'Clickwrap' forum selection clause creates presumption of personal jurisdiction D Colo. (also read fn 1) http://t.co/oeuUyvei93
— TrademarkBlog (@TrademarkBlog) September 7, 2014
EDNY court exercises personal jurisdiction over defendant whose contacts with New York consist of three trap sales to plaintiff and fairly successful ‘stores’ on Amazon and eBay.
Tag this as NY long arm jurisdiction file.
Plaintiff alleges that Defendants’ infringing actions include selling McPherson’s book, “DO Something: Make Your Life Count,” in New York, promoting McPherson’s book in New York and advertising and offering items for sale to New York residents via interactive websites. Plaintiff has made a prima facie showing that jurisdiction exists pursuant to § 302(a)(l).
After Iowa defendant began using same mark as Arkansas plaintiff, defendant attended a single meeting in Arkansas to discuss taking a license. This meeting did not give rise to specific personal jurisdiction in Arkansas.
Personal jurisdiction is a matter of state law. NY copyright owner (Penguin) sues Oregon/Arizona entity in New York for uploading copyrighted works onto website. The Federal District Court dismisses for lack of long arm jurisdiction under NY’s statute. Looking to NY’s highest court for interpretation of its state statute, the Second Circuit certified the following question to the state Court of Appeal:
In copyright infringement cases involving the uploading of a copyrighted printed literary work onto the Internet, is the situs of injury for purposes of determining long-arm jurisdiction under NY CPLR Section 302(a)(3)(ii) the location of the infringing action or the residence or location of the principal place of business of the copyright holder?
NY COA answer: The location of the copyright holder.
This is now the latest Second Circuit decision on minimum contacts in NY in an IP context.
Chloe sues Defendant. Defendant sold 52 non-Chole bags into NY and one alleged Chloe-counterfeit to Chloe’s NY law firm. The 2d Cir finds the totality of those sales sufficient for personal jurisdiction Page 18: the court says that a single trap sale ‘might well be sufficent.’
Decision Chloe Queen Bee 2d Circuit PJ
In a copyright action involving works uploaded to the Internet, does New York jursidiction lie over an out-of-state defendant with no contacts with New York, if, inter alia, the defendant is alleged to have committed a tortious act outside the State that caused, and reasonably should have been expected by the putative defendant to cause, injury to a person or property within the State.
Finding conflicting authorities on the issue, the Second Circuit certified the question for review by the NY Court of Appeals. Penguin Group v American Buddha.
Decison Ny 2d – Personal Jurisdiction
Defendant’s website passively listed information and had an 800 number. No personal jurisdiction in Ohio.
Decision Hague Puretech Personal Jurisdiction
Plaintiff alleges that Baidu, China’s largest search engine, infirnged its copyrights. Held: (1) Baidu’s designated US agent, CT Corp., may limit its agency to service of process to matters relating only to securities; and (2) Baidu’s NASDAQ listing constitutes insufficient contacts for purposes of NY personal jurisdiction.
Decision Baidu Service Personal Jursidiction
Virginia defendant operates a website that allows listeners to listen to music, create playlists and to download ringtones. Site is advertiser-sponsored and targeted at the Indian non-resident population. NY plaintiff sues in NY. It has no specific allegations of sales or other contacts with NY, but makes inferential arguments based on fact that 15% of Indians living in the US live in NY state.
Court applies three level active/passive test and finds that defendant’s site is in the middle – not fully interactive because it does not transact traditional business over the Interent because it neither sells goods or services through its website nor charges membership fees (Ed. note: I assume that if defendant charged for ringtones, that would be a traditional business, but here it distributes ringtones on an advertiser supported basis). Here there was no evidence that NY residents engaged in downloading materials from the website.
Of interest was the fact that Plaintiff was denied the opportunity to take expedited discovery relating to jurisdiction as plaintiff failed to allege any plausible basis for finding jurisdiction, nor did it identify any particular facts it would seek to adduce through discovery (Ed. note: defendant’s list of registered members?? Download logs??).
Motion to dismiss for lack of personal jurisdiction granted.