Laatz v. Zazzle, Inc.

Background

Nicky Laatz sued Zazzle, Inc. and Mohamed Alkhatib. Her amended complaint asserted claims for fraudulent misrepresentation, fraudulent concealment, promissory fraud, federal copyright infringement, federal trademark infringement, and breach of contract. The dispute concerned Laatz’s Blooming Elegant Trio fonts and the software used to implement them, which she offered for licensing through Creative Market.

Creative Market’s account process required users to agree to its Terms of Service. Those Service Terms incorporated separate License Terms. Laatz also relied on a Creative Market License FAQ and links to that FAQ on the product Shop Page.

In an earlier order, the court granted Laatz’s motion for partial summary judgment on whether the defendants had shown mutual assent—an objective agreement to the terms—to the Service Terms and License Terms. The court otherwise denied that motion. The earlier order also stated that the court could not determine as a matter of law that the defendants had assented to the License FAQ.

Motions and analysis

The defendants sought clarification of the earlier order’s description of their position regarding the License Terms and the License FAQ. Laatz did not object to deleting the statement that the defendants had said the license might include only the License Terms. The court agreed to amend the order to state that the defendants did not identify a particular combination of documents as the license and specifically disputed mutual assent to both the License Terms and the License FAQ.

The court declined to provide additional clarification about how many steps were needed to reach the License Terms. It explained that the earlier order already described the links between the account-creation page, the Service Terms, and the License Terms, and had found that the incorporation of the License Terms in the Service Terms gave reasonably conspicuous notice.

Laatz sought clarification about the locations of the License FAQ links on the Shop Page. The court found that its prior description of the link location was an oversight and amended the order to identify two links to the License FAQ: one near the top of the page under language about commercial use, and another in a box on the right side of the page labeled “Standard” next to “Licenses Offered.”

The court also reconsidered its earlier statement that Laatz had not shown the defendants’ assent to terms appearing directly on the Shop Page. Because the defendants stated that they did not contest assent to those terms, the court clarified that there was no genuine dispute of material fact about the defendants’ assent to the terms facially appearing on the Shop Page. That clarification did not establish assent to the separate License FAQ.

The court rejected reconsideration of its conclusion about the License FAQ. It reasoned that a purchaser did not have to click either FAQ link to make a purchase, the Shop Page language did not expressly incorporate the FAQ, and at least the “Standard” hyperlink was not reasonably conspicuous. The court therefore continued to hold that the defendants’ assent to the License FAQ could not be determined as a matter of law.

Disposition

Judge Beth Labson Freeman ordered that the defendants’ motion for clarification was granted, the plaintiff’s motion for clarification was granted, and the plaintiff’s motion for reconsideration was granted with respect to the defendants’ assent to the Shop Page terms and the location of the License FAQ links. The court declined to change its holding that the defendants’ assent to the License FAQ could not be determined as a matter of law. The court ordered an amended partial-summary-judgment order reflecting these changes.