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Designer Skin LLC v. S & L Vitamins, Inc., et al.
Unauthorized internet reseller of plaintiff’s products is not guilty of trademark infringement, and does not cause actionable initial interest confusion, by using plaintiff’s trademarks in meta tags of website at which plaintiff’s and its competitors’ products are sold, and in...

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Fix My PC, LLC d/b/a Fixx My PC v. N.F.N. Associates, Inc. d/b/a Pure Logic Computers

48 F. Supp. 2d 640 (N.D. Tex., March 26, 1999)

Plaintiff, a Texas-based corporation, brought this trademark infringement suit against the defendant, a non-resident New York corporation. Plaintiff asserted that defendant's use of the phrase "fix my pc" in both its web site domain name and a toll free eight hundred telephone number infringed plaintiff's rights in the mark "fixx my pc."

On defendant's motion, the Texas court dismissed the suit on the ground that it lacked personal jurisdiction over defendant. Defendant did not have offices or employees in Texas, nor had it rendered or contracted to provide services to any Texas resident. Plaintiff nonetheless argued that the court could exercise jurisdiction over the defendant by virtue of 1) defendant's maintenance of a web site on the Internet available to Texas residents, on which site defendant advertised its services; 2) defendant's operation of a toll free eight hundred telephone number over which it could be contacted; and 3) defendant's purchase on regular intervals of supplies from a Texas-based concern.

The court found these contacts insufficient to permit it to assert personal jurisdiction over defendant. The court, following Zippo Manuf. Co. v. Zippo Dot Com, Inc., 952 F.Supp. 1119 (W.D. Pa. 1997), held that a sliding scale analysis is applied in determining whether maintenance of a web site gives rise to jurisdiction. "Passive web sites, on their own, do not provide for personal jurisdiction over the owner of the site." Finding that defendant operated a passive web site on which it merely advertised its services, the court held that this site, standing alone, was insufficient to support the assertion of specific personal jurisdiction over the defendant. Nor did the fact that defendant operated a toll free number change this result, because this telephone number did not appear on defendant's web site.

In so holding, the court specifically rejected the early holding of the United States District Court for the District of Connecticut in Inset Systems Inc. v. Instruction Set, Inc., 937 F. Supp. 161 (D. Conn. 1996). "The above-cited Texas cases have established that Inset Systems has not been followed by the federal courts here."

Lastly, the court concluded that defendant's regular purchase of supplies was insufficient to permit the assertion of general jurisdiction over the defendant. "The Supreme Court has held that mere purchases from the forum state, even if they are made at regular intervals, will not be enough to establish personal jurisdiction over a nonresident defendant if the purchases at issue are not related to the plaintiff's cause of action."

The full text of the court's decision can be found on a web site maintained by Prof. Randy Canis of the University of Missouri - Rolla.

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