                              UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                              No. 15-1202


BALDINO’S LOCK & KEY SERVICE, INC.,

                Plaintiff – Appellant,

          v.

GOOGLE   INC.;  ZIPLOCAL,      LP;   JOHN    DOES       1-25;   GOOGLE
INFORMATION, INC.,

                Defendants – Appellees,

          and

SUPERMEDIA SALES,   INC.;     YELLOWBOOK    INC.,   a    division   of
Hibu, Inc.,

                Defendants.



Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria.    Claude M. Hilton, Senior
District Judge. (1:14-cv-00636-CMH-TCB)


Submitted:   November 30, 2015              Decided:      December 4, 2015


Before NIEMEYER, MOTZ, and DIAZ, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Donald C. Holmes, DONALD C. HOLMES & ASSOCIATES, P.A.,
Greensboro, Maryland; Andrew C. Bisulca, LAW OFFICE OF ANDREW C.
BISULCA, P.C., Woodbridge, Virginia, for Appellant. Dennis J.
Quinn, Kristine M. Ellison, CARR MALONEY P.C., Washington, D.C.;
Daryl L. Joseffer, Taylor T. Lankford, Carolyn M. Sweeney, KING
& SPALDING LLP, Washington, D.C.; Kathleen E. McCarthy, KING &
SPALDING, New York, New York, for Appellees.


Unpublished opinions are not binding precedent in this circuit.




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PER CURIAM:

     Baldino’s Lock & Key Service, Inc. (Baldino’s) appeals the

district    court’s       order    granting          the   Defendants’     motions       to

dismiss for failure to state a claim upon which relief can be

granted.    We affirm.

     Baldino’s is a Virginia corporation and licensed locksmith

that provides locksmith services in Virginia, Maryland and the

District     of    Columbia.            In     its     Second   Amended    Complaint,

Baldino’s     asserted           that        the     Defendants,       Google,     Inc.,

YellowBook,       Inc.,   and     Ziplocal,          LP,   knowingly    published      the

names, addresses and phone numbers of unlicensed locksmiths on

their websites in order to gain advertising revenue.                        Baldino’s

alleged    violations       of     the       Racketeer     Influenced     and    Corrupt

Organizations Act (RICO), 18 U.S.C. §§ 1961-68 (2012), and the

Lanham Act, 15 U.S.C. § 1125(a)(1)(B) (2012).

     The    district       court    granted          the   Defendants’    motions       to

dismiss.     Of relevance to this appeal, * the court determined that

Baldino’s had not shown that the Defendants had made a false or

misleading        description        or        representation      of      fact        and,

accordingly, had failed to state a claim under the Lanham Act.




     * On appeal, Baldino’s has expressly abandoned                             both   its
claims against YellowBook and its RICO claims.



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     We review de novo a district court’s dismissal of an action

for failure to state a claim.                  Trejo v. Ryman Hosp. Props.,

Inc., 795 F.3d 442, 445-46 (4th Cir. 2015).                   To survive a Rule

12(b)(6) dismissal, “a complaint must contain sufficient factual

matter, accepted as true, to state a claim to relief that is

plausible on its face.”            Ashcroft v. Iqbal, 556 U.S. 662, 678

(2009) (internal quotation marks omitted).                   We must accept as

true the complaint’s factual allegations and draw all reasonable

inferences     in   favor     of    the       nonmoving   party.        Kensington

Volunteer Fire Dep’t v. Montgomery Cty., 684 F.3d 462, 467 (4th

Cir. 2012).

     The    “Lanham     Act   creates     a    private    right    of   action   for

corporate     victims    of   ‘false      or    misleading’       descriptions    or

representations.”       In re GNC Corp., 789 F.3d 505, 514 (4th Cir.

2015).      To prevail on a Lanham Act claim, a plaintiff must

establish that:

    (1)   the  defendant   made   a false   or  misleading
    description of fact or representation of fact in a
    commercial advertisement about his own or another’s
    product; (2) the misrepresentation is material, in
    that it is likely to influence the purchasing
    decision; (3) the misrepresentation actually deceives
    or has the tendency to deceive a substantial segment
    of its audience; (4) the defendant placed the false or
    misleading statement in interstate commerce; and
    (5) the plaintiff has been or is likely to be injured
    as a result of the misrepresentation, either by direct
    diversion of sales or by a lessening of goodwill
    associated with its products.



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Design Resources, Inc. v. Leather Indus. of Am., 789 F.3d 495,

501 (4th Cir. 2015).

      Here,       the     district     court       correctly       determined       that

Baldino’s        failed    to   show      that      the      Defendants      made    any

representations.           Rather,     the       locksmiths    who    generated      the

information       that    appeared   on   Defendants’         websites     are   solely

responsible for making any faulty or misleading representations

or descriptions of fact.             Accordingly, the district court did

not   err   in    dismissing    Baldino’s         Lanham     Act   claim   under    Rule

12(b)(6).

      We    therefore      affirm.        We      dispense    with    oral    argument

because the facts and legal contentions are adequately presented

in the materials before the court and argument would not aid the

decisional process.

                                                                              AFFIRMED




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