Intellectual Property Law

SDNY: Another Personal Jurisdiction Case Concerning A Website

By Marty Schwimmer

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.

Decision Dishant

Full post as published by Trademark Blog on August 05, 2009 (boomark / email).