We continue our Forward into the Past reconnoiter of Internet law with Zippo dot com, a WD of Pennsylvania decision which seemed to authoritatively resolve the question of what is the proper test for evaluating whether a defendant’s contacts with a forum over the internet are sufficient for asserting specific jurisdiction over that defendant.

The three-part active-to-passive Zippo Dot Com sliding scale:

“At one end of the spectrum are situations where a defendant clearly does business over the Internet, an active website.” . .  “If the defendant enters into contracts with residents of a foreign jurisdiction that involve the knowing and repeated transmission of computer files over the Internet, then personal jurisdiction is proper.”

“At the opposite end are situations where a defendant has simply posted information on an Internet website which is accessible to users in foreign jurisdictions.” . . .  “A passive website that does little more than make information available to those who are interested in it is not grounds for the exercise of personal jurisdiction.”

“The middle ground is occupied by interactive websites where a user can exchange information with the host computer.”. . . “In these cases, the exercise of jurisdiction is determined by examining the level of interactivity and commercial nature of the exchange of information that occurs on the website.”

Link to text of decision in Zippo Mfg v Zippo Dot Com

Wikipedia’s Personal Jurisdiction on the Internet Page

 

Forward into the past – reconnoitering the golden oldies of Internet law:

From the Wikipedia entry on Bensusan v King:

Bensusan Restaurant Corp. v. King,[1] 126 F.3d 25, is a 1997 United States Court of Appeals for the Second Circuit case that helped define the parameters of personal jurisdiction in the Internet context, specifically for passive websites that only advertise local services. The opinion, written by Judge Ellsworth Van Graafeiland, affirmed the United States District Court for the Southern District of New York‘s holding that defendant Richard B. King’s Internet website did not satisfy New York’s long-arm statute requirements for plaintiff Bensusan Restaurant Corporation to bring a trademark infringement suit in New York. The District Court’s decision also likened creating a website to merely placing a product into the stream of commerce, and held that such an act was insufficient to satisfy due process and personal jurisdiction requirements

Link to 2d Circuit decision in Bensusan v King

Facebook withstands motion to dismiss against allegedly related domain name companies.

Prior news coverage regarding Facebook lawsuit against OnlineNic here.

Link to complaint in Facebook vs. OnlineNic here.

Text of decision in Facebook v OnlineNic re motion to dismiss here:

facebook v onlinenic nd cal cybersquatting

Hermès owns various trademark registrations for the marks Hermès, BIRKIN, and in the configuration of its BIRKIN bag. Defendant Mason Rothschild, is a digital artist who created a METABIRKINS line of NFTs, digital art pieces that depict furry versions of the BIRKIN bag. The digital pieces are offered for sale at approximately 3 ETHER each, which at today’s exchange rate of $3350, is approximately $10K.

Rothschild uses the domain name metabirkin.com, social media handles such as @metabirkins, and names his store on marketplaces such as Raribles.com as METABIRKINS.

Hermès has now sued. for infringement, dilution, and cybersquatting.

There is an interesting Rogers Test (artistic relevance) issue in some of these NFT cases.

The Fashion Law coverage of the METABIRKIN dispute here.

Text of decision here: sdny hermes v rothschild complaint

 

Defendant moved to dismiss plaintiff’s claims for statutory damages, as its infringement began prior to the filing of plaintiff’s earliest copyright applications. Plaintiff argued that defendant’s ongoing infringement, which occurred subsequent to plaintiff’s latest filings, would be subject to possible statutory damages.

Held: plaintiff given leave to plead with specificity whether defendant’s infringing activity of the material contained in the new filings, began subsequent to those new filings.

Text of decision:
big run v avia nd cal

Although plaintiff Remy Martin owns a registration for its claimed trade dress in its cognac bottle, and even though it provided images of the drawings from its registrations and of the relevant bottles, plaintiff did not clearly and separately identify the elements of its claimed trade dress. Its trademark claims were dismissed with leave to replead.

Text of decision: remy martin v sire sdny bottle


Class action alleging various New York state torts including false advertising arising from the Jets and Giants identifying themselves as New York teams when they play in New Jersey. Note to out-of-towners – both the Jets and the Giants have w-l records of 4 and 12.

Some coverage here (As of now, most of the coverage is behind paywalls) and this link is wonky.

Text of complaint in Suero v Jets and Giants jets and giants 1_22-cv-00031-AJN_1_PRIMARY DOCUMENT