Maritz, Inc. v. Cybergold, Inc., 947 F. Supp. 1328 (E.D. Mo.1996) (full-text).
The defendant had put up a website as a promotion for its upcoming Internet service. The service consisted of assigning users an electronic mailbox and then forwarding advertisements for products and services that matched the users' interests to those electronic mailboxes. The defendant planned to charge advertisers and provide users with incentives to view the advertisements. Although the service was not yet operational, Cybergold promoted its planned online services by setting-up a website at www.cybergold.com.
Maritz, a rival located in Missouri, offered an identical online service through its own website at www.goldmail.com. Maritz apparently announced its "GoldMail" online marketing services prior to CyberGold's operation of its competing website.
Trial Court Proceedings
Maritz filed suit in its home forum of Missouri against the California-based CyberGold. Maritz asserted that the mark "CyberGold" was confusingly similar to its mark "GoldMail" for identical online services, and that CyberGold was engaged in trademark infringement and unfair competition. CyberGold responded by seeking dismissal of the action for lack of personal jurisdiction.
To determine the nature and quantity of contacts by CyberGold with Missouri, the district court compared electronic contacts with a forum via a website to other means of forum contact, such as mass mailing of solicitations or national advertising of an 800 telephone number. Unlike a focused communications medium, the court found that a website offers a quick and efficient means for reaching a global audience. Significantly, once posted on a website, information is available continuously to any Internet user, regardless of the location of the user.
Rather than accept CyberGold's view that it maintained a "passive website," the court determined that "[t]hrough its website, CyberGold has consciously decided to transmit advertising information to all Internet users, knowing that such information will be transmitted globally." The court found that CyberGold purposefully availed itself of Missouri based on 130 electronic contacts by Missouri users (other than Maritz) of CyberGold's website. The court reasoned that the defendant's conduct amounted to “active solicitations” and “promotional activities” designed to “develop a mailing list of Internet users” and that the defendant “indiscriminately responded to every user” who accessed the site.
Moreover, the court determined that the assertions of trademark infringement and unfair competition resulted from information available at CyberGold's website, which allegedly caused economic injury to Maritz in Missouri.
- 947 F. Supp. at 1330.
- Id. at 1333-34.
- Id. at 1333-34.