130 F.3d 414; 1997 U.S. App. LEXIS 33871

Summary prepared by Devashish Bharuka
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Cybersell, a Arizona corpn. that advertises for commercial services over the Internet, claims that Cybersell, a Florida corpn., that offers web page construction services over the Internet, infringed its federally registered mark and should be amenable to suit in Arizona because cyberspace is without borders and a web site which advertises a product or service is necessarily intended for use on a world wide basis.

Question of personal jurisdiction arose which the Court answered as follows:
Arizona will exert personal jurisdiction over a nonresident litigant to the maximum extent allowed by the federal constitution. A court may assert general or specific jurisdiction. Cybersell AZ concedes that general jurisdiction over Cybersell FL doesn't exist in Arizona, so the only issue in this case is whether specific jurisdiction is available. Three-part test for exercising specific jurisdiction -
1) Performing some act by which the defendant purposefully avails himself of the privilege of conducting activities in the forum, thereby invoking the benefits and protections;
2) the claim must be one which arises out of or results from the defendant's forum-related activities;
3) exercise of jurisdiction must be reasonable.

Plaintiff argued that the test is met because trademark infringement occurs when the passing off of the mark occurs, which in this case, it submitted, happened when the name "Cybersell" was used on the Internet in connection with advertising.

The Court observed that it is essential in each case that there be some act by which the defendant purposefully avails itself of the privilege of conducting activities within the forum state, thus invoking the benefits and protections of its laws.

Courts that have addressed interactive site have looked to the "level of interactivity and commercial nature of the exchange of information that occurs on the Web site" to determine if sufficient contacts exist to warrant the exercise of jurisdiction. Plaintiff contended that the mere advertisement or solicitation for sale of goods and services on the Internet gives rise to specific jurisdiction in the plaintiff's forum.

On analysis, Court observed that Cybersell FL conducted no commercial activity over the Internet, had only posted a passive home page, did nothing to encourage people in Arizona to access its site, entered into no contracts in Arizona, made no sales in Arizona, received no telephone calls from Arizona, earned no income from Arizona, and sent no messages over the Internet to Arizona. Further, it had no "800" number or a toll-free number that used "Cybersell" name. In short, it did no act and  consummated no transaction, nor had it performed any act by which it purposefully availed itself of the privilege of conducting activities, in Arizona, thereby invoking the benefits and protections of Arizona law. The court held that Cybersell FL's contacts are insufficient to establish "purposeful availment".

Held, there is no personal jurisdiction.