol contacts Yahoo! and notifies them of the non-compliant groups. Id. Yahoo! would then enforce the quality control by terminating all non-compliant member groups. Id., ¶ 8. 4. The Freecycle Ethos

One of the most important quality standards The Freecycle Network upholds is the "Freecycle Ethos," which, as discussed in detail above, has been present since the inception of The Freecycle Network. Id., ¶ 9. This Ethos guarantees, among other things, decentralized, participatory leadership that allows groups to adapt to their own regional needs. Id.; Kobialka
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Decl., ¶¶ 11-13, 27, 76. Exhs. 9-11, 25, 74. For example, The Freecycle Network's empowerment of local moderators to decide, at the fringes, what constitutes "appropriate for all ages" ensures that what a New York City group might consider appropriate for children does not have to govern what a group in Abilene, Texas believes is appropriate. Kobialka Decl., ¶¶ 10, 63, Exhs. 8, 61. The fact that local moderators are able to adapt the general The Freecycle Network policies to their communities does not demonstrate, as Plaintiff contends, that The Freecycle Network lacks quality standards, because the core The Freecycle Network policies and procedures remain in place and consistent from group to group. Id., ¶ 51, Exhs. 49. Instead, the guarantee of local flexibility itself serves as an important quality standard that helps define the Freecycle Ethos. Id., ¶¶ 10, 27, 51, Exhs. 8, 25, 49. Whether the Freecycle Ethos is meaningfully and viably decentralized, or "decidedly hands off" is a factual dispute precluding summary adjudication at this time. B. A Genuine Issue of Material Fact Exists as to Whether The Freecycle Network Retains an Implied Contractual Right to Inspect and Supervise Member Groups Though not a requirement to prevent naked licensing, a contractual right to inspect and supervise licensees serves as evidence of the requisite quality control measures. Barcamerica, 289 F.3d at 596 ("The lack of an express contract right to inspect and supervise a licensee's operations is not conclusive evidence of lack of control."). As long as "the particular circumstances of the licensing arrangement indicate that the public will not be deceived," no naked licensing has occurred. Id. An implied license granted by a non-profit organization can serve as the basis for a contractual right to inspect and supervise where the organization maintains guiding principles that define how member groups behave. Birthright v. Birthright Inc., 29 U.S.P.Q.2d 1081 (D.N.J. 1993). In Birthright, the trademark owner, a decentralized, non-profit organization providing pregnancy counseling services, permitted volunteers to charter local chapters of the organization and use the organization's trademarks. The organization was founded in 1968 and had expanded to include 43 entities operating around the country by 1971, when the organization first drafted the "Birthright Charter," a document defining the organization's
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"underlying philosophy and guiding principles." Id. at 1885-86. The court held that, even after 20 years of use pursuant to an implied license, the mark had not been abandoned because "defendants' use was subject to their compliance with the Birthright Charter and policy directives, as monitored and controlled by the Birthright Board." Id. at 1098-99. The court focused on the fact that "the parties were clearly not competitors" but rather "belonged to a single movement composed of many entities which, however loosely organized, retained a structure of authority as to such matters as monitoring and control of the "Birthright" name and ... logo." Id. .at 1099. The Freecycle Network's evidence that it granted implied licenses subject to adherence to The Freecycle Network's policies and procedures is enough, at the very least, to create a triable issue of fact as to whether The Freecycle Network retains an implied contractual right to inspect and supervise its member groups. The Freecycle Network has submitted evidence showing that, as in Birthright, its groups are not "competitors, " but form a "single movement composed of many entities" with a "structure of authority" (the modsquad, NGAs, GOAs, IMods, Penguin Patrol), that monitors and controls the "FREECYCLE" name and logo. As an umbrella organization, The Freecycle Network coordinates the reuse, recycling, and gifting of goods through its local member groups, who then coordinates the service to its members in the community. Since The Freecycle Network's mission is to reduce waste and ease the burden of landfills, each member group works cooperatively with The Freecycle Network to ensure the efficiency of its recycling efforts, including The Freecycle Network's creation, maintenance, and enforcement of rules, etiquette, and procedures for the recycling of goods. The Freecycle Network's evidence also shows that it has and continues to revoke its implied licenses from groups who have failed to follow this mandate and have strayed from the Freecycle mission. Kobialka Decl., ¶¶ 69, 87, 96-97, Exhs. 67, 85, 94-95. Thus, a factual dispute exists as to whether member groups understand that any use of the FREECYCLE mark subjects them to the inspection and supervision of The Freecycle Network.

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C.

A Genuine Issue of Material Fact Exists as to Whether The Freecycle Network Engages in Actual Quality Control That Prevents Deception of the Public Contrary to the Plaintiff's contentions, The Freecycle Network's evidence shows that it

engages in actual quality control efforts satisfying the quality control requirements. At the very least, genuine issues of material fact remain that render summary adjudication inappropriate at this time. In any case, the existence of actual quality controls, even absent a contractual right to control, satisfies the requirements against naked licensing. See Barcamerica, 289 F.3d at 596 ("There need not be formal quality control where the particular circumstances of the licensing arrangement indicate that the public will not be deceived.") (quotation and citations omitted); see also Dawn Donut, 267 F.2d at 368 ("The absence . . . of an express contract right to inspect and supervise a licensee's operations does not mean that the plaintiff's method of licensing failed to comply with the requirements of the Lanham Act. . . . [T]he question . . . is whether the plaintiff in fact exercised sufficient control."). The required level of actual quality control is flexible and varies with "the wide range of licensing situations in use in the modern marketplace." Barcamerica, 289 F.3d at 598 (quotation omitted). The only requirement is that the controls be adequate to prevent the mark from "ceasing to function as a symbol of quality and controlled source" and to ensure that the public is not deceived. Id. at 596 (quotation omitted); First Interstate Bancorp v. Stenquist, 16 U.S.P.Q.2d 1704, 1706 (N.D. Cal. 1990) ("[T]he amount of control a licensor must have over a licensee is limited to that which is necessary to prevent deception.") (citations omitted). The Freecycle Network satisfies this flexible requirement for actual quality controls because, at every stage in its history, The Freecycle Network instituted quality control measures commensurate with its size, service, and the expectations of the public. 1. The Freecycle Network's Actual Quality Controls Are More Than Sufficient Given the Minimal Quality Controls Required for Simple Services Like The Freecycle Network's

The level of quality control necessary to prevent naked licensing varies according to the complexity of the product. Simple products need only minimal quality controls. In Barcamerica, the court held that the "Da Vinci" mark had been abandoned by virtue of being
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licensed to a winery without adequate quality controls. Barcamerica, 289 F.3d at 598. The only evidence of quality controls were the mark owner's "random tastings and [] reliance on [the licensee's] reputation" and he provided no evidence of "when, how often, and under what circumstances" he tasted the wine. Id. at 596-97. According to the court, with a "relatively simple product" like wine, the owner needed only to "sample . . . on an annual basis, in some organized way, some adequate number of bottles of the Renaissance wines which were to bear Barcamerica's mark." Id. at 598. The Freecycle Network's re-using, re-gifting, and recycling services are relatively simple and require less quality control than more complex goods or services. As in Barcamerica, the operation of a recycling message board is simple and straightforward. Nevertheless, the quality controls instituted by The Freecycle Network are far more elaborate than the simple annual wine tastings required by the court in Barcamerica. The Freecycle Network has developed a multitiered quality oversight hierarchy, including moderators, NGAs, GOAs, I-Mods, and Penguin Patrol, dedicated to enforcing The Freecycle Network rules and responding to complaints from members of The Freecycle Network groups. Beal Decl., ¶¶ 11-19, Exhs. 8-43; Kobialka Decl., ¶¶ 79, 87-88, 98-99, Exhs. 76, 85, 86, 96, 97. The NGAs, the first level of quality control, regulate which groups are allowed to join The Freecycle Network based on their size, geography, and their adherence to The Freecycle Network guidelines. Beal Decl., ¶ 15, Exhs. 28-30; Kobialka Decl., ¶¶ 20, 83-85, Exhs. 18, 81-83. While Plaintiff has argued that new groups were started without any approval process, e.g. Kenneth Heddon's groups, contrary evidence indicates that NGAs carefully screened new groups prior to approval. As one example, a Johnson County, Indiana group applied to start a Freecycle group and "patiently waited" to get approval, which it eventually did. Kobialka Decl., ¶ 30, Exh. 28. Such a factual dispute precludes summary adjudication. In addition to NGAs, moderators have enforced The Freecycle Network's rules, etiquette, and quality control guidelines since October 2003. The moderators inspect and supervise the appropriateness of members' messages and postings, ensure that member groups have a back-up co-owner, maintain an efficient and practical web site, and answer questions by
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applying and policing The Freecycle Networks' rules and standards. Beal Decl., ¶¶ 12-14, Exhs. 8-27; Kobialka Decl., ¶¶ 10, 51, 64, Exhs. 8, 49, 62. For example, a Freecycle group in Westchase explicitly "obey[ed] [the] written and published rules of the Freecycle TM network group" and banned a member who had been spamming other group members. Kobialka Decl., ¶ 96, Exh. 94. To the extent that Plaintiff disputes this fact, arguing that The Freecycle Network never enforced such rules and policies upon the then freecyclesunnyvale group, issues of material fact remain that preclude summary adjudication at this time. Besides NGAs and moderators, The Freecycle Network created Group Outreach and Assistance ("GOAs") in September 2004 to oversee the groups that have already been approved, investigating reported violations of The Freecycle Network policies and advising local moderators on inter-group issues, such as flame wars, as well as overlapping issues with other member groups. Beal Decl., ¶ 17, Exhs. 5, 10, 32-39; Kobialka Decl., ¶¶ 20, 22, 31, 63, 70, 8788, 103, 110, Exhs. 18, 20, 29, 61, 68, 85, 86, 101, 108. Also, the Interim Moderator Team ("I-Mods") are responsible for temporarily moderating the group's compliance with The Freecycle Network's rules and Etiquette where the moderators had abandoned or wanted to stop moderating their group. Beal Decl., ¶ 18, Exhs. 40-41; Kobialka Decl., ¶¶ 85, 89, Exhs. 83, 87. Moreover, I-Mods set up a replacement group for deleted groups or for groups that have been removed from the network. Beal Decl., ¶ 18, Exhs. 40-41; Kobialka Decl., ¶¶ 85, 89, Exhs. 83, 87. The new groups must comply with The Freecycle Network's rule that replacement or headless groups to have at least two co-owners, the fictional co-owner Ersatzfriend and an interim moderator. Beal Decl., ¶ 16, Exh. 31. Finally, the Penguin Patrol establishes and polices the use of The Freecycle Network trademarks, including educating moderators on trademark matters and answering their questions. The Penguin Patrol monitors unaffiliated rogue groups using the Freecycle mark and sends cease and desist letters to non-compliant groups and dissidents. Id., ¶19, Exhs. 6, 42-43. The existence of these controls is what is important, not the effectiveness of the controls, and a licensor need not control every aspect of its licensee's business. Kentucky Fried Chicken Corp. v. Diversified Packaging Corp., 549 F.2d 368, 387 (5th Cir. 1977) ("We must determine
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whether Kentucky Fried has abandoned quality control; the consuming public must be the judge of whether the quality control efforts have been ineffectual"); Arthur Murray, Inc. v. Horst, 110 F. Supp. 678, 679-80 (D. Mass. 1953). Plaintiff freely admits that quality controls exist here. Instead, Plaintiff argues that, because The Freecycle Network does not control every aspect of its member groups activities with a totalitarian fervor, it did not "monitor and supervise" its groups. For example, Plaintiff argues that, because the GOAs did not strictly enforce every rule in every possible applicable situation, their oversight of groups could not be considered adequate. However, the fact that the quality control enforcers are empowered to make judgment calls based on the seriousness of a particular infraction does not negate the fact that these quality controls do exist. Trademark law does not require licensors to develop a Stalinistic relationship with their licensees in order to prevent the public from being deceived. 2. The Freecycle Network's Actual Quality Controls Are More Than Sufficient To Prevent Deception of the Public Given the Public's Expectations

Because the purpose of quality controls is to prevent the deception of the public rather than ensure a high quality good, the public's expectations of quality must factor into the level of quality control required. See Barcamerica, 289 F.3d at 596. If the public expects variation in the quality of a good or service from licensee to licensee, lower quality controls are necessary, since no deception will occur if those expectations are realized. Because the public is aware that The Freecycle Network is a decentralized, grass-roots organization offering its services for free, it must expect some level of informality and variation in rules and policies from group to group. Kobialka Decl., ¶¶ 11-13, 27, 97, Exhs. 9-11, 25, 95. Given these expectations, minimal quality controls are enough to prevent the deception of the public. As discussed above, the quality controls The Freecycle Network instituted far surpass the minimal controls required by trademark law. 3. The Freecycle Network Exercised Sufficient Quality Standards and Controls and thus, Precludes a Finding of Naked Licensing

Contrary to Plaintiff's assertion that The Freecycle Network had little to no involvement in quality standards and control of its service, The Freecycle Network was involved in providing
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its rules, Etiquette, and guidelines from Plaintiff's inception, ensuring that volunteer moderators, such as Abraham, monitored and supervised its members, and policing its trademark policy, which it found Plaintiff to have violated. Abraham claims, in her declaration, that "[m]any freecycling organizations promote freecycling by maintaining online groups" and that she started FreecycleSunnyvale by merely "registering with an internet provider, such as Yahoo!," however, Plaintiff fails to provide evidence of these alleged "freecyling organizations." See Abraham Decl., ¶¶ 3-4. Instead, it was Albert Kaufman, owner of the FreecyclePortland, an official member group of The Freecycle Network, that invited Lisanne Abraham in 2003 to be part of The Freecycle Network. Kobialka Decl., ¶ 113, Exh. 111 (Deposition of Lisanne Abraham at 13:21-14:8). Kaufman contacted Abraham and persuaded her to join The Freecycle Network. See Abraham Decl., ¶ 9. He further instructed her to follow The Freecycle Network's guidelines and set up an internet web site using using free hosting services offered by Yahoo!, Inc., to promote the service recycling services in Sunnyvale, California. Id. Kaufman further instructed Abraham to contact The Freecycle Network for use of The Freecycle Network logo. Kobialka Decl., ¶ 113, Exh. 111 (Abraham Depo. at 14:8-11). The Freecycle Network licensed its distinctive FREECYCLE logo for non-commercial use to Abraham to use on her Yahoo! Groups web site. Id. at 15:8-11; 27:22-28:3; 41:25-42:6. The use of the logo on the Plaintiff's web site was subject to specific rules which govern all member organizations of The Freecycle Network, including the most important requirement that the logo may not be used for commercial use. Id. at 41:1-18. This quality control was essential to maintaining The Freecycle Network's Ethos of acting selflessly and without personal gain. Mr. Beal welcomed Plaintiff to The Freecycle Network and provided Plaintiff with its Rules & Etiquette and guidelines, which Plaintiff utilized and maintained for its member group. Id. at 45:1-10; Beal Decl., ¶ 29, Exh. 46; see Abraham Decl., ¶ 17, Exh. E. In recognition of Plaintiff's status as a member group, The Freecycle Network maintained a link to Plaintiff's website on the www.freecycle.org site. Kobialka Decl., ¶ 113, Exh. 111 (Abraham Depo. at 21:5-10). The Freecycle Network further provided support through its mechanisms for monitoring the service through the use of moderators, NGAs, Ersatzfriend, GOAs, iMods, and
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the Penguin Patrol. Beal Decl., ¶ 11. From Plaintiff's inception, Abraham held a volunteer position with The Freecycle Network as a moderator of Plaintiff's website and volunteered to be part of The Freecycle Network's Modsquad. Kobialka Decl., ¶ 113, Exh. 111 (Abraham Depo. at 21:11-20; 21:24-25:3). Abraham's role as a moderator and as part of The Freecycle Network Modsquad demonstrates that Plaintiff's group was monitored and supervised by mechanisms created by The Freecycle Network. Abraham monitored members' messages to ensure compliance with The Freecycle Network rules and Etiquette before she approved their posts. Id. at 86:16-87:4. When she encountered a "tough call," she utilized The Freecycle Network's mechanism of contacting and interacting with other moderators to discuss any issues and any policies or procedures. Id. Finally, despite Plaintiff's awareness of The Freecycle Network's Trademark policy and its warnings by The Freecycle Network to comply with this important quality control, The Freecycle Network was forced to terminate Plaintiff as a member group. Id. at 41:1-24. On two separate occasions, The Freecycle Network asked Plaintiff to cease using the logo due to the failure to abide by the rules The Freecycle Network required of all member organizations. Des