UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

┐ THE OHIO STATE UNIVERSITY, │ Plaintiff-Appellant, │ > No. 19-3388 │ v. │ │ REDBUBBLE, INC., │ Defendant-Appellee. │ ┘

Appeal from the United States District Court for the Southern District of Ohio at Columbus. No. 2:17-cv-01092—Algenon L. Marbley, District Judge.

Argued: March 12, 2020

Decided and Filed: February 25, 2021

Before: GRIFFIN, WHITE, and NALBANDIAN, Circuit Judges.

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COUNSEL ARGUED: Michael J. Hendershot, OFFICE OF THE OHIO ATTORNEY GENERAL, Columbus, Ohio, for Appellant. Kenneth B Wilson, COASTSIDE LEGAL, Half Moon Bay, California, for Appellee. ON BRIEF: Michael J. Hendershot, Benjamin M. Flowers, OFFICE OF THE OHIO ATTORNEY GENERAL, Columbus, Ohio, for Appellant. Kenneth B Wilson, COASTSIDE LEGAL, Half Moon Bay, California, Gerhardt A. Gosnell II, JAMES E. ARNOLD & ASSOCIATES, LPA, Columbus, Ohio, Joshua M. Masur, ZUBER LAWLER & DEL DUCA LLP, Redwood City, California, for Appellee. David H. Bernstein, DEBEVOISE & PLIMPTON LLP, New York, New York, Paul D. Clement, KIRKLAND & ELLIS LLP, Washington, D.C., Joseph C. Gratz, Samuel J. Zeitlin, DURIE TANGRI LLP, San Francisco, California, Jef Pearlman, UNIVERSITY OF CALIFORNIA GOULD SCHOOL, Los Angeles, California, for Amici Curiae. No. 19-3388 The Ohio State Univ. v. Redbubble, Inc. Page 2

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OPINION _________________

NALBANDIAN, Circuit Judge. Online shopping has transformed American life. Gone is the heyday of shopping malls and in-person retail. Instead, Americans increasingly choose to make purchases online. Although digital marketplaces may not require the same type of upkeep and maintenance as brick-and-mortar businesses, someone still manages them. This case concerns the responsibilities of companies that operate marketplaces facilitating online transactions between consumers and vendors.

The prime example of the modern digital marketplace is Amazon.com, Inc. Amazon operates a website where, among other things, third-party vendors sell their goods to consumers. Because Amazon’s marketplace operates as a neutral intermediary between consumers and third-party vendors, courts have typically not found it liable for trademark-infringing goods sold through its platform. See, e.g., Multi Time Mach., Inc. v. Amazon.com, Inc., 804 F.3d 930, 938–39 (9th Cir. 2015); Milo & Gabby, LLC v. Amazon.com, Inc., No. C13-1932RSM, 2015 WL 4394673, at *6 (W.D. Wash. July 16, 2015). This case turns on whether Redbubble, Inc., an Australia-based online retailer, enjoys similar immunity from trademark-infringement claims arising from products displayed on and sold through its digital marketplace. The Ohio State University (OSU) argues that Redbubble’s marketplace model differs from those used by Amazon, eBay, and other passive e-commerce facilitators. So OSU alleges that Redbubble violated the Lanham Act and Ohio’s right-of-publicity statute because it acted less like a hands- off intermediary and more like a co