Re: DEC vs AltaVista

On 06/02/97, John Noble <jnoble[_at_]dgsys.com> wrote:
>
> On 5/31/97, Carl Oppedahl <carl[_at_]oppedahl.com> wrote:
> >
> > On 05/30/97, 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.
> >
> > No, sorry, but DEC v Altavista says nothing of the sort.
>
> Perhaps I have overstated the case, but it certainly says something
> of the sort.

Well, the judge didn't seem to think so, and his opinion probably counts for more than yours or mine. Here's what the DEC v Altavista judge had to say:

        The parties at bar are corporations who have attempted 
        to tame the "Wild West" of the Internet through their 
        private ordering.  They have entered into a contract 
        governing their commercial activities on the Internet. 
        Digital sought (and indeed bought) all rights to a 
        trademark identifying its search engine, with certain 
        express exceptions;  ATI agreed to enter into a licensing 
        agreement.  They both agreed that Massachusetts law would 
        apply to its provisions.  While ATI may have tried to 
        structure its relationship with Digital so that it would 
        not be susceptible to jurisdiction in Massachusetts, its 
        subsequent Web activities bring ATI "over the line," and 
        render jurisdiction appropriate.

        This case does not reach the issue of whether any Web 
        activity, by anyone, absent commercial use, absent 
        advertising and solicitation of both advertising and sales, 
        absent a contract and sales and other contacts with the 
        forum state, and absent the potentially foreseeable harm 
        of trademark infringement, would be sufficient to permit 
        the assertion of jurisdiction over a foreign defendant. 
        While it raises some troubling issues, and while the 
        traditional analyses must be informed by this new technology, 
        ultimately, this is not the day nor the forum to resolve them.




> > The classic tort case that Mr. Noble imagines is one in which the

> > defendant has no pre-existing relationships, contractual or otherwise,

> > with anyone.  Instead, the defendant has only a web site.  The plaintiff

> > in such a case understandably hopes the law would develop that personal

Well, if I am whistling past the graveyard, then I am not alone in doing so. I have good company -- the judge who wrote the above-quoted text, the Blue Note judge, the Esqwire judge ...

Carl Oppedahl
<carl[_at_]oppedahl.com> Received on Mon Jun 02 1997 - 18:10:55 GMT