Baldino's Lock & Key Service v. Google, Incorporated , 624 F. App'x 81 ( 2015 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-1202
BALDINO’S LOCK & KEY SERVICE, INC.,
Plaintiff – Appellant,
v.
GOOGLE INC.; ZIPLOCAL, LP; JOHN DOES 1-25; GOOGLE
INFORMATION, INC.,
Defendants – Appellees,
and
SUPERMEDIA SALES, INC.; YELLOWBOOK INC., a division of
Hibu, Inc.,
Defendants.
Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. Claude M. Hilton, Senior
District Judge. (1:14-cv-00636-CMH-TCB)
Submitted: November 30, 2015 Decided: December 4, 2015
Before NIEMEYER, MOTZ, and DIAZ, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Donald C. Holmes, DONALD C. HOLMES & ASSOCIATES, P.A.,
Greensboro, Maryland; Andrew C. Bisulca, LAW OFFICE OF ANDREW C.
BISULCA, P.C., Woodbridge, Virginia, for Appellant. Dennis J.
Quinn, Kristine M. Ellison, CARR MALONEY P.C., Washington, D.C.;
Daryl L. Joseffer, Taylor T. Lankford, Carolyn M. Sweeney, KING
& SPALDING LLP, Washington, D.C.; Kathleen E. McCarthy, KING &
SPALDING, New York, New York, for Appellees.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
Baldino’s Lock & Key Service, Inc. (Baldino’s) appeals the
district court’s order granting the Defendants’ motions to
dismiss for failure to state a claim upon which relief can be
granted. We affirm.
Baldino’s is a Virginia corporation and licensed locksmith
that provides locksmith services in Virginia, Maryland and the
District of Columbia. In its Second Amended Complaint,
Baldino’s asserted that the Defendants, Google, Inc.,
YellowBook, Inc., and Ziplocal, LP, knowingly published the
names, addresses and phone numbers of unlicensed locksmiths on
their websites in order to gain advertising revenue. Baldino’s
alleged violations of the Racketeer Influenced and Corrupt
Organizations Act (RICO), 18 U.S.C. §§ 1961-68 (2012), and the
Lanham Act, 15 U.S.C. § 1125(a)(1)(B) (2012).
The district court granted the Defendants’ motions to
dismiss. Of relevance to this appeal, * the court determined that
Baldino’s had not shown that the Defendants had made a false or
misleading description or representation of fact and,
accordingly, had failed to state a claim under the Lanham Act.
* On appeal, Baldino’s has expressly abandoned both its
claims against YellowBook and its RICO claims.
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We review de novo a district court’s dismissal of an action
for failure to state a claim. Trejo v. Ryman Hosp. Props.,
Inc., 795 F.3d 442, 445-46 (4th Cir. 2015). To survive a Rule
12(b)(6) dismissal, “a complaint must contain sufficient factual
matter, accepted as true, to state a claim to relief that is
plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (internal quotation marks omitted). We must accept as
true the complaint’s factual allegations and draw all reasonable
inferences in favor of the nonmoving party. Kensington
Volunteer Fire Dep’t v. Montgomery Cty., 684 F.3d 462, 467 (4th
Cir. 2012).
The “Lanham Act creates a private right of action for
corporate victims of ‘false or misleading’ descriptions or
representations.” In re GNC Corp., 789 F.3d 505, 514 (4th Cir.
2015). To prevail on a Lanham Act claim, a plaintiff must
establish that:
(1) the defendant made a false or misleading
description of fact or representation of fact in a
commercial advertisement about his own or another’s
product; (2) the misrepresentation is material, in
that it is likely to influence the purchasing
decision; (3) the misrepresentation actually deceives
or has the tendency to deceive a substantial segment
of its audience; (4) the defendant placed the false or
misleading statement in interstate commerce; and
(5) the plaintiff has been or is likely to be injured
as a result of the misrepresentation, either by direct
diversion of sales or by a lessening of goodwill
associated with its products.
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Design Resources, Inc. v. Leather Indus. of Am., 789 F.3d 495,
501 (4th Cir. 2015).
Here, the district court correctly determined that
Baldino’s failed to show that the Defendants made any
representations. Rather, the locksmiths who generated the
information that appeared on Defendants’ websites are solely
responsible for making any faulty or misleading representations
or descriptions of fact. Accordingly, the district court did
not err in dismissing Baldino’s Lanham Act claim under Rule
12(b)(6).
We therefore affirm. We dispense with oral argument
because the facts and legal contentions are adequately presented
in the materials before the court and argument would not aid the
decisional process.
AFFIRMED
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