Ivymedia Corporation v. Ilikebus, Inc. et al

Filing 32

Judge Nathaniel M. Gorton: MEMORANDUM & ORDER entered. The defendants 16 motion to dismiss, with respect to Counts II through VI, is ALLOWED, but is otherwise DENIED; the defendants 16 motion for a more definite statement is DENIED; and the plaintiff's 2 motion for a temporary restraining order and for a preliminary injunction is DENIED. (Danieli, Chris)

United States District Court
District of Massachusetts
IVYMEDIA CORPORATION,
Plaintiff,
v.
ILIKEBUS, INC., ALAN ZOU
and TONG WEI,
Defendants.

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Civil Action No.
15-11918-NMG

MEMORANDUM & ORDER
GORTON, J.
This case arises out of a copyright infringement dispute
between two businesses that provide online ticketing and
reservation services for bus companies.

Plaintiff IvyMedia

Corporation (“IvyMedia”) alleges that defendants iLIKEBUS, Inc.
(“iLIKEBUS”), Alan (a/k/a Xiaohui) Zou (“Zou”), Tong Wei (“Wei”)
and unidentified individual John Doe have infringed its
copyrighted materials through their website www.iLIKEBUS.com.
Pending before the Court are 1) plaintiff’s motion for a
temporary restraining order and a preliminary injunction to
enjoin defendants from further publishing any copyrighted
content by shutting down defendants’ website and 2) defendants’
motion to dismiss or, in the alternative, for more a definite
statement.

For the reasons that follow, defendants’ motion will
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be allowed, in part, and denied, in part, and plaintiff’s motion
for a preliminary injunction will be denied.
I.

Background
A.

Parties

IvyMedia, a Massachusetts corporation, offers a web-based
platform for customers to make reservations and purchase bus
tickets for inter-city travel in the United States.

It is the

owner and operator of the website www.GotoBus.com which launched
in 2006.1

IvyMedia acts as an independent contractor for bus

companies and receives a commission based on each ticket sale
made through its website.

The company holds federal trademark

registration number 3084987 from the United States Trademark
Office for the mark “GOTOBUS.”
Defendant iLIKEBUS is a Delaware corporation with its
principal place of business in Virginia.

Defendant Zou is a

director of iLIKEBUS and resides in Maryland.

Wei, the Chief

Executive Officer of iLIKEBUS, resides in Virginia.
Collectively, defendants operate the website www.iLIKEBUS.com
which also provides internet-based ticketing services for bus
trips.

IvyMedia’s original website www.IvyMedia.com has been operating
continuously since March, 2002.
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B.

IvyMedia’s Copyright

IvyMedia describes its website as containing both static
and dynamic pages.

A static page appears the same way whenever

a user visits it while a dynamic page is composed by a server in
response to a user’s specific request for information.
Plaintiff avers that all of the static pages on its website are
protected by a registered copyright issued by the United States
Copyright Office and those pages include
among other things, the summary descriptions and full
descriptions of each of the tours and vacations offered
on [its] website.
IvyMedia does not provide in its complaint or accompanying
declaration, however, the copyright registration number, the
date its copyright became effective or a description of the
scope of its copyright.

Plaintiff instead mentions in a

declaration accompanying its opposition to defendants’ motion to
dismiss that IvyMedia received its certificate of copyright
registration in 2005.

Moreover, although plaintiff indicates in

footnote 3 of its motion for preliminary injunction that the
subject copyright extends to
portion of text; revision of pre-existing text;
selection, coordination and arrangement of text, graphic
art & photograph
and cites paragraph 22 of the Chen Declaration, that quote does
not in fact appear in the referenced declaration.

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C.

Defendants’ Alleged Infringement

IvyMedia contends that in April, 2015, it discovered that
defendants’ website copied numerous aspects of the
www.GotoBus.com website including
descriptions of the various bus details, the user
interface including selection menu options and search
results, the design of website icons, the user interface
for dynamic price, the search result filter, and other
elements contained in the website.
Plaintiff also offers several exhibits depicting
screenshots comparing the two websites.

It avers that the

exhibits indicate that defendants copied plaintiff’s 1) user
interface design of the search box and search results, 2) user
interface for schedule selection in the search results, 3) user
interface for selecting a new city, 4) design of the “sold out”
and “overnight” icons, 5) user interface for roundtrip schedule
selection, including the exact wording and expanded schedules
and 6) checkout process.
D.

Procedural History

Plaintiff simultaneously filed the instant lawsuit and
motion for preliminary injunction in May, 2015.

The complaint

asserts claims for 1) copyright infringement in violation of 17
U.S.C. § 501, 2) unfair competition and false designation of
origin in violation of the Lanham Act, 15 U.S.C. § 1125(a), 3)
violation of the Anticybersquatting Consumer Protection Act, 15

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U.S.C. § 1125(d), 4) common law unfair competition, 5) unjust
enrichment and 6) violation of M.G.L. c. 93A.
The following month, defendant moved to dismiss the case
for lack of personal jurisdiction pursuant to Fed. R. Civ. P.
12(b)(2) and for failure to state a claim pursuant to Fed. R.
Civ. P. 12(b)(6).

A hearing on both motions was held in July,

2015.
II.

Defendants’ Motion to Dismiss, or in the Alternative, for a
More Definite Statement
A.

Personal Jurisdiction
1.

Legal Standard

In order to hear cases and issue judgments the Court must
first find personal jurisdiction over the parties. United States
v. Swiss Am. Bank, Ltd., 191 F.3d 30, 35 (1st Cir. 1999).

The

plaintiff bears the burden of proving personal jurisdiction and
must present specific facts to support its claim. Foster–Miller,
Inc. v. Babcock & Wilcox Canada, 46 F.3d 138, 145 (1st Cir.
1995).

The Court accepts properly supported proffers of

evidence by the plaintiff as true and considers facts put
forward by the defendants to the extent that they are
uncontradicted by the plaintiff. Newman v. European Aeronautic
Defence & Space Co. Eads N.V., 700 F. Supp. 2d 156, 159 (D.
Mass. 2010).

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To establish personal jurisdiction, a plaintiff must show
that jurisdiction is 1) statutorily authorized and 2) consistent
with the Due Process Clause of the United States Constitution.
Astro–Med, Inc. v. Nihon Kohden Am., Inc., 591 F.3d 1, 8 (1st
Cir. 2009).

Because the Massachusetts long-arm statute, M.G.L.

c. 223A, § 3, reaches to the full extent that the Constitution
allows, the Court proceeds directly to the constitutional
analysis. See Sawtelle v. Farrell, 70 F.3d 1381, 1388 (1st Cir.
1995).
The Due Process Clause requires minimum contacts between a
nonresident defendant and the forum state such that the exercise
of personal jurisdiction over that defendant accords with
“traditional notions of fair play and substantial justice.”
Int’l Shoe Co. v. Washington, 326 U.S. 310, 316 (1945).
There are two forms of personal jurisdiction: general and
specific. Pritzker v. Yari, 42 F.3d 53, 59 (1st Cir. 1994).
Specific jurisdiction is the narrower of the two kinds and
exists when the plaintiff's cause of action arises out of or
relates to the defendants’ contacts with the forum state. Id. at
60.

Specific jurisdiction is appropriate when 1) the claims

arise out of or are related to the defendants’ in-state
activities, 2) the defendants have purposefully availed
themselves of the laws of the forum state and 3) the exercise of

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jurisdiction is reasonable under the circumstances. Sawtelle, 70
F.3d at 1389.
Alternatively, general jurisdiction exists when the
defendant has engaged in “continuous and systematic activity”,
unrelated to the suit, in the forum state. Id.

IvyMedia does

not allege that the Court has general jurisdiction over
defendants.

The Court therefore will proceed only with an

analysis of specific jurisdiction.
2.

Application

Plaintiff contends that the Court has specific jurisdiction
over defendants because 1) they have previously conducted
business in Massachusetts, 2) they market and sell their
products and services to Massachusetts residents, 3) many of the
bus trips offered by defendants begin, end or traverse
Massachusetts, 4) defendants have paying customers in
Massachusetts, 5) the allegedly infringing website reaches
Massachusetts and 6) defendants have targeted and inflicted
injury upon a business located in Massachusetts.
Defendants dispute each of plaintiff’s allegations with the
exception of the allegation that the website reaches
Massachusetts.

They aver that they do not conduct business in

Massachusetts, do not market or sell their products to
Massachusetts residents, do not offer bus trips that begin, end
or traverse the Commonwealth and do not have any paying
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customers in Massachusetts.

Moreover, defendants contend that

iLIKEBUS is not registered to do business in Massachusetts, does
not have any offices, property or employees in Massachusetts and
has not entered into any contracts in Massachusetts or with any
Massachusetts entities.
Accepting all of defendants’ assertions as true, the Court,
nevertheless, finds personal jurisdiction over iLIKEBUS and its
corporate officers, see Marks v. Polaroid Corp., 237 F.2d 428,
435 (1st Cir. 1956) (noting that corporate officers may be
subject to personal jurisdiction based on the infringing acts of
their employer if they are a “moving, active, conscious force
behind the [alleged] infringement”), for the following reasons:
a.

Relatedness

The relatedness prong of the test for personal jurisdiction
“focuses on the nexus between the defendant[s’] contacts and the
plaintiff’s cause of action” to ensure that defendants will not
be subject to personal jurisdiction unless their contact with
the forum state caused the alleged harm. Ticketmaster-New York,
Inc. v. Alioto, 26 F.3d 201, 206-07 (1st Cir. 1994).
The Court concludes that plaintiff’s claims are related to
defendants’ in-state activities because the alleged wrongdoing
arises out of the publication of a website
that
is
continuously
available
to
Massachusetts
residents and [allegedly] causing tortious injury in
Massachusetts to [plaintiff].
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Hasbro Inc. v. Clue Computing Inc., 994 F. Supp. 34, 44 (D.
Mass. 1997).
b.

Purposeful Availment

The second inquiry relative to specific jurisdiction is
whether the defendant “purposefully avail[ed] itself of the
privilege of conducting activities within the forum State”.
Hanson v. Denckla, 357 U.S. 235, 253 (1958).

Voluntariness and

foreseeability are the focal points of the inquiry. Sawtelle, 70
F.3d at 1391.

The threshold of purposeful availment is lower,

however, for cases that involve “torts that create causes of
action in a forum state (even torts caused by acts done
elsewhere).” Digital Equip. Corp. v. AltaVista Tech., Inc., 960
F. Supp. 456, 469 (D. Mass. 1997)
Although plaintiff has not proffered evidence of
defendants’ advertising or sales to Massachusetts residents, the
Court concludes that purposeful availment is satisfied because
the target of the alleged copyright infringement was a
Massachusetts company. See Venture Tape Corp. v. McGills Glass
Warehouse, 292 F. Supp. 2d 230, 233 (D. Mass. 2003) (holding
that defendant’s alleged misuse of trademarks belonging to a
Massachusetts company alone is enough to satisfy purposeful
availment even though “there [was] no indication that

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[defendant’s website] targeted Massachusetts residents in any
way”); see also Digital, 960 F. Supp. at 469.
c.

Reasonableness

Finally, the reasonableness inquiry operates on a sliding
scale with the first two factors of the jurisdictional analysis,
such that a stronger showing of relatedness and purposeful
availment serves to ease the plaintiff’s burden of establishing
reasonableness. Risktimetry Analytics, LLC v. Altaira, LLC, 752
F. Supp. 2d 141, 147 (D. Mass. 2010).

In evaluating

reasonableness, this Court considers a series of “gestalt
factors”: 1) defendant’s burden of appearing, 2) the forum
state’s interest in adjudicating the dispute, 3) plaintiff’s
interest in obtaining convenient and effective relief, 4) the
judicial system’s interest in effectively resolving the
controversy and 5) the common interests of all sovereigns in
promoting substantive social policies. Adelson v. Hananel, 510
F.3d 43, 51 (1st Cir. 2007).
The Court concludes that the plaintiff has adequately
demonstrated reasonableness of adjudicating the case in
Massachusetts.

Accordingly, defendants’ motion to dismiss the

case for lack of personal jurisdiction will be denied.

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B.

Substantive claims
1.

Legal Standard

To survive a motion to dismiss, a complaint must contain
sufficient factual matter, accepted as true, to “state a claim
to relief that is plausible on its face.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007).

The Court must accept all

factual allegations in the complaint as true and draw all
reasonable inferences in the plaintiff’s favor. Langadinos v.
Am. Airlines, Inc., 199 F.3d 68, 69 (1st Cir. 2000).

It may

also supplement the facts contained in the pleadings by
considering documents central to plaintiff’s claims and
documents sufficiently referenced in the complaint. Curran v.
Cousins, 509 F.3d 36, 44 (1st Cir. 2007).

The Court, however,

need not accept legal conclusions as true. Ashcroft v. Iqbal,
129 S. Ct. 1937, 1949 (2009).

Threadbare recitals of the legal

elements, supported by mere conclusory statements, do not
suffice to state a cause of action. Id.

Accordingly, a

complaint does not state a claim for relief where the well-pled
facts fail to warrant an inference of any more than the mere
possibility of misconduct. Id. at 1950.
2.

Copyright Infringement (Count I)

To state a claim for copyright infringement, plaintiff must
allege plausible facts demonstrating 1) ownership of a valid
copyright and 2) copying of constituent elements of the work
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that are original. Feist Publ’ns, Inc. v. Rural Tel. Servs. Co.,
499 U.S. 340, 361 (1991).

With respect to the first element, a

certificate of copyright registration is prima facie evidence of
ownership of a valid copyright. Lotus Dev. Corp. v. Borland
Int'l, Inc., 49 F.3d 807, 813 (1st Cir. 1995).
To satisfy the second prong, actionable copying,
plaintiff must first prove that the alleged infringer
copied plaintiff's copyrighted work as a factual
matter...[by] either present[ing] direct evidence of
factual copying or, if that is unavailable, evidence
that the alleged infringer had access to the copyrighted
work and that the offending and copyrighted works are so
similar that the court may infer that there was factual
copying (i.e., probative similarity). The plaintiff must
then prove that the copying of copyrighted material was
so extensive that it rendered the offending and
copyrighted works substantially similar.
Id. (citations omitted).
Defendants contend that IvyMedia has failed to state a
copyright infringement claim because the complaint fails 1) to
identify the title or registration number of the subject
copyright, 2) to allege when the infringement occurred or 3) to
identify the scope of the copyrighted materials or the alleged
infringement.

The Court agrees with the defendants that

plaintiff’s pleadings are tenuous but concludes that it has,
nevertheless, pled enough to survive a motion to dismiss.
With respect to the identification of the copyright,
IvyMedia alleges that it holds a valid copyright to portions of
its website.

Although it would have been helpful for plaintiff
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to provide the copyright registration number and description
without requiring the defendants and the Court to look for it
independently, that copyright was adequately referenced in the
complaint to enable a relatively easy search.
As for the timing of the infringement, plaintiff has
alleged that iLIKEBUS was incorporated in August, 2014 and that
it discovered defendants’ website in April, 2015.

Presumably

the alleged infringement occurred prior to the time the website
became publicly available sometime between August, 2014 and
April, 2015.
With respect to the scope of the infringement, plaintiff
alleges that defendants copied various protected contents from
the www.GotoBus.com website including 1) descriptions of bus
details, 2) the user interface for selection menu options and
search results, 3) the design of website icons and 4) the search
result filter.

IvyMedia also provides several screenshots of

examples of the alleged infringement.
Taking plaintiff’s factual assertions as true at the motion
to dismiss stage, the Court concludes that IvyMedia has
adequately pled a claim for a copyright infringement.
Defendants’ motion to dismiss Count I will therefore be denied.
3.

Lanham Act (Count II)

The Lanham Act prohibits unfair competition through false
or misleading representations that could cause confusion with
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respect to the “origin, sponsorship, or approval” of goods or
services. 15 U.S.C. § 1125(a)(1)(A).

Plaintiff alleges that

defendants violated the Lanham Act because their website
contains materials intentionally copied from IvyMedia’s
websites and infring[es] on [] copy-righted materials.
IvyMedia has failed, however, to make any allegations to
support its Lanham Act claim beyond those in support of its
copyright infringement claim.

The Lanham Act claim is therefore

duplicative. See Mitchell Int'l, Inc., v. Fraticelli, 2007 WL
4197583, at *12 (D.P.R. Nov.26, 2007) (“Where a plaintiff's
Lanham Act claim merely alleges that the defendant made
unauthorized use of a copyrighted work, the Lanham Act claim
will be dismissed as duplicative of the copyright claim.”)
Accordingly, Count II of plaintiff’s complaint will be
dismissed.
4.

Anticybersquatting Consumer Protection Act
(“ACPA”) (Count III)

To state a claim under the ACPA, plaintiff must allege that
defendants 1) registered, trafficked in or used a domain name,
2) that is confusingly similar to the plaintiff’s trademark and
3) had a bad faith intent to profit from that domain name. 15
U.S.C. § 1125(d).
Plaintiff has not alleged that defendants’ domain name
www.iLIKEBUS.com is confusingly similar to plaintiff’s “GOTOBUS”

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trademark.

Defendants’ motion to dismiss Count III of

plaintiff’s complaint will therefore be allowed.
5.

State Law Claims (Counts IV-VI)

Defendants contend that plaintiff’s state law claims for
common law unfair competition (Count IV), unjust enrichment
(Count V) and violations of the Massachusetts Consumer
Protection Act (“Chapter 93A”) (Count VI) are preempted by the
Copyright Act.

The Court agrees.

The Copyright Act contains an express preemption provision
that preempts all state causes of action that are equivalent to
a federal copyright infringement claim. 17 U.S.C. § 301(a).

A

state law claim is preempted if
1) The work involved falls within the subject matter of
the copyright and 2) the state law claim incorporates no
extra element that is qualitatively different from the
copyright claim.
Steele v. Turner Broad. Sys., Inc., 607 F. Supp. 2d 258, 263 (D.
Mass. 2009).
Here, plaintiff’s state law claims as alleged in the
complaint are based on the same conduct as its copyright
infringement claim and are therefore preempted by the Copyright
Act. See Feldman v. Twentieth Century Fox Film Corp., 723 F.
Supp. 2d 357, 368 (D. Mass. 2010) (“Courts in this circuit have
repeatedly held...unfair competition[] and unjust enrichment
claims, when based on the same allegations as the copyright

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claim, to be preempted.”); Patricia Kennedy & Co. v. Zam-Cul
Enterprises, Inc., 830 F. Supp. 53, 56 (D. Mass. 1993) (“courts
have determined that state law causes of action premised on
theories such as misappropriation or unfair competition wherein
the allegations are concerned solely with the copying or
replication of protected works of authorship are preempted.”).
Accordingly, defendants’ motion to dismiss Counts IV
through VI will be allowed.
C.

Motion for a More Definite Statement

Pursuant to Rule 12(e) of the Federal Rules of Civil
Procedure, defendants move for a more definite statement of
Count I which survives the motion to dismiss.

A motion for a

more definite statement should be allowed only where a complaint
is “so vague or ambiguous that a party cannot reasonably prepare
a response.” Fed. R. Civ. P. 12(e).

That rule “is designed to

remedy unintelligible pleadings, not merely to correct for lack
of detail.” Kelly v. L.L. Cool J., 145 F.R.D. 32, 35 (S.D.N.Y.
1992).
The motion is inapt here because the Court has already
concluded that plaintiff has pled its copyright infringement
claim adequately.

Moreover, defendants may obtain additional

information with respect to the scope of plaintiff’s copyright
protection through discovery.

Defendants’ motion for a more

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definite statement with respect to Count I of plaintiff’s
complaint will therefore be denied.
III. Plaintiff’s Motion for a Preliminary Injunction
A.

Legal Standard

In order to obtain a preliminary injunction, the moving
party must establish
(1) a substantial likelihood of success on the merits,
(2) a significant risk of irreparable harm if the
injunction is withheld, (3) a favorable balance of
hardships and (4) a fit (or lack of friction) between
the injunction and the public interest.
Nieves-Marquez v. Puerto Rico, 353 F.3d 108, 120 (1st Cir. 2003)
(citation omitted).
Claims based on copyright infringement are subject to a
modified preliminary injunction standard, wherein the Court
must ordinarily presume that the plaintiff has suffered
irreparable harm and that an injunction will serve the
public interest if the plaintiff demonstrates a
likelihood of success on the merits.
Green Book Int'l Corp. v. Inunity Corp., 2 F. Supp. 2d 112, 124
(D. Mass. 1998) (citing Concrete Mach. Co. v. Classic Lawn
Ornaments, Inc., 843 F.2d 600, 612-13 (1st Cir. 1988)).
Accordingly, the likelihood of success on the merits “weighs
heaviest on the decisional scales.” Coquico, Inc. v. RodriguezMiranda, 562 F.3d 62, 66 (1st Cir. 2009).

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B.

Application
1.

Likelihood of Success

To prevail on a copyright infringement claim, the alleged
copyright owner must prove ownership of a valid copyright and
the unauthorized copying of elements of the work that are
original. Feist Publ’ns, Inc., 499 U.S. at 361.
Plaintiff appears to hold a December, 2005 copyright
registration for its website which covers “New Matter:
additions, revisions, selection & arr. of text, art and photos.”
It alleges that defendants copied various protected contents
from the www.GotoBus.com website including descriptions of bus
details and numerous user interfaces with respect to searching
for and purchasing bus tickets.
The Court cannot conclude, however, that plaintiff is
likely to succeed on the merits of its copyright infringement
claim at this stage for several reasons.
First, the December, 2005 copyright registration covers the
version of the IvyMedia website published in October, 2005.

It

is unclear to the Court which portions of that website have been
modified and are still covered by the ten-year-old registration.
Second, certain webpages depicted in the exhibits
accompanying plaintiff’s complaint appear to be “dynamic pages”
composed by a server in response to a user’s specific request
for information.

Although the Court perceives similarities in
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the user interfaces of the parties’ webpages, IvyMedia has not
demonstrated that it is likely to succeed in proving that its
copyright registration covers those allegedly copied features.
Finally, with respect to the copyright-protected “static
pages” which include the summary descriptions and full
descriptions of each of the tours and vacations offered,
plaintiff has failed to provide examples of copying of such
descriptions by defendants.

The Court is not therefore in a

position to assess the likelihood of success of plaintiff’s
copyright infringement claim based upon unauthorized copying of
those static pages.
Accordingly, the Court cannot at this stage of the
litigation conclude that plaintiff is likely to succeed on the
merits of its copyright claim and plaintiff’s motion for a
preliminary injunction will be denied.

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ORDER
For the foregoing reasons,
1)

defendants’ motion to dismiss (Docket No. 16) is, with
respect to Counts II through VI, ALLOWED, but is
otherwise DENIED;

2)

defendants’ motion for a more definite statement
(Docket No. 16) is DENIED; and

3)

plaintiff’s motion for a temporary restraining order
and for a preliminary injunction (Docket No. 2) is
DENIED.

So ordered.
/s/ Nathaniel M. Gorton
Nathaniel M. Gorton
United States District Judge
Dated July 13, 2015

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