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Daniel K. Chestang, et al v. Yahoo!

December 6, 2012

DANIEL K. CHESTANG, ET AL., PLAINTIFFS,
v.
YAHOO!, INC., DEFENDANT.



The opinion of the court was delivered by: Allison Claire United States Magistrate Judge

FINDINGS & RECOMMENDATIONS

Plaintiff, proceeding pro se and in forma pauperis, filed the operative third amended complaint on September 25, 2012.*fn1 Presently pending before the court is defendant Yahoo!, Inc.'s ("Yahoo") October 10, 2012 motion to dismiss. Plaintiff opposes the motion. On review of the motion, the documents filed in support and opposition, and good cause appearing, THE COURT FINDS AS FOLLOWS:

FACTUAL ALLEGATIONS

To the extent that the court can decipher the third amended complaint ("TAC"), plaintiff appears to accuse Yahoo of infringing on plaintiff's copyrighted work, "LUMINOUS LYRICS," in violation of the Copyright Act, 17 U.S.C. §§ 101 et seq. It is impossible to determine from the TAC what exactly "LUMINOUS LYRICS" is. It is variously described as an "Original Authored Literary, Musical, Pictorial, or Graphic Expression," TAC at 1; a business entity created to sell or lease original song lyrics, id. at 2; "Music Sound Recordings Song Lyrics," id. at 3; an "Original Expression," id. at 6; a "Business of Trade in the Music Entertainment Industry," id.; and a collection of song lyrics, see id., Attach. (Doc. No. 49 at 8-9). Whatever its precise nature, plaintiff claims he used its creation to develop a music recording label that has produced two music albums displaying a graphic unique to "LUMINOUS LYRICS."

As to Yahoo's allegedly infringing conduct, the TAC is even more confusing. While at one point plaintiff accuses Yahoo of "illegally allow[ing] an unknown customer of theirs to purchase and HOST LUMINOUS LYRICS as a Domain Name and establish a Business of Trade that infringes upon the Plaintiffs Music entertainment," plaintiff does not identify or describe the website allegedly violating plaintiff's rights, or even whether Yahoo is or was aware of this allegedly infringing website. Plaintiff then asserts that:

. . . the illegal Business of trade in Music Entertainment by defendant would/could confuse customers where Defendant sells "RING TONES" on their site which are songs released by various artists in order to promote their Music Sound Recordings Albums to generate revenue while paying the HOST for its service of reaching potential fans of their Music they produce to the public. TAC at 4; and

. . . that revenue generated by the Defendant who HOSTS VARIOUS ARTISTS is in fact an infringement where LUMINOUS LYRICS WAS CREATED AND Registered to HOST the ORIGINAL AUTHORS OWN SONG LYRICS to sell or lease which are UNIQUELY LUMINOUS to the Industry of Music Entertainment.

Id. at 5. These and other vague allegations constitute the entirety of the TAC. Without explaining what "LUMINOUS LYRICS" is or how Yahoo infringed on plaintiff's copyright, the court cannot say what precisely plaintiff is accusing Yahoo of doing in violation of copyright law. The TAC thus leaves a number of questions unanswered: Is "LUMINOUS LYRICS" a copyrighted work or a trademark? How did Yahoo infringe on plaintiff's rights? To the extent "LUMINOUS LYRICS" refers to song lyrics, is plaintiff accusing Yahoo of using these lyrics in ring tones that are advertised on Yahoo's web pages? Is plaintiff accusing Yahoo of facilitating violations of plaintiff's intellectual property rights by non-party individuals? Is plaintiff accusing Yahoo of illegally reproducing its logo?

RELEVANT PROCEDURAL BACKGROUND

The court incorporates by reference the history of this action as set forth in Magistrate Judge Kendall J. Newman's September 7, 2012 order dismissing plaintiff's second amended complaint ("SAC") with leave to amend.*fn2 See Doc. No. 48. There, on grant of Yahoo's November 16, 2011 motion to dismiss the SAC, Judge Newman determined that plaintiff cannot state a copyright claim as a matter of law based on averments made in plaintiff's opposition to Yahoo's motion that his claim was based in trademark law. See Doc. No. 48 at 10. Further based on these averments, Judge Newman dismissed the SAC and granted plaintiff leave to amend to state a claim for trademark infringement. Plaintiff was then given extensive direction as to what to include in the third amended complaint, which the court reproduces here:

(a) include the [ ] allegations that were expressed in [plaintiff's] Opposition [to Yahoo's November 16, 2011 motion to dismiss];

(b) explain exactly what "LUMINOUS LYRICS" is;

(c) clarify plaintiff's "ringtone" allegations, including explaining how "LUMINOUS LYRICS" was allegedly used in connection with the sale of ringtone(s);

(d) explain how defendant's "ringtones" are sold using the name "LUMINOUS LYRICS" and describe defendant's alleged improper conduct in connection therewith. For instance, does plaintiff allege that defendant is ...


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