Re: DEC vs AltaVista

On 5/31/97, Bob Stock <bstock[_at_]ucla.edu> wrote:
>
> 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?

Yes, it does. As I just finished laying out in response to Carl, I think you hit on the explanation for Bensusan. It was obviously _not_ soliciting business in NY, countering the otherwise ready inference that doing business on the web is doing business outside the home state.

> 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.

Agreed.

> (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.)

I have no concluding that both were rightly decided, although I think Bensusan would benefit from a less cursory analysis of the issue.

John Noble
<jnoble[_at_]dgsys.com> Received on Mon Jun 02 1997 - 15:37:44 GMT