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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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McDonough v. Fallon McElligott, Inc.

1996 U.S. Dist. Lexis 15139 (S.D. Cal. August 5, 1996)

In McDonough, the court held that a commercial websites accessibility to forum residents, standing alone, is insufficient to sustain personal jurisdiction over the creator of the site in a suit that does not arise out of operation of the site itself. Plaintiff, a sports photographer residing in California, sued Defendant Fallon McElligott, a Minnesota based advertising agency which had neither offices nor employees in California. Plaintiff claimed that defendant, without his permission or consent, utilized a photograph plaintiff took in an advertisement defendant created, which advertisement was published in magazines having national circulation, and which was a finalist in an advertisement awards contest, the ceremony of which was held in California. Plaintiff sued defendant, alleging its conduct constituted copyright infringement, unfair competition, and violations of plaintiff's privacy and publicity rights. Defendant also operated a web site that could be viewed by California residents (but which apparently did not feature the allegedly infringing advertisement). In granting defendant's motion to dismiss for want of personal jurisdiction, the court expressly held that the availability of defendant's website to California residents was insufficient to create personal jurisdiction over the defendant for all of its actions, whether or not related to the web site. Said the court: "plaintiff has alleged that Fallon maintains a World Wide Web site. Because the Web enables easy world-wide access, allowing computer interaction via the web to supply sufficient contacts to establish jurisdiction would eviscerate the personal jurisdiction requirement as it currently exists; the court is not willing to take this step. Thus, the fact that Fallon has a Web site used by Californians cannot establish jurisdiction by itself."

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