General Steel Domestic Sales, LLC v. Chumley (129 F. Supp. 3d 1158, 2015)

OPINION AND ORDER GRANTING IN PART AND DENYING IN PART MOTIONS FOR SUMMARY JUDGMENT

Marcia S. Krieger, Chief United States District Judge

THIS MATTER comes before the Court on the Objections of Defendants Atlantic Building Systems, Inc. and Mr. Chumley (collectively, “Armstrong”) (# 336) to the Magistrate Judge’s July 30, 2014 Minute Order (# 306) denying, in part, Armstrong’s Motions to Compel (# 212, 226), the Plaintiffs (“General”) response (# 365), and Armstrong’s reply (# 372); General’s Motion for Summary Judgment (# 486, 490), Armstrong’s response (# 495, 498), and General’s reply (# 507, 509); Armstrong’s Motion for Summary Judgment (# 488), General’s response (# 493), and Armstrong’s reply (# 508); and General’s Motion to Restrict Access (# 516).

FACTS

The Court briefly summarizes the pertinent facts here and elaborates as appropriate in its analysis.

According to the Amended Complaint (# 101), General is a company engaged in the sale and distribution of prefabricated steel .buildings. It briefly employed Defendant. Ethan Chumley, but terminated his employment • in July 2005. Mr. Chumley then founded Defendant Atlantic Building Systems, Inc., a business that also engages in the sale and distribution of prefabricated steel buildings in direct competition with General.

In June 2011, Mr. Chumley purchased the internet domain name generalsteelscam.com, and began hosting a website on it that, General contends, contained false and defamatory material directed at . General and its employees. (The website is registered overseas through Defendants PRQ and its principal, Mr. Swartholm, although General contends that Mr. Chumley maintains control over it.) General filed a complaint with the international agency that oversees domain name disputes and was successful in securing a ruling that required Mr. Chumley to turn over the generalsteelscam.com site to General. Mr. Chumley then registered a new domain, steelbuildingcomplaints.com, which General contends repeats the defamatory content that the predecessor website did.

Mr. Chumley promotes steelbuildingcomplaints.com through a process known as “back-linking.” In essence, he (or, more accurately, his agents) creates hundreds or thousands of placeholder websites that consist primarily of links, containing variations on the name “General Steel,” all of which link back to steelbuildingcomplaints.com or to web pages belonging to Armstrong. The .practice of back-linking is designed to manipulate the page-ranking algorithms of search websites such as Google and Bing in order to increase the prominence that the steelbuildingcomplaints.com website will have in search results when a user searches using the terms “General Steel” or its variants. (The practice is also known as “Search Engine Optimization” or “SEO.”) General contends that the prominent placement of steelbuildingcomplaints.com in search results for “General Steel” operates to discourage potential General customers; Mr. Chumley also-allegedly purchases advertising space from search companies, so that user searches for “General Steel” or its variants result in the display of ads for Armstrong.

In December 2012, Mr. Chumley allegedly began calling General’s customers, purporting to be an investigator with the Colorado Attorney-.General’s Office, inviting the customers to file complaints against General. Mr. Chumley also allegr. edly sent letters to General’s customers from the “Consumer Advocacy-Alliance^— General Steel Investigation Unit,” a fictitious entity, inviting customers to file claims or complaints against General.

Based on these allegations, General asserts six claims: (i) false advertising under the Lanham Act, 15 U.S.C. § 1125(a)(1)(B) against the Defendants; (ii) violation of the Anti-Cybersquatting Consumer Protection Act, 15 U.S.C. § 1125(d), against Armstrong, relating to the registration and use of the generalsteelscarmconTwebsite; (iii) common-law libel against Armstrong; (iv) unjust enrichment against Armstrong; (v) civil conspiracy' against Armstrong; and (vi) misappropriation of trade secrets, in violation of C.R.S. § 7-4-101 et seq. against Armstrong, relating to these Defendants acquiring and using General’s “valuable customer information” and “customer lists and/or databases.”

Armstrong filed an Answer (# 117) in which it asserted counterclaims against General and third-party claims against Jeffrey Knight, General’s principal. Armstrong alleges that General maintains a network of websites containing “blatantly false and misleading advertisements, stories, testimonials” and other materials promoting General, including false representations that General (and its subsidiaries) actually manufacture steel buildings, that General was founded in 1928 (rather than in 1995, as Armstrong contends), that it manufactures and supplies steel to the U.S. military and auto industry, and so on. (Armstrong contends that, in doing so, General is appropriating the history-.and corporate identity of General Steel Industries, Inc., a longstanding-but-unrelated entity.) Armstrong contends that, through these false representations, General induces customers to patronize it instead .of its competitors. Armstrong also alleges that General’s own website contains false or misleading promotional information, including references to it repeatedly receiving “Best In the Industry Awards” that-do not actually exist, or falsely identifying prominent companies as being General’s customers.

Armstrong also alleges that General' has misappropriated Armstrong’s trademarked logo. In certain electronic brochures, General includes á modified version of Armstrong’s logo, replacing the phrase “Armstrong Steel” with the phrase “Fraudulent Steel.” Armstrong contends" that General also uses Armstrong’s mark on its various affiliated websites, siich as in advertisements displaying Armstrong’s logo and reading “buy an Armstrong Steel building!”; in actuality, these advertisements, when clicked, redirect the user to General’s website. (Armstrong also alleges that it also holds a copyright on the logo, and that General’s use of the logo also constitutes copyright infringement.)

Armstrong asserts two claims: (i) copyright infringement, in violation of 17 U.S.C. § 501 et seq., against both General and Mr. Knight; and (ii) false advertising, in violation of 15 U.S.C. § 1125(a)(1)(B), against both General and Mr. Knight.

General (# 486) and Armstrong (# 488) both seek summary judgment on the claims asserted against them. The Court will address the specific arguments raised in those motions more completely below. Separately, there appears to be an outstanding discovery dispute, in which Armstrong filed Objections (# 336) pursuant to Fed. R. Civ. P. 72(a) to an order by the Magistrate Judge denying Armstrong’s motions to compel (# 212, 213, 226) responses to certain interrogatories.

ANALYSIS

A. Discovery issue

The Court begins with Armstrong’s Objections to the Magistrate Judge’s ruling. At issue are three interrogatories posed by Armstrong to General: (i) “Interrogatory 2,”' a request for the “names, home address, and home telephone and cell number” of “all individuals employed by General Steel in an administrative or sales position” from 2009 to 2013; (ii) “Interrogatory 10,” a request for the names, address, and telephone number of “every customer who complained about alleged misrepresentations and/or deceptive or fraudulent advertising or practices by General Steel” from 2009 to 2013; and (iii) “Interrogatory 1,” a request that “with respect to the screen shots. disclosed by [Armstrong]” in Armstrong’s own production, that General state whether the “such screen shot was authored and/or posted on the internet either by General Steel or its agents,” that it “state.. .the identification of all letters, facsimiles, and emails between General Steel and its employees regarding such advertising, customer testimonials or blogs”; that it “state...the identification” of the same information as between General and “third parties”; that it “state.. .the identification of any false information or fabricated customer testimonials or blogs with regard to General Steel..., General Steel’s-charitable contributions, industry awards given to General Steel, and the number or identity of General Steel’s current or former customers”; and that it “state., ¡the identification. of all reports” concerning “the traffic and/or number of links from such advertising to [a list of specific websites].”

General refused to answer the interrogatory concerning its employees on grounds of relevance, produced certain records of customer complaints incident to a prior ruling of the Court but opposed producing the remainder as irrelevant and overly burdensome, and opposed the third interrogatory as vague, overbroad, unduly burdensome, and compound.

Armstrong moved to compel (# 212, 213, 226) responses to these interrogatories. The Magistrate Judge heard those motions, among many others, on July 30, 2014 (# 306). According to the transcript of that hearing (# ’259), the Magistrate Judge denied the motions with regard to Interrogatory 1 without hearing any argument from the parties; she merely stated “I think it’s way overbroad. I’m not going to have the plaintiffs going through 9,419 pages looking at stuff that’s clearly irrelevant to respond to it'. So that is — that’s denied oh the fact that it’s overbroad.” Similarly," as to Interrogatories 2 and 10, the Magistrate Judge denied the motions without hearing argument, simply stating “General" Steel’s objections are sustained on all of the other issues that were raised. I think [these] interrogatories... are' ' uniformly" over-broad, irrelevant, and a blatant fishing expedition to obtain information about a competitor for purposes unrelated to the case.” Armstrong then filed the instant Objections (# 336) to that ruling.

Rulings on non-dispositive issues by a Magistrate Judge are reviewed by this Court pursuant to Fed. R. Civ. P. 72(a), and will be reversed only if they are “clearly erroneous or contrary to law.” 28 U.S.C. § 636(b)(1)(A); Hutchinson v. Pfeil, 105 F.3d 562, 566 (10th Cir.1997); Ariza v. U.S. West Communications, Inc., 167 F.R.D. 131, 133 (D.Colo.1996). Accordingly, Armstrong’s Objections will be overruled unless the Court finds that the Magistrate Judge abused her discretion or, if after viewing the record as a whole, the Court is left with a “definite and firm conviction that a mistake has been made.” Ariza, 167 F.R.D. at 133, citing Ocelot Oil Corp. v. Sparrow Indus., 847 F.2d 1458, 1464 (10th Cir.1988).

The Court finds no clear error or incorrect" application of law in the Magistrate Judge’s ruling. It agrees with the Magistrate Judge that Armstrong’s request in Interrogatory 2 for the names, addresses, and phone numbers of all of General’s sales and administrative employees is indeed overbroad and a “fishing expedition.” Armstrong argues that it “could contact former employees informally to determine whether they had any knowledge or information about” General’s allegedly false statements, or that it could use the list of employees “to refresh a deponent’s mind[ ] about whether there were other employees that might have knowledge about the topics above.” Armstrong is free to inquire of General’s witnesses about the identities of other employees at General who might have knowledge of particular statements by General, but a wholesale request for the identities of all of General’s employees in certain categories, simply in the hopes that interviewing them might lead to additional discoveries, is indeed an over-broad request properly characterized by the Magistrate Judge as a fishing expedition.

Interrogatory 10 presents a somewhat closer question. Armstrong requested information about, customers who complained to General about “alleged misrepresentations and/or deceptive or fraudulent advertising or practices” by General over a certain time frame (along with certain subsidiary information relating to each complaint). Facially, this request might be pertinent to a claim by Armstrong that General has engaged in false advertising by representing on its website that it has a history of' “100% customer satisfaction” and “zero unresolved customer issues.” However Interrogatory 10 is limited to specific types of complaints that it seeks — only complaints in which a customer has complained to General ábout “misrepresentations” or “fraudulent advertising” by'General. In a previous discovery request, Armstrong already obtained discovery of all customers who complained about General increasing prices on customers after entering into a contract with them (and abandoned a request for discovery of more general customer complaints concerning the quality of General’s products). See generally (# 179).

The Court finds that the Magistrate Judge did not err in denying Armstrong’s motion to compel the, information request: ed in Interrogatory 10. Armstrong’s request is predicated on General’s advertising that it has a history of “100% customer satisfaction” and “zero unresolved customer issues.” The- most reasonable readings of those advertising messages is that General is asserting that its customers are completely satisfied with the products and services that General provides, not a representation that General’s customers are satisfied with General’s advertising.- (Arguably, there may be customers who purchased a particular product or service from' General because'of General’s advertising, only to be dissatisfied with the result, but once again, that dissatisfaction would ultimately trace back to the quality of General’s products or services.) Thus, the universe of customer complaints that would disprove General’s promotion of complete customer satisfaction would be comprised primarily of customers who were dissatisfied with the products and services General delivered, not customers whose sole basis of complaint to General was about its advertising. In such circumstance^, it would- not be inappropriate for the .Magistrate Judge to conclude that the probative value of customer complaints about advertising have relatively little probative value. The record as a whole reflects that General had previously established that complying with a request of this type would require it to search more than 2,000 customer files, most of which are kept solely in paper form. Under the circumstances, where the probative value of the requested information is fairly low and the burden of producing it was significant, it was not inappropriate for the Magistrate Judge to deny the motion to compel a response to such an interrogatory.

Finally, the Court agrees with the Magistrate Judge that no response to Interrogatory 1 was required. Besides being clearly compound (requests for information about General’s charitable 'contributions have no apparent connection to requests about General’s web traffic data, which has no apparent connection to the identity of the author of various web pages, among others) and occasionally incomprehensible, the interrogatory is overbroad.; It is apparently undisputed that .the “screen shots” that the interrogatory inquires about consists of nearly 10,000 pages containing approximately 14,000 individual articles or blog posts. Although it may be appropriate for Armstrong to inquire about the authorship of particular documents that contain particular false representations allegedly made by or on behalf of General, it was appropriate for the Magistrate Judge to conclude that some 10,000 requests of this type were overbroad. For example, in Armstrong’s reply in support of their Objections, it tenders a 7-page sample of the articles and blog posts that are the subject of Interrogatory 1. Of the six articles shown, four are highlighted to indicate that the primary objectionable content of the article is a reference to General being a “manufacturer” of steel buildings. If Armstrong’s intention is to show that General falsely advertised itself-as a “manufacturer” of steel buildings, it might be appropriate for it to select several examples of General doing so. and inquire about the authorship, etc. of those exemplars; it is a different matter to require General to identify the author of more than 10,000 separate articles, many of which are likely to be effectively identical. Such a request is clearly overbroad. Although the Magistrate Judge could have exercised her discretion to require Armstrong to cull its request to a manageable size, her decision to deny the motion to compel outright on the grounds of overbreadth and burdensomeness was not an abuse of her discretion.

Accordingly, the Court overrules Armstrong’s Objections and affirms the Magistrate Judge’s denial of its motions to compel.

B. Summary judgment motions

1. Standard of review

Rule 56 of the Federal Rules' of Civil Procedure facilitates the entry of a judgment only if no trial is necessary. See White v. York Intern. Corp., 45 F.3d 357, 360 (10th Cir.1995). Summary adjudication is authorized when there is no genuine dispute as to any material fact and a party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). Substantive law governs what facts are material and what issués must be determined. It also specifies the elements that must be proved for a given claim or defense, sets the standard of proof and identifies the party with the burden of proof. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Kaiser-Francis Oil Co. v. Producers Gas Co., 870 F.2d 563, 565 (10th Cir.1989). A factual dispute is “gehuine” and summary judgment is precluded if the evidence presented in support of and opposition to the motion is so contradictory that, if presented at trial, a judgment could enter for either party. See Anderson, 477 U.S. at 248, 106 S.Ct. 2505. When considering a summary judgment motion, a court views all evidence in the light most favorable to the non-moving party, thereby favoring the right to a trial. See Garrett v. Hewlett-Packard Co., 305 F.3d 1210, 1213 (10th Cir.2002).

If the movant has the burden of proof on a claim or defense,'the movant must establish every element of its claim or defense by sufficient, competent evidence. See Fed. R. Civ. P. 56(c)(1)(A). Once the moving party has met its burden, to avoid summary judgment the responding party must present sufficient, competent, contradictory evidence to establish a genuine factual dispute. See Bacchus Indus., Inc. v. Arvin Indus., Inc., 939 F.2d 887, 891 (10th Cir.1991); Perry v. Woodward, 199 F.3d 1126, 1131 (10th Cir.1999). If there is a genuine dispute as to a material fact, a trial is required. If there is no genuine dispute as to any material fact, no trial is required. The court then applies the law to the undisputed facts and enters judgment.

If the moving party does not have the burden of proof at trial, it must point to an absence of. sufficient evidence to establish the claim or defense that the nonmovant is obligated to prove.. If the respondent comes forward with sufficient competent evidence to establish a prima facie claim or defense, a trial is required. If the respondent fails to produce sufficient competent evidence to establish its claim or defense, then the movant is entitled to judgment as a matter of law. See Celotex Corp. v. Catrett, 477 U,S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).

2. General’s motion

The Court begins with General’s motion, which seeks summary judgment on Armstrong’s counterclaims.

a. False advertising

Armstrong’s counterclaim against General for false advertising is asserted under the Lanham Act, 15 U.S.C. § 1125(a)(1)(B). That statute prohibits “any person who, on or in connection with any goods or services.. ;uses in commerce any.. .false or misleading description of fact.. .which in commercial advertising of promotion misrepresents the nature, characteristics, qualities or geographic origin of his or her or. another, person’s goods, services, or commercial activities.” Armstrong contends, that General made numerous false representations of fact in numerous contexts: (i) that it made thousands of “blog posts” or published content on internet web sites falsely, representing that it was .a “manufacturer” of steel buildings, that it has been in existence for more than 50 years, that it supplied steel to the U.S. military during World War II, and so on; (ii) that it sponsored “pay-per-click” advertisements on search engines that stated that it was a manufacturer of steel buildings; (iii) that it created internet “directory listings” that identify it as a manufacturer of steel buildings; (iv) that it made various false statements on its own website to the effect that it had a “history of 100% customer satisfaction” and “zero unresolved customer issues”.and published customer testimonials containing false material; (v) that it published an electronic “brochure” entitled “Fraudulent Steel” that....; and (vi) that its customer representatives made various false representations about General and Armstrong.

To establish a Lanhám' Act claim such as this, Armstrong must show: (i) that General made materially false or misleading representations of fact; (ii) in connection with its commercial advertising; (iii) in commerce; (iv) that such representations were likely to cause confusion or mistake as to the characteristics of -its goods or services; and (v) that such use caused injury to Armstrong. World Wide Ass’n of Specialty Programs v. Pure, Inc., 450 F.3d 1132, 1140 (10th Cir.2006).

(i) Agency

It is undisputed that the content comprising the allegedly false “blog posts” and “pay-per-click” ads were not created by General itself. Rather, General contracted with an entity called JEMSU (or sometimes “Denver SEO”) by which JEM-SU performed “search engine optimization” designed to heighten General’s ranking in internet search engines like Google and Bing. “Search engine optimization” services generally involve creation of hundreds or thousands of websites, each containing numerous short pieces of written content, generally no more than a paragraph or two, that link back to the website being promoted. Here, JEMSU’s employees (or contractors it hires) wrote the pieces, each containing one or more links that point back to,General’s website. The objective is for -this network of websites to appear to the algorithms used by search engines to be legitimate, independent sources of content about General. In this case, it is undisputed that, among the thousands of articles published by JEMSU on General’s behalf are many that, make a variety of false statements about General — that it manufactures steel, steel buildings, and products like automobile rims (when, in actuality, it manufactures nothing and only serves as a seller of others’ products), that it has storied history dating back more than 50 years (when, in fact, that history belongs to a different entity with a similar name), and so on.

General argues that JEMSU operated as an independent contractor, creating and publishing the content without any control or direction from General. Thus, General argues, it cannot be held liable for any false representations contained in content published by JEMSU.

As a general rule, a master is subject to liability for torts committed by its servant if the servant is acting in the scope of its designated authority; by contrast, a master is not typically liable for tortious acts committed by its servant if the servant- is acting outside the scope of authority. See Restatement (Second) of Agency, § 219: General argues that JEMSU was not’ its agent/ servant, but rather was an independent contractor. In determining whether a person or entity is a servant' or independent contractor, the Court considers numerous factors, including: (i) the extent of control which the master may exercise over the work; (ii) whether the person performing the work is engaged in a distinct occupation; and (iii) whether the work, is typically done under direction or completed independently, among several others. Restatement (Second) of Agency, § 220. The right of the master to control is the most important of these factors and is often determinative. Id. The Restatement explains that a right to control sufficient to create a master-servant relation,can often appear attenuated, and may even arise where there is “an understanding that the employer shall not exercise control” over the other party. It uses the example of the employer of -a full-time cook — “the full-time cook is’ regarded as a servant although it is understood that the employer will exercise no control over the cooking”. Id.; also see also Western Fire Truck, Inc. v. Emergency One, Inc., 134 P.3d 570, 575 (Colo.App.2006) (critical inquiry is whether the right to control exists, not whether that right is actually exercised). Importantly, the question of whether an agency relationship (i.e. master-servant) exists between two parties is usually a question of fact). The Court finds that, here, there is a genuine dispute of fact as to whether JEMSU was acting as an agent of General when it published the allegedly false content on General’s behalf.

Turning first to the question of control, General contends that it did not (and, more importantly, could not) attempt to control how JEMSU performed the creation and publication of the web content, nor that it had control over the contents of the material JEMSU published. General alleges that, beyond giving JEMSU instructions about not identifying General as a “manufacturer” in the written content, it deferred entirely to JEMSU’s expertise and exercised no control over how JEMSU proceeded to perform the work. However, there is evidence that General had both the ability to exercise significant control over and direct JEMSU’s activities, and that it actually did so. In a deposition, JEMSU’s principal, Troy Olson, made it clear that if asked by General, JEMSU “could, .have put prohibitions on what [JEMSU] could publish about them.” Presented with the hypothetical of General having instructed that “[when]' you’re 'creating content.. .make sure you don’t call us a manufacturer” and asked whether “that would have been something that you all would have then tried to follow,” Mr. Olson said ‘Tes.” Mr. Olson acknowledges that it currently submits the content it intends to post on General’s behalf to General for approval prior to posting, and that General could have but did request such review previously. Mr. Olson also acknowledges that, after October 2013 (when Armstrong filed the counterclaims herein), General requested that JEMSU remove certain content it had posted, on General’s behalf and that JEMSU did so. The deposition of Travis McCain, an official of General, corroborates that General expressly directed the actions of JEMSU on at least one occasion: after General discovered that a JEMSU employee had written false content about General mantifacturing “steel rims” for vehicles, Mr. -McCain “told [JEMSU] that they needed' to evaluate everything that' [the JEMSU employee] had written. I told them that they neede,d to comb through all the content they’ve generated; and if they find anything like this, it needs to be rewritten to be content specific to the industry.”

In many ways, JEMSU is analogous to the example of the full-time cook used in the example found in the Restatement. As with the master employing-the cook, General hired JEMSU to achieve a certain goal (preparing food; raising General’s search engine profile). General may not have dictated the moment-to-moment or day-to-day activities of JEMSU, just as the master may not have directed the day-to-day activities of the cook, but both the master and General retained the authority to direct the charge. Indeed, there is evidence that General gave specific directions to JEMSU as to content. Accordingly, there is a genuine dispute of - fact as to whether JEMSU was acting as General’s agent, rather than- as an independent contractor, when publishing the false advertisements about General.

There is also a genuine dispute of fact as to whether General granted JEMSU the authority to publish the false content. General contends that, when it retained JEM-SU, Mr. McCain told JEMSU that “you could write anything that’s truthful, [I] told them they weren’t allowed to refer to General Steel as a manufacturer or a fabricator of buildings in any way, shape, or form. But other than that, they were the experts and have at it.” Sean Hakes, who helped found JEMSU but-who had left and was serving only as a consultant to it at the relevant time period, testified that he recalled Mr. McCain instructing JEMSU that it could not refer to General as a “manufacturer” of sfeel buildings, but that General never informed them that, JEMSU should not refer to General as a manufacturer, or otherwise placed any limitations on the content JEMSU would create (at least until October 2013, when the counterclaims were filed). Asked at his deposition “did General Steel tell you there was anything it did not want you to do?,” Mr. Olson answered “Not to my recollection.” Later, he was again asked “did anyone before October 2013 tell you that General Steel Was not allowed to say- it was a manufacturer of steel buildings?;” and Mr. Olson responded “After a, you know, search of my e-mail and thinking back, I don’t recollect at all.” He confirmed that “the first time [he] learned that it may be a problem for [his] content- creators to say General Steel was a manufacturer” was “in October of 2013.”

Taken in the light most favorable to Armstrong, Mr. Olson’s testimony suggests that General retained JEMSU to post content- for General’s - benefit, that General had the ability to dictate what types of content would and would not be acceptable to post, but that General granted JEMSU broad authority.to post content on its behalf without giving JEMSU-any instructions or stating any, limitations on what JEMSU could write — that General simply told JEMSU to “have at it.” By authorizing JEMSU to post content about General without any boundaries or control, General effectively authorized JEMSU to publish whatever JEMSU desired. Thus, there is a genuine dispute of fact as to whether JEMSU’s posting of false information about General was an act undertaken by JEMSU within the scope of the authority delegated to it by General.

Accordingly, Genéral is not entitled to summary judgment based oh lack of agency-

(ii). The false representations as “advertisements”

General argues that the false, statements about it published by JEMSU cannot constitute “false advertising” under the Lanham Act because the content that was published was never intended to be read by humans.

To constitute “commercial advertising or promotion” under the Lanham Act, a factual representation must have four characteristics: (i) it must be “commercial speech”; (ii) it must be made by (or on behalf of) a defendant who is in commercial competition with the party asserting the Lanham Act violation; (iii) it must be “for the purposes of influencing consumers to buy defendant’s goods or services” (whether part of a “classic advertising campaign” or in “more informal types of ‘promotion’”); and (iv) it must.be disseminated sufficiently to the relevant purchasing, public to constitute advertising or promotion (within that industry. Proctor & Gamble Co. v. Haugen, 222 F.3d 1262, 1273-74 (10th Cir.2000).

General contends that the bits of content published by JEMSU fail to meet the third and fourth elements of the test. It argues that the content was not published “for the purpose of influencing customers” and was “not intended for human consumption” but rather was intended only to influence algorithms used by search engines.

The Court finds this argument unpersuasive. The content published by JEMSU is not arbitrary or utterly irrelevant to General’s operations — for example, it does not consist of links to General’s website embedded in randomly-generated sentences, paragraphs from “Moby Dick,” or even portions of generic, neutrally? phrased encyclopedia articles about the history and manufacture of steel. The. various examples in the record reveal, at least in most circumstances, that the authors purposefully created materials that were intended to appear as legitimate news articles, reports, or testimonials about General and that frequently contained praise, for General. For example:

• “General steel has you covered”: “I wish I still had a picture of the fifty year old grain silo that general steel [linked] built for my grand daddy back when he was running the family farm. You could put that picture up to a picture of a grain silo built today and I tell ya, you’d be hard pressed to find a difference between the two... Most people don’t believe me but I tell them that general steel just knows their stuff and sometimes that is all you need to have a quality product that lasts and lasts...,.”

• “A big thank you to General Steel”: “I am the CEO of the automotive manufactaring company and I would like to thank General Steel [linked] profusely for all their help.-It has been'a long couple of years in the auto industry as there have been plant shut downs all .around us... Luckily General Steel [linked] approached us with a new very cheap type of steel that could be used safely in cars' — After a few field tests we realized the technologies {sic} potential- and immediately jumped at the opportunity....”

• “New Rims”: “I just recently bought myself some' new rims from General Steel [linked] and I love how they look. I could not have asked for a better quality rim for my truck. Iam glad I went by General Steel [linked] and saw that they had a good deal on ritas becausé now I think my truck looks the best out Of any I have seen.....”

• “Is it Seaworthy?”: “I am the captain of a recently built ship and I believe that 'it will be one of the prettiest ships in the United States Navy. Its hull was built with General Steel [linked] and is strong as it could possibly be. This is important because if we ever go into battle, I want my ship to be the best out there....I am going to try as hard as I possibly can to make myself into a better officer. The fact that our ship’s hull is made from General Steel [linked] really helps my confidence out because I know that we are not going to sink.”

• “Growing with Companies Like General Steel”: “When the general public hears about steel buildings from General Steel [linked] they often think of. manufacturing plants or buildings used for agricultural purposes.... Interestingly, steel buildings are now being used more and more as aircraft hangars.at smaller airports across the country.. .If you are in charge of a small, regional airport and are interested in a steel building, contact General Steel today to schedule a meeting with one of their advanced consultants. You will be able to go through all of the details to ensure that you are getting the most efficient services, no matter what the case might be for you.”

These articles typically promote General as a business and are designed to engender positive associations between its name and quality products and services discussed by the authors. Just because the articles .were drafted to influence algorithms doesn’t end the inquiry. The ultimate purpose of the testimonials was to influence the algorithms to reflect the quantity and quality of favorable comments. for the benefit of the ultimate consumer. This is “promotional” information, albeit filtered by electronic means. Conceptually, it could be “advertising” sufficient to support a Lanham Act claim. The question becomes whether it reached the ultimate consumer.

This is a more difficult question. Is there evidence that the false promotional information was disseminated to the consuming public in sufficient degree that the industry would consider such information to be “advertising.” Haugen, 222 F.3d at 1273-74. General asserts — and Armstrong does not dispute — that General/JEMSU never intended any human being to read the material JEMSU posted. According to General, the intended “audience” for JEM-SU’s postings consisted entirely of automated search engine ranking algorithms. Mr. Olson testified that an “incidental” amount of internet traffic accessed some of the JEMSU pages, but the record does not disclose who these individuals were, how many there were, or what their purpose in visiting the JEMSU pages was.

General cites to Sports Unlimited, Inc. v. Lankford Enterprises, Inc., 275 F.3d 996, 1003-04 (10th Cir.2002). There, the plaintiff and defendant both sold and installed gym floors. The plaintiff installed a gym floor for a customer, but the customer became unsatisfied with the product and contacted the defendant with certain questions. At some' point in time, the defendant created a' document containing' a list of some of the plaintiffs customers' and (allegedly false) complaints by those customers. The defendant provided copies of the document to the contractor and architect on the project for the customer. The customer eventually terminated its contract with the plaintiff and retained the defendant to replace the floor. The plaintiff sued the defendant for false advertising under the Lanham Act, but the trial court granted summary judgment to the defendant, finding that the dissemination of the document to two individuals (or, arguably, as many as seven) was insufficient, as a matter of law, to constitute “advertising or promotion in the industry” under the Act, particularly when there was evidence that the plaintiff bid for as many as 150 jobs per year. Id. The 10th Circuit affirmed, explaining that although advertising in the form of “informal types of promotion” could support a Lanham Act claim and that “the extent of distribution necessary, . .may be an elastic factor, so that a relatively modest amount of activity may be sufficient in the context of a particular case,” a plaintiff must nevertheless show “some level of public dissemination of the information.” Id. (emphasis in original). The court concluded that distribution to “two persons associated with the same project” (a project, it noted, had already been awarded to the -plaintiff in the first instance), “simply does not, within the meaning of the Act, amount to commercial advertising or promotion.” Id.

This Court finds Sports Unlimited instructive. It makes clear that to constitute an actionable advertising or promotional campaign, a, dissemination of information must reach some numerically-significant quantity of actual or potential customers of the parties’ products. This record is vague as to how many human beings might have encountered the material published by JEMSU. Mr. Olson describes that number as “incidental” and Armstrong does not clarify. Moreover, it is by no means clear that any of these “incidental” visitors were actual or potential customers of General’s or Armstrong’s products, or what information they actually reviewed. It is possible that the visitors reached the pages as a result of an internet search for information on steel buildings, but it is just as plausible that that they had no interest in steel buildings and arrived at the pages due to a coincidental search — say, for information about navy battleships or the whereabouts of a high school classmate with the same name as a JEMSU article’s ostensible author — or due to a typographical error. Armstrong provides no additional insight into the nature or quantity of the traffic reaching the JEMSU pages arid thus, any conclusions the Court could reach about those matters would be sheer speculation.

Armstrong approaches the problem from a different perspective: it argues that, when a false advertising plaintiff demonstrates that a defendant’s advertisement is “literally false” (as opposed to falsely implying a fact), courts do not require the plaintiff to show that the advertisement has an actual or potentially-deceptive effect on the consuming public, instead presuming that deception has occurred. Citing Zoller Laboratories, LLC v. NBTY, Inc., 111 Fed.Appx. 978, 982 (10th Cir.2004), quoting Scotts Co. v. United Indus. Corp., 315 F.3d 264, 273 (4th Cir.2002). This, is a generally-eorrect statement of the law, but' it begs the question of whether the web content posted by JEMSU is “advertising”. As cases like Sports Unlimited suggest, publication of information does not become “advertising” until it reaches an audience of sufficient size. Until that point, it is not “advertising” and it fruitless to discuss whether it has a deceptive effect. Because Armstrong has not come forward with evidence that shows that the material posted by JEMSU reached sufficient numbers of customers of steel buildings to permit the conclusion that it was “advertising,” General is entitled to summary judgment on the false advertising claims premised on the JEMSU “blog posts.”

(iii) Pay-per-click advertisements

In- addition to hiring JEMSU to perform search engine optimization services, General’ also retained JEMSU to handle certain -types of more direct advertising. Specifically, General, through JEMSU, purchased certain “pay-per-click” advertising from search providers. It appears that, when users entered certain search terms on certain search providers, an ad for General would' appear along with the search results, reading “The #1 Steel Building Manufacturer! Call Toll Free: [phone number].” It is undisputed that General is not a “steel building manufacturer,” meaning that this advertisement is false.

General argues only that it cannot be liable for the false pay-per-click advertisements because they were created by JEM-SU without General’s knowledge, control, or authorization. The Court need not repeat the analysis above; it is sufficient.to observe that Mr. McCain’s own deposition testimony seems to suggest that he, on behalf of . General, reviewed. the text of these advertisements:

Q: Do you review any of the pay-per-click ads that JEMSU is running on your behalf?

A: Yes.

Q: How often do you review those?

A: Whenever they change.

Q: Who creates the contents for your pay-per-click ads?

A: What do you mean by content?

■ Q: The ad text.

A: JEMSU.

Q: And you approve it?

A: Yes.

Although General may contend that Mr. McCain is mistaken or unclear or that this testimony by him contradicts other testimony he gives, the Court must construe it in the light most favorable to Armstrong. Thus, the Court finds that there is evidence in the record that Mr. McCain, on behalf of General, reviewed and approved the text of the. pay-per-click advertisements that JEMSU was submitting on General’s behalf, presumably including those that falsely identified General as a “manufacturer” of steel buildings. Accordingly, a, Lanham. Act false, advertising claim premisedion these ads may proceed.

(iv) General’s own statements

In addition to JEMSU’s efforts to market General,' General promoted itself on its own website with content that Armstrong contends is false. Specifically, Armstrong cites to: (i) a graphic reading “Awarded Best in the Industry 2007 — present,” when, in fact, no such award exists; (ii) a statement that General has a “customer service track record of zero unresolved customer issues since the company was established”; and (iii) a statement that “No other steel building company can compete with our- company’s history of 100% customer satisfaction.” As to the latter two statements, Armstrong points out that General has been the subject of numerous complaints to the Better Business Bureau and has been sued by customers some 20 times.

General contends that these statements are either mere puffery or are so vague and non-specific that they cannot be considered “false” — in other words, without a generally-agreed upon definition of what “customer satisfaction” means or to whose satisfaction a customer complaint must be “resolved,” one cannot affirmatively say that the representations are true or false.

“Puffery” consists of “exaggerated, blustering, and boasting statements] upon which no reasonable buyer would be justified in relying.” Hall v. Bed Bath, and Beyond, Inc., 705 F.3d 1357, 1368 (Fed.Cir.2013). The distinction between non-actionable puffing and actionable false advertising is “whether a reasonably buyer would take the representation at face value.” Id. On the other hand,,, “specific and measurable claims and claims that may be literally true or false” are not puffery and can be considered actionable. F.T.C. v. Direct Marketing Concepts, Inc., 624 F.3d 1, 11-12 (1st Cir.2010).

Here, the Court agrees with General that the boast “Awarded Best in the Industry” is mere puffery, as no reasonable consumer would rely on such an assertion without first inquiring further into the nature and credibility of the entity granting the award. See e.g. Hackett v. Feeney, 2011 WL 4007531 (D.Nev.2011) (a boast that a particular theatrical performance was “Voted #1 Best Show in Vegas,” when no such “vote” ever occurred, was mere puffery).

But the Court agrees with Armstrong that the statements “zero unresolved customer issues” and “[a]-history of 100% customer satisfaction” are specific, measurable claims that can be evaluated as true or false. They are not vague statements that elude quantification — e.g. “unparalleled customer satisfaction” or “complete customer satisfaction.” Rather, they are statements of absolutes whose truth can be verified simply by. ascertaining whether there are examples to the contrary: even a small number of dissatisfied customers or unresolved customer issues would suffice to demonstrate General’s statement to be untrue. General argues that the terms “customer satisfaction” and “unresolved customer issues” can be parsed and teased in various ways to make its statements true: that General considered customer complaints ’“resolved” even if the customer did not, or that, a customer can be “satisfied” in some respects even if infuriated in others. Such construction does violence to the ordinary meanings of those terms as they would be understood by reasonable consumers. See generally Pernod Ricard USA, LLC v. Bacardi U.S.A., Inc., 653 F.3d 241, 250-51 (3d Cir.2011) (“there is and must be a point at which language is used plainly enough that thé question ceases to be “what does this mean’ and becomes instead ‘now that it is clear what this means, what is the legal consequence’ ”). A consumer encountering the phrase “a history of 100% customer satisfaction” in General’s advertising would understand that phrase to mean that General endeavored to ensure that every customer of General was satisfied with every aspect of the product or service (or, at the very least, that every customer was, on balance, satisfied with a transaction as a whole even if the customer may have harbored some dissatisfaction with some aspect of it); a consumer encountering the phrase “zero unresolved customer issues” would understand that phrase to suggest that any customer encountering a problem with General’s performance was ultimately able to reach a'mutually-acceptable resolution of that issue with General.

Because Armstrong has come forward with evidence that these statements are false — that certain customers never resolved their complaints with General and that many customers sued General over unresolved issues — the Court denies General’s motion for summary judgment on the false advertising claim as it relates to these assertions.

(v) Damages

Finally, General argues that Armstrong cannot show that any specific customers had their purchasing decisions influenced by any of 'General’s false advertising. To establish the requisite element of causation and damages in" a false advertising'claim under the Lanhám Act, a plaintiff must show that the false advertising caused consumers “to withhold trade from the plaintiff.” Lexmark Intern., Inc. v. Static Control Components, Inc., — U.S. -, 134 S.Ct. 1377, 1391, 188 L.Ed.2d 392 (2014).

Once again, Armstrong, tacitly concedes that it .cannot demonstrate any actual damages it suffered that can be traced to General’s false advertising. Instead,.Armstrong invokes a presumption of injury that can arise in certain circumstances.

Courts have sometimes approved a presumption of injury and causation in false advertising cases “upon a finding that the defendant deliberately deceived the public.” Porous Media Corp v. Pall Corp., 110 F.3d 1329, 1333 (8th Cir.1997). However, such a presumption applies only where the defendant has engaged in false advertising that expressly compares the defendant’s product to the plaintiff’s; “where a defendant is guilty of misrepresenting' its own product without targeting any other specific product, it is erroneous to apply a rebuttable presumption of harm in favor of a competitor.” Id. at 1334, 1336.

Armstrong argues that the proposition enjoys a broader reach in the 10th Circuit. It quotes Hutchinson v. Pfeil, 211 F.3d 515 (10th Cir.2000), for the proposition that “the presumption is properly limited to circumstances in which injury would indeed likely flow from the defendant’s objectionable statements, i.e., when the defendant has explicitly compared its product to. the plaintiffs or the plaintiff is an obvious competitor with respect to the misrepresented product.” Id. at 522 (emphasis added). This statement from Hutchinson is dicta. The court in Hutchinson found that the plaintiff lacked standing to bring a Lanham Act claim because he was not a competitor of the defendant, and thus, the court was not required to determine whether a presumption of injury was appropriate. Id. (noting that the presumption of injury “does overlap conceptually with the injury prerequisite for standing, and the presumption has been discussed, albeit rarely and unfavorably, in that connection,” and ultimately concluding that “neither of these conditions exists here. Mr. Hutchinson’s standing is deficient precisely because he has ño product in competition with the Pfeils’ painting”) (emphasis in original).

Moreover, the proposition recited in Hutchinson is incomplete. The 10th Circuit there cites to two cases, one of which is Porous, which, as mentioned above, describes the presumption of injury as applying only in circumstances of comparative advertising. The other case cited by Hutchinson is Ortho Pharmaceutical Corp. v. Cosprophar, Inc., 32 F.3d 690, 694 (2d Cir.1994). There, the court explained that “This circuit has adopted a flexible approach toward the showing a Lanham Act plaintiff must make on the injury and causation component of its claim.” It states that a plaintiff “need not demonstrate that it is direct competition with the defendant or that it has definitely lost sales because of the defendant’s advertisements,” but emphasizes that “the likelihood of injury and causation will not be presumed, but must be demonstrated in some manner.” Id. It explains that “the type and quantity of proof required to show injury and causation has varied from one case to another depending on the particular circumstances,” but observed that “we have tended to require a more substantial showing where the plaintiffs products are not obviously in competition with defendant’s products, or the defendant’s advertisements do not draw direct comparison between the two.” Id.

This Court understands the proposition stated in dicta in Hutchinson — that a presumption of injury can be drawn if the plaintiff and defendant are direct competitors regarding the product in question — as allowing a plaintiff who directly competes with a defendant to show an injury to itself with some lesser quantum of proof than a non-competitor might be required to show. However, it is still necessary for the competitor plaintiff to show , some evidence of causation and injury, not to merely rely entirely on a presumption based on competition. See Ortho, 82 F.3d at 694. For example, in Coca-Cola Co. v. Tropicana Products Inc., 690 F.2d 312, 316 (2d Cir.1982), on which Ortho relies, the court repeated the same principles as Ortho, and then explained that, there, “[m]arket studies were used as evidence that some consumers were in fact misled by the advertising in issue. Thus, the market studies supplied the causative link between the advertising and the plaintiffs’ potential lost sales; and thereby indicated a likelihood of 'injury.” See also Merck Eprova AG v. Gnosis S.p.A., 760 F.3d 247, 259-60 (2d Cir.2014) (repeating that in “non-comparative advertising [claims], the injury accrues equally to all competitors” and that “some indication of actual injury and causation would be necessary”).

This Court rejects the notion urged by Armstrong that a Lanham Act plaintiff in direct competition with a defendant can rely entirely on a presumption of injury to' obtain money damages, even when the Advertising in question misrepresented only the defendant’s product. Porous concisely explains why: in such a suit, the “plaintiff may be only one of many competitors, and without proof of causation and specific injury each competitor might receive a windfall unrelated to its own damage.” 110 F.3d at 1336. To hold otherwise would permit all of General’s and Armstrong’s fellow competitors to pile on as well: they, like. Armstrong, would lack any proof whatsoever of actual injury, but would merely rely on their status as competitors to presume that they, too,- were injured by General. Nothing in the “presumption of injury” line of cases can.be read to suggest that the Lanham -Act intends to open the spigot of money damages to all competitors whenever one of their own promulgates a self-promoting advertisement containing a literal falsehood.

Because Armstrong relies exclusively on the presumption of injury, offering nothing mofé to demonstrate any non-speculative harm that it claims to have suffered, it is appropriate to grant summary judgment to General on Armstrong’s Lanham Act counterclaim for false advertising to the extent it seeks money damages.

b. Copyright infringement

Compared to the sprawling false advertising claim, Armstrong’s copyright infringement counterclaim is fairly narrow. Armstrong purports to hold the copyright on its logo, which consists of an image of a shield with, the .words “ARMSTRONG STEEL” emblazoned across it above a yellow four-pointed star, all on a background consisting of a yellow-to-orange gradient. It alleges that General has infringed on that copyright in two respects.

First, General’s website contains a link to a document described by the parties as an “e-brochure.” That document begins with the text” Are you working with the best? Or just another steel company?” and warns that “The internet is home to many companies offering a deal which is too good to be true,” discussing certain unsavory tactics used by unspecified competitors of General. A column along the left hand side of the document reads “IS THIS THE OTHER STEEL COMPANY?” and shows an image of a laptop computer displaying a, shield logo with the words “FRAUDULENT STEEL” emblazoned on it above a yellow four-pointed star, all on an orange background.

The second form of infringement. Armstrong asserts consists of at least one instance where a JEMSU-created blog contained an advertisement reading “Buy an Armstrong Steel Building!,” accompanied by the actual Armstrong “shield” logo, a photograph of a building, and box reading “click here for more information.” It appears' to be undisputed that a reader clicking On this advertisement would be taken to General’s website, not Armstrong’s. Armstrong contends that this use of its shield logo; in either its original or modified form, constitutes copyright infringement in violation of 17 U.S.C. § 501 et seq.

General first argues that, as a matter of law, Armstrong does not actually own the copyright to the logo. This argument, although Convoluted, can be quickly summarized. In or about 2007, Armstrong retained a company called, The Unleaded Group to assist it in creating a logo. Both parties agreed and understood that Armstrong would own the copyright to the finished logo, although the parties never reduced that understanding to writing. After the logo was completed, Armstrong, consistent with the parties’ understanding, submitted the logo for copyright registration in the name of Armstrong, identifying it as a work created for hire. General argues that, for various reasons, copyright in the work vested in its author; The Unleaded Group, and not in Armstrong.

The Court need not attempt to unravel the complex web that is General’s argument or the equally complex web that is Armstrong’s response; instead, it cuts bluntly through both., Assuming, for the moment, that General is correct that The Unleaded Group’s creation of the logo cannot be considered a “work for hire” under 17 U.S.C. § 101(1) or (2), ownership of the copyright in that logo would thus initially vest in its author, The Unleaded Group. 17 U.S.C, § 201(a). However, it is undisputed that Armstrong and The Unleaded Group shared a mutual intention, at the time the logo was created, that The Unleaded Group would assign any rights it had in the logo to Armstrong upon completion of the project and. Armstrong paying The Unleaded Group for the work. As Nancy Clark, The Unleaded Group’s principal explained, “our process [was] you engage me, I do this for you, you pay me, you own it, and I am done with it.” It is undisputed that Armstrong paid The Unleaded Group the amount the parties agreed upon, and thus, there is no reason to believe that The Unleaded Group did not orally transfer the copyright to Armstrong.

Although that assignment was not officially memorialized in writing until recently . (and only in response to General’s motion), nothing in the Copyright Act requires that assignments of rights secured by that Act to be in written form. 17 U.S.C, § 204(a) provides that “a transfer of copyright ownership... is not valid unless an instrument of conveyance, or a note or memorandum of the transfer, is in writing and signed by the owner of the rights conveyed.” However, this provision has been broadly interpreted to permit effective oral assignments of copyrights, so long as the original owner ratifies or confirms that transfer in writing at some later point in time. Barefoot Architect, Inc. v. Bunge, 632 F.3d 822, 827-30 (3d. Cir.2011) (collecting cases). Armstrong and The Unleaded Group executed a Copyright Assignment Agreement on February 26, 2015, which “confirms the previous assignment to Armstrong of all; of. Unleaded’s right, title and interest in [the logo].” This is sufficient to satisfy the statute and validate the effectiveness of the oral assignment from 2007. Accord Barefoot, 632 F.3d at 827 (finding written instrument affirming oral assignment executed nine years after the alleged assignment and four years after the lawsuit at issue was commenced was sufficient).

General argues that Armstrong cannot rely upon a theory that it acquired the copyright in the logo via assignment from The Unleaded Group when the Certificate of Registration for that logo indicates that Armstrong’s rights were secured because the logo was a “work for hire.” Errors in a Certificate of Registration do not invalidate the certificate or the rights secured in the certificated owner absent a showing of intent to defraud and prejudice. In re Napster Copyright Litigation, 191 F.Supp.2d 1087, 1099 (N.D.Ca.2002). General does not attempt to make such a showing.

Accordingly, the Court rejects General’s argument that Armstrong is not the proper owner of the copyright in the shield logo. Thus, the Court turns to General’s remaining arguments.

General argues that its use of the “FRAUDULENT STEEL” logo is protected by the doctrine of “fair use,” because General’s use was for the purpose of “comment and criticism.” 17 U.S.C. § 107. The “fair use” doctrine,permits persons to