This article also appeared in the January 2015 issue of The Licensing Journal.
In analyzing the case, the court closely scrutinized the website's actual design and content and the contract notice and implementation measures used for the TOU. Following this review, the court concluded that (i) the TOU was accessible through underlined hyperlinks set in green typeface located in the bottom left-hand corner of every page on the website; and (ii) those hyperlinks were located (a) alongside other legal notices, and (b) in close proximity to buttons that users had to click on to complete online purchases. Nevertheless, despite these findings, the Ninth Circuit Court of Appeals ultimately still ruled against the website operator as follows:
Accordingly, the court held that the plaintiff did not receive sufficient notice of the TOU, and therefore did not accept the terms and enter into a contract with the website operator. Without an enforceable contract, the website operator could not rely upon arbitration as a means to address the plaintiff's claims.