Case 1:13-cv-01215-TSC Document 239 Filed 03/31/22 Page 43 of 47
disclaimers sufficiently mitigate against any confusion that Plaintiffs sponsored or endorsed Defendant’s PDFs.
The same is true for the other two forms of disclaimers—those appearing on Defendant’s Internet Archive and HTML formatted posts. Plaintiffs argue that users are unlikely to read the disclaimers because they must scroll down the webpage to see the Internet Archive disclaimer and because the HTML disclaimer appears under a heading titled, “PREAMBLE (NOT PART OF THE STANDARD).” But there is no evidence indicating that users would not scroll down to see a disclaimer, or that they would not read a standard’s preamble. The court instead finds Defendant’s disclaimers to be positioned in prominent enough locations to “adequately eliminate the possibility a consumer would assume sponsorship of endorsement by ASTM,” ASTM, 896 F.3d at 457, given the minimal references to any Plaintiff elsewhere in the posts and Defendant’s removal of Plaintiffs’ logos, see Dr. Seuss Enters., L.P. v. ComicMix LLC, 300 F. Supp. 3d 1073, 1091 (S.D. Cal. 2017) (finding defendant satisfied the third nominative fair use factor where it did “nothing in conjunction with the use of the mark to suggest a sponsorship or endorsement by Plaintiff” and added a disclaimer to the third page of the contested work); Keurig, Inc. v. Strum Foods, Inc., 769 F. Supp. 2d 699, 709 (D. Del. 2011) (finding that although disclaimer was on the bottom of a box, it nonetheless was sufficient where there was no evidence demonstrating that customers would not look to the bottom of the box); see also Playboy Enters., Inc. v. Welles, 279 F.3d 796, 803 (9th Cir. 2002) (“In addition to doing nothing in conjunction with her use of the marks to suggest sponsorship or endorsement by [plaintiff], [the defendant] affirmatively disavows any sponsorship or endorsement. Her site contains a clear statement disclaiming any connection to [the plaintiff].”)
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