Appeal from the United States District Courtfor the District of ArizonaEarl H. Carroll, District Judge, PresidingArgued and SubmittedNovember 6, 1997--San Francisco, CaliforniaFiled December 2, 1997Before: Harlington Wood, Jr.,* Pamela Ann Rymer, andA. Wallace Tashima, Circuit Judges.Opinion By Judge RymerSUMMARY
_____________________________COUNSEL Connie J. Mableson, Phoenix, Arizona, for the plaintiff-appellant.Michael R. Levin and Christopher T. Hill, Rumberger, Kirk& Caldwell, Orlando, Florida, for the defendants-appellees.
_____________________________OPINION RYMER, Circuit Judge:We are asked to hold that the allegedly infringing use of aservice mark in a home page on the World Wide Web sufficesfor personal jurisdiction in the state where the holder of themark has its principal place of business. Cybersell, Inc., anArizona corporation that advertises for commercial servicesover the Internet, claims that Cybersell, Inc., a Florida corpo-ration that offers web page construction services over theInternet, infringed its federally registered mark and should beamenable to suit in Arizona because cyberspace is withoutborders and a web site which advertises a product or serviceis necessarily intended for use on a world wide basis. The dis-trict court disagreed, and so do we. Instead, applying our nor-mal "minimum contacts" analysis, we conclude that it wouldnot comport with "traditional notions of fair play and substan-tial justice," Core-Vent Corp. v. Nobel Indus. AB, 11 F.3d1482, 1485 (9th Cir. 1993) (quoting International Shoe Co. v.Washington,
326 U.S. 310, 316
(1945)), for Arizona to exer-cise personal jurisdiction over an allegedly infringing Floridaweb site advertiser who has no contacts with Arizona otherthan maintaining a home page that is accessible to Arizonans,and everyone else, over the Internet. We therefore affirm.ICybersell, Inc. is an Arizona corporation, which we willrefer to as Cybersell AZ. It was incorporated in May 1994 toprovide Internet and web advertising and marketing services,including consulting. The principals of Cybersell AZ are Lau-rence Canter and Martha Siegel, known among web users forfirst "spamming" the Internet.1 Mainstream print media car-ried the story of Canter and Siegel and their various efforts tocommercialize the web.On August 8, 1994, Cybersell AZ filed an application toregister the name "Cybersell" as a service mark. The applica-tion was approved and the grant was published on October 30,1995. Cybersell AZ operated a web site using the mark fromAugust 1994 through February 1995. The site was then takendown for reconstruction.Meanwhile, in the summer of 1995, Matt Certo and hisfather, Dr. Samuel C. Certo, both Florida residents, formedCybersell, Inc., a Florida corporation (Cybersell FL), with itsprincipal place of business in Orlando. Matt was a businessschool student at Rollins College, where his father was a pro-fessor; Matt was particularly interested in the Internet, andtheir company was to provide business consulting services forstrategic management and marketing on the web. At the timethe Certos chose the name "Cybersell" for their venture,Cybersell AZ had no home page on the web nor had the PTOgranted their application for the service mark.As part of their marketing effort, the Certos created a webpage at http://www.cybsell.com/cybsell/index.htm. The homepage has a logo at the top with "CyberSell" over a depictionof the planet earth, with the caption underneath "ProfessionalServices for the World Wide Web" and a local (area code407) phone number. It proclaims in large letters "Welcome toCyberSell!" A hypertext link2 allows the browser to introducehimself, and invites a company not on the web -- but inter-ested in getting on the web -- to "Email us to find out how!"Canter found the Cybersell FL web page and sent an e-mailon November 27, 1995 notifying Dr. Certo that "Cybersell"is a service mark of Cybersell AZ. Trying to disassociatethemselves from the Canters, the Certos changed the name ofCybersell FL to WebHorizons, Inc. on December 27 (later itwas changed again to WebSolvers, Inc.) and by January 4,1996, they had replaced the CyberSell logo at the top of theirweb page with WebHorizons, Inc. The WebHorizons pagestill said "Welcome to CyberSell!"Cybersell AZ filed the complaint in this action January 9,1996 in the District of Arizona, alleging trademark infringe-ment, unfair competition, fraud, and RICO violations. On thesame day Cybersell FL filed suit for declaratory relief withregard to use of the name "Cybersell" in the United StatesDistrict Court for the Middle District of Florida, but thataction was transferred to the District of Arizona and consoli-dated with the Cybersell AZ action. Cybersell FL moved todismiss for lack of personal jurisdiction. The district courtdenied Cybersell AZ's request for a preliminary injunction,then granted Cybersell FL's motion to dismiss for lack of per-sonal jurisdiction.3 Cybersell AZ timely appealed.II[1] The general principles that apply to the exercise of per-sonal jurisdiction are well known. As there is no federal stat-ute governing personal jurisdiction in this case, the law ofArizona applies. Under Rule 4.2(a) of the Arizona Rules ofCivil Procedure, an Arizona court may exercise personal jurisdiction over parties, whether found within or outside the state, to the maximum extent permitted by the Constitution of this state and the Constitution of the United States.The Arizona Supreme Court has stated that under Rule 4.2(a),"Arizona will exert personal jurisdiction over a nonresidentlitigant to the maximum extent allowed by the federalconstitution." Uberti v. Leonardo, 181 Ariz. 565, 569, 892P.2d 1354, 1358, cert. denied, 116 S. Ct. 273 (1995). Thus,Cybersell FL may be subject to personal jurisdiction in Ari-zona so long as doing so comports with due process.[2] A court may assert either specific or general jurisdictionover a defendant. See Helicopteros Nacionales de Colombia,S.A. v. Hall,
466 U.S. 408, 414
(1984). Cybersell AZ con-cedes that general jurisdiction over Cybersell FL doesn't existin Arizona, so the only issue in this case is whether specificjurisdiction is available.[3] We use a three-part test to determine whether a districtcourt may exercise specific jurisdiction over a nonresidentdefendant: (1) The nonresident defendant must do some act or consummate some transaction with the forum or per- form some act by which he purposefully avails him- self of the privilege of conducting activities in the forum, thereby invoking the benefits and protec- tions[;] (2) [t]he claim must be one which arises out of or results from the defendant's forum-related activities[; and] (3) [e]xercise of jurisdiction must be reasonable.Ballard v. Savage, 65 F.3d 1495, 1498 (9th Cir. 1995) (cita-tions omitted).Cybersell AZ argues that the test is met because trademarkinfringement occurs when the passing off of the mark occurs,which in this case, it submits, happened when the name"Cybersell" was used on the Internet in connection withadvertising. Cybersell FL, on the other hand, contends that aparty should not be subject to nationwide, or perhaps world-wide, jurisdiction simply for using the Internet.A[4] Since the jurisdictional facts are not in dispute, we turnto the first requirement, which is the most critical. As theSupreme Court emphasized in Hanson v. Denckla, "it isessential in each case that there be some act by which thedefendant purposefully avails itself of the privilege of con-ducting activities within the forum State, thus invoking thebenefits and protections of its laws."
357 U.S. 235
, 253(1958). We recently explained in Ballard that the "purposeful availment" requirement is satisfied if the defendant has taken deliberate action within the forum state or if he has created continuing obliga- tions to forum residents. "It is not required that a defendant be physically present within, or have physical contacts with, the forum, provided that his efforts `are purposefully directed' toward forum residents."Ballard, 65 F.2d at 1498 (citations omitted).We have not yet considered when personal jurisdiction maybe exercised in the context of cyberspace, but the Second andSixth Circuits have had occasion to decide whether personaljurisdiction was properly exercised over defendants involvedin transmissions over the Internet, see CompuServe, Inc. v.Patterson, 89 F.3d 1257 (6th Cir. 1996); Bensusan RestaurantCorp. v. King, 937 F. Supp. 295 (S.D.N.Y. 1996), aff'd, No.96-9344, 1383, 1997 WL 560048 (2d Cir. Sept. 10, 1997), ashave a number of district courts. Because this is a matter offirst impression for us, we have looked to all of these casesfor guidance. Not surprisingly, they reflect a broad spectrumof Internet use on the one hand, and contacts with the forumon the other. As CompuServe and Bensusan seem to representopposite ends of the spectrum, we start with them. 4CompuServe is a computer information service head-quartered in Columbus, Ohio, that contracts with individualsubscribers to provide access to computing and informationservices via the Internet. It also operates as an electronic con-duit to provide computer software products to its subscribers.Computer software generated and distributed in this way isoften referred to as "shareware." Patterson is a Texas residentwho subscribed to CompuServe and placed items of"shareware" on the CompuServe system pursuant to a"Shareware Registration Agreement" with CompuServewhich provided, among other things, that it was "to be gov-erned by and construed in accordance with" Ohio law. Duringthe course of this relationship, Patterson electronically trans-mitted thirty-two master software files to CompuServe, whichCompuServe stored and displayed to its subscribers. Saleswere made in Ohio and elsewhere, and funds were transmittedthrough CompuServe in Ohio to Patterson in Texas. In effect,Patterson used CompuServe as a distribution center to markethis software. When Patterson threatened litigation over alleg-edly infringing CompuServe software, CompuServe filed suitin Ohio seeking a declaratory judgment of noninfringement.The court found that Patterson's relationship with Compu-Serve as a software provider and marketer was a crucial indi-cator that Patterson had knowingly reached out to Compu-Serve's Ohio home and benefitted from CompuServe's han-dling of his software and fees. Because Patterson had chosento transmit his product from Texas to CompuServe's systemin Ohio, and that system provided access to his software toothers to whom he advertised and sold his product, the courtconcluded that Patterson purposefully availed himself of theprivilege of doing business in Ohio.By contrast, the defendant in Bensusan owned a small jazzclub known as "The Blue Note" in Columbia, Missouri. Hecreated a general access5 web page that contained informationabout the club in Missouri as well as a calendar of events andticketing information. Tickets were not available through theweb site, however. To order tickets, web browsers had to usethe names and addresses of ticket outlets in Columbia or atelephone number for charge-by-phone ticket orders, whichwere available for pick-up on the night of the show at theBlue Note box office in Columbia. Bensusan was a New Yorkcorporation that owned "The Blue Note," a popular jazz clubin the heart of Greenwich Village. Bensusan owned the rightsto the "The Blue Note" mark. Bensusan sued King for trade-mark infringement in New York. The district court distin-guished King's passive web page, which just postedinformation, from the defendant's use of the Internet inCompuServe by observing that whereas the Texas Internetuser specifically targeted Ohio by subscribing to the service,entering into an agreement to sell his software over the Inter-net, advertising through the service, and sending his softwareto the service in Ohio, King has done nothing to purposefully avail himself of the benefits of New York. King, like numerous others, simply created a Web site and permitted any- one who could find it to access it. Creating a site, like placing a product into the stream of commerce, may be felt nationwide-or even worldwide-but, with- out more, it is not an act purposefully directed toward the forum state.Bensusan, 937 F. Supp. at 301 (citing the plurality opinion inAsahi Metal Indus. Co. v. Superior Court,
480 U.S. 102
, 112(1992)). Given these facts, the court reasoned that the argu-ment that the defendant "should have foreseen that userscould access the site in New York and be confused as to therelationship of the two Blue Note clubs is insufficient to sat-isfy due process." Id. at 301.[5] "Interactive" web sites present somewhat differentissues. Unlike passive sites such as the defendant's inBensusan, users can exchange information with the host com-puter when the site is interactive. Courts that have addressedinteractive sites have looked to the "level of interactivity andcommercial nature of the exchange of information that occurson the Web site" to determine if sufficient contacts exist towarrant the exercise of jurisdiction. See, e.g., Zippo Mfg. Co.v. Zippo Dot Com, Inc., 952 F. Supp. 1119, 1124 (W.D. Pa.1997) (finding purposeful availment based on Dot Com'sinteractive web site and contracts with 3000 individuals andseven Internet access providers in Pennsylvania allowingthem to download the electronic messages that form the basisof the suit); Maritz, Inc. v. Cybergold, Inc., 947 F. Supp.1328, 1332-33 (E.D. Mo.) (browsers were encouraged to addtheir address to a mailing list that basically subscribed theuser to the service), reconsideration denied, 947 F. Supp.2448 (1996).[6] Cybersell AZ points to several district court decisionswhich it contends have held that the mere advertisement orsolicitation for sale of goods and services on the Internet givesrise to specific jurisdiction in the plaintiff's forum. However,so far as we are aware, no court has ever held that an Internetadvertisement alone is sufficient to subject the advertiser tojurisdiction in the plaintiff's home state. See, e.g., Smith v.Hobby Lobby Stores, 968 F. Supp. 1356 (W.D. Ark. 1997) (nojurisdiction over Hong Kong defendant who advertised intrade journal posted on the Internet without sale of goods orservices in Arkansas). Rather, in each, there has been"something more" to indicate that the defendant purposefully(albeit electronically) directed his activity in a substantial wayto the forum state.Inset Systems, Inc. v. Instruction Set, Inc., 937 F. Supp. 161(D. Conn. 1996), is the case most favorable to Cybersell AZ'sposition. Inset developed and marketed computer softwarethroughout the world; Instruction Set, Inc. (ISI) providedcomputer technology and support. Inset owned the federaltrademark "INSET"; but ISI obtained "INSET.COM" as itsInternet domain address for advertising its goods and services.ISI also used the telephone number "1-800-US-INSET." Insetlearned of ISI's domain address when it tried to get the sameaddress, and filed suit for trademark infringement in Connect-icut. The court reasoned that ISI had purposefully availeditself of doing business in Connecticut because it directed itsadvertising activities via the Internet and its toll-free numbertoward the state of Connecticut (and all states); Internet sitesand toll-free numbers are designed to communicate with peo-ple and their businesses in every state; an Internet advertise-ment could reach as many as 10,000 Internet users withinConnecticut alone; and once posted on the Internet, an adver-tisement is continuously available to any Internet user.Cybersell AZ further points to the court's statement inEDIAS Software International, L.L.C. v. BASIS InternationalLtd., 947 F. Supp. 413 (D. Ariz. 1996), that a defendant"should not be permitted to take advantage of modern tech-nology through an Internet Web page and forum and simulta-neously escape traditional notions of jurisdiction. " Id. at 420.In that case, EDIAS (an Arizona company) alleged thatBASIS (a New Mexico company) sent advertising and defam-atory statements over the Internet through e-mail, its webpage, and forums. However, the court did not rest its mini-mum contacts analysis on use of the Internet alone; in addi-tion to the Internet, BASIS had a contract with EDIAS, itmade sales to EDIAS and other Arizona customers, and itsemployees had visited Arizona during the course of the busi-ness relationship with EDIAS.[7] Some courts have also given weight to the number of"hits" received by a web page from residents in the forumstate, and to other evidence that Internet activity was directedat, or bore fruit in, the forum state. See, e.g., Heroes, Inc. v.Heroes Found., 958 F. Supp. 1 (D.D.C. 1996) (web page thatsolicited contributions and provided toll-free telephone num-ber along with the defendant's use on the web page of theallegedly infringing trademark and logo, along with othercontacts, provided sustained contact with the District),amended by No. Civ.A. 96-1260(TAF) (1997); Pres-Kap, Inc.v. System One, Direct Access, Inc., 636 So.2d 1351 (Fla. Dist.Ct. App. 1994) (declining jurisdiction where defendant con-sumer subscribed to plaintiff's travel reservation system butwas solicited and serviced instate by the supplier's local rep-resentative).[8] In sum, the common thread, well stated by the districtcourt in Zippo, is that "the likelihood that personal jurisdictioncan be constitutionally exercised is directly proportionate tothe nature and quality of commercial activity that an entityconducts over the Internet." Zippo, 952 F. Supp. at 1124.B[9] Here, Cybersell FL has conducted no commercial activ-ity over the Internet in Arizona. All that it did was post anessentially passive home page on the web, using the name"CyberSell," which Cybersell AZ was in the process of regis-tering as a federal service mark. While there is no questionthat anyone, anywhere could access that home page andthereby learn about the services offered, we cannot see howfrom that fact alone it can be inferred that Cybersell FL delib-erately directed its merchandising efforts toward Arizona resi-dents.[10] Cybersell FL did nothing to encourage people in Ari-zona to access its site, and there is no evidence that any partof its business (let alone a continuous part of its business) wassought or achieved in Arizona. To the contrary, it appears tobe an operation where business was primarily generated bythe personal contacts of one of its founders. While those con-tacts are not entirely local, they aren't in Arizona either. NoArizonan except for Cybersell AZ "hit" Cybersell FL's website. There is no evidence that any Arizona resident signed upfor Cybersell FL's web construction services. It entered intono contracts in Arizona, made no sales in Arizona, receivedno telephone calls from Arizona, earned no income from Ari-zona, and sent no messages over the Internet to Arizona. Theonly message it received over the Internet from Arizona wasfrom Cybersell AZ. Cybersell FL did not have an"800" num-ber, let alone a toll-free number that also used the "Cybersell"name. The interactivity of its web page is limited to receivingthe browser's name and address and an indication of interest-- signing up for the service is not an option, nor did anyonefrom Arizona do so. No money changed hands on the Internetfrom (or through) Arizona. In short, Cybersell FL has done noact and has consummated no transaction, nor has it performedany act by which it purposefully availed itself of the privilegeof conducting activities, in Arizona, thereby invoking the ben-efits and protections of Arizona law.[11] We therefore hold that Cybersell FL's contacts areinsufficient to establish "purposeful availment. " Cybersell AZhas thus failed to satisfy the first prong of our three-part testfor specific jurisdiction. We decline to go further solely on thefooting that Cybersell AZ has alleged trademark infringementover the Internet by Cybersell FL's use of the registered name"Cybersell" on an essentially passive web page advertisement.Otherwise, every complaint arising out of alleged trademarkinfringement on the Internet would automatically result inpersonal jurisdiction wherever the plaintiff's principal placeof business is located. That would not comport with tradi-tional notions of what qualifies as purposeful activity invok-ing the benefits and protections of the forum state. SeePeterson v. Kennedy, 771 F.2d 1244, 1262 (9th Cir. 1985)(series of phone calls and letters to California physicianregarding plaintiff's injuries insufficient to satisfy first prongof test).III[12] Cybersell AZ also invokes the "effects" test employedin Calder v. Jones,
465 U.S. 783
(1984), and Core-Vent Corp.v. Nobel Industries, 11 F.3d 1482 (9th Cir. 1993), with respectto intentional torts directed to the plaintiff, causing injurywhere the plaintiff lives. However, we don't see this as aCalder case. Because Shirley Jones was who she was (afamous entertainer who lived and worked in California) andwas libeled by a story in the National Enquirer, which waspublished in Florida but had a nationwide circulation with alarge audience in California, the Court could easily hold thatCalifornia was the "focal point both of the story and of theharm suffered" and so jurisdiction in California based on the"effects" of the defendants' Florida conduct was proper.Calder,
465 U.S. at 789
. There is nothing comparable aboutCybersell FL's web page. Nor does the "effects " test applywith the same force to Cybersell AZ as it would to an individ-ual, because a corporation "does not suffer harm in a particu-lar geographic location in the same sense that an individualdoes." Core-Vent, 11 F.3d at 1486. Cybersell FL's web pagesimply was not aimed intentionally at Arizona knowing thatharm was likely to be caused there to Cybersell AZ. 6IV[13] We conclude that the essentially passive nature ofCybersell FL's activity in posting a home page on the WorldWide Web that allegedly used the service mark of CybersellAZ does not qualify as purposeful activity invoking the bene-fits and protections of Arizona. As it engaged in no commer-cial activity and had no other contacts via the Internet orotherwise in Arizona, Cybersell FL lacks sufficient minimumcontacts with Arizona for personal jurisdiction to be assertedover it there. Accordingly, its motion to dismiss for lack ofpersonal jurisdiction was properly granted.AFFIRMED.
___________________________FOOTNOTES *Honorable Harlington Wood, Jr., Senior Circuit Judge, United StatesCourt of Appeals for the Seventh Circuit, sitting by designation.1 Spamming refers to the posting indiscriminately of advertisements tonews groups on the web. Unlike crossposting, spamming individuallyposts the advertisement to each news group, requiring the recipient todelete the message from each news group to which she has subscribed.2 A hypertext link allows a user to move directly from one web locationto another by using the mouse to click twice on the colored link.3 In its October 21, 1996 judgment, the district court dismissed both ofthe consolidated actions.4 Since Bensusan was decided on the basis of New York's long-arm stat-ute (which requires presence in the forum and is therefore more stringentthan due process), its holding is not instructive, but the district court'sanalysis is. The district court dismissed for lack of personal jurisdictionunder the long-arm statute as well as on due process grounds, while theSecond Circuit affirmed on the statute and did not discuss the constitu-tional issue.5 A general access site requires no authentication or access code forentry. Bensusan, 937 F. Supp. at 297. Thus, the site is accessible to anyonewho has access to the Internet.6 Likewise unpersuasive is Cybersell AZ's reliance on Panavision Inter-national v. Toeppen, 938 F. Supp. 616 (C.D. Cal. 1996), where the courtfound the "purposeful availment" prong satisfied by the effects felt in Cal-ifornia, the home state of Panavision, from Toeppen's alleged out-of-statescheme to register domain names using the trademarks of California com-panies, including Panavision, for the purpose of extorting fees from them.Again, there is nothing analogous about Cybersell FL's conduct. the end