On Fri, 30 May 1997, John Noble <jnoble[_at_]dgsys.com> wrote:
>
> What I think it says is that when you use an infringing trademark
> on the "world wide web" you are committing a tort in each
> jurisdiction in which it is in fact displayed, and that is
> sufficient to establish jurisdiction.
>
> When you put your business on the web you are, it seems to me,
> "purposely availing" yourself of the opportunity to do business
> everywhere
So, with your appealingly simple brightline rule, a case like Bensusan would come out the other way. Thus, a local club owner in the Midwest, who is quite clearly not attempting to do business everywhere, would be liable to a New York club owner simply because of the possibility of a New Yorker accessing the web site. It seems that businesses, especially small ones, would have to think twice about using the web as a vehicle in their communities. Doesn't that strike you, as a matter of policy let alone doctrine, as going too far?
One of the problems with web advertising is the medium makes no distinction between local, regional, national, or international. If the Missouri club owner wanted to advertise locally on a medium other than the web, he could easily restrict himself to local rags or local TV broadcasts, and no one would even think he was attempting to advertise to NYers. But because he uses the web, a possibly more convenient forum for some local recipients, he must now think about being haled into court in any jurisdiction in the world, even though he did not intentionally direct his advertising to that jurisdiction. Seems Draconian to me.
(I am putting aside the annoying difficulty of proving that something is "in fact displayed" in a particular jurisdiction and by whom. I am also not saying that Bensusan and Digital are the same.)
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