District Judge J. Paul Oetken
Lopez owns the stylized HUSTLE trademark, registered in New York, and a federally registered copyright for the Hustle Snapback Design cap bearing the HUSTLE mark. Only Google Inc. remains a defendant in his suit charging it and BigComerce Inc. with infringement after Google published a photograph and image of the subject cap. Denying Lopez leave to add a fraudulent misrepresentation claim against Google’s counsel the court dismissed his amended complaint alleging trademark infringement and unfair competition violating the Lanham Act and New York common law, copyright infringement under the Digital Millennium Copyright Act. In dismissing Lopez’s trademark claims, the court noted his failure to show the HUSTLE mark’s registration in compliance with §2 of the Lanham Act, as well as his failure to allege Google offered or sold his mark. He insufficiently alleged Google’s use of his HUSTLE mark in commerce. In addition to failing to identify specific instances of copyright infringement, the court rejected Lopez’s claim that his copyright was infringed by Google’s search engine’s display of thumbnail images showing the subject cap. A search engine’s display of thumbnail images in search results was a noninfringing fair use.