American Information Corp. v. American Infometrics, No. CIV. JFM-00-3288.

• Decision Date: 12 April 2001
• Docket Number: No. CIV. JFM-00-3288.
• Citation: 139 F.Supp.2d 696
• Parties: AMERICAN INFORMATION CORPORATION v. AMERICAN INFOMETRICS, INC.
• Court: U.S. District Court — District of Maryland

139 F.Supp.2d 696

AMERICAN INFORMATION CORPORATION v. AMERICAN INFOMETRICS, INC.

No. CIV. JFM-00-3288.

United States District Court, D. Maryland.

April 12, 2001.

Sherry H. Flax, Saul, Ewing, Weinburg & Green, Baltimore, MD, for plaintiff.

Harvey S. Jacobs, Donna M. Coles Johnson, Jacobs and Associates, Washington, DC, for defendant.

MEMORANDUM OPINION

MOTZ, District Judge.

In this case American Information Corporation asserts federal trademark, Maryland common-law, and Maryland statutory claims against American Infometrics, Inc., for the latter's use of the service mark "AINET" and the World Wide Web address "ainet.com." American Infometrics has moved to dismiss all claims for lack of personal jurisdiction. F.R. Civ. P. 12(b)(2). For the reasons given below, the motion will be granted.

I.

American Information Corporation, based in Calverton, Maryland, sells Internet access services, hosting of Web sites, design of Web sites, and security services for Web sites. The company has grossed over $3 million, selling to customers "throughout the United States and the world, including in Maryland." Compl. at ¶¶ 9, 12. The company has registered the service mark "AINET" with the United States Patent and Trademark Office. Compl. at ¶ 10.

American Infometrics is based in Modesto, California, and sells Internet access and services to individuals and corporations. It maintains a World Wide Web site identified as "ainet.com" that can be viewed by anyone with access to the World Wide Web, whether the viewer is located in Maryland or anywhere in the world. The Web site provides some information and advertising to the general public, including links to search engines and price lists for prospective residential and commercial customers, and some information and services for paying customers, including usage records and technical support. A visitor to the Web site may enter his or her basic contact information, including name, address, phone, and e-mail, into a form, and the site promises a response from sales representatives of American Infometrics within a few days to determine "availability" of the company's services in the visitor's area. A visitor may submit his or her resume for jobs available at American Infometrics. A visitor may not enter into a contract, purchase goods or services, or transact business on the Web site.

The site includes small banners proclaiming that two Microsoft products are used to run the site. Opp. Ex. (Mar. 2, 2001) (www.ainet.com). These could be construed as advertisements.

The site includes several references to service within California.¹ In addition, in the past, the site has proclaimed "AI PROVIDES DSL ACROSS CALIFORNIA & U.S.!" as a central link on its home page, www.ainet.com. Opp. Ex. (Feb. 28, 2001).² (As of March 1, 2001 (when part of the exhibit to the plaintiff's opposition was apparently printed) and March 28, 2001 (when the Court took judicial notice of the site's contents), the only such link on the site read only "AI PROVIDES DSL ACROSS CALIFORNIA!" Opp. Ex. (Mar. 1, 2001) (www.ainet.com).) Finally, the site notes that customers of American Infometrics can gain access to their "ainet.com e-mail from any computer with Internet access." Opp. Ex. (Mar. 1, 2001) (www.ainet.com/start.html).

The president of American Infometrics, Andrew B. Goreff, affirms that the company has never had a place of business, customers, licenses, or certification in Maryland. According to Goreff's affidavit, the company has never had an inquiry about its services from anyone in Maryland, and has never solicited customers in Maryland. Its employees, officers, agents, and directors have never traveled to Maryland to conduct company business.

II.

American Information Corporation has the burden to show, by a preponderance of the evidence, that this Court has specific personal jurisdiction over American Infometrics.³ Atlantech Distribution Inc. v. Credit Gen. Ins. Co., 30 F.Supp.2d 534, 536 (D.Md.1998). As Maryland law permits long-arm jurisdiction to the fullest extent permitted by the limits of constitutional due process, Nichols v. G.D. Searle & Co., 991 F.2d 1195, 1199 (4th Cir.1993), the constitutional test for personal jurisdiction applies. If a party "purposefully avails itself of the privilege of conducting activities within" Maryland, "creat[ing] a `substantial connection' between" itself and Maryland, then such "instate activity creates `certain minimum contacts [with Maryland] such that maintenance of the suit [here] does not offend "traditional notions of fair play and substantial justice."'" Stover v. O'Connell Assocs., Inc., 84 F.3d 132, 136 (4th Cir. 1996) (citations omitted). American Information Corporation argues for specific personal jurisdiction based on both the "sliding scale" of Internet-based jurisdiction outlined in the leading case of Zippo Manufacturing v. Zippo Dot Com, 952 F.Supp. 1119 (W.D.Pa.1997), and the effects test of Calder v. Jones, 465 U.S. 783, 104 S.Ct. 1482, 79 L.Ed.2d 804 (1984).

American Information Corporation argues that American Infometrics's Web site presence alone creates specific jurisdiction.⁴ An entirely passive Web site cannot create jurisdiction in Maryland simply because it is theoretically available to Web users in Maryland and everywhere else.⁵ Atlantech Distribution, 30 F.Supp.2d 534; see also Virtuality L.L.C. v. Bata Ltd., 138 F.Supp.2d 677, 683-84 (D.Md. 2001) (dismissing, for lack of minimum contacts, a trademark case based on use of the allegedly confusing marks on a passive Web site). Even a passive Web site that uses someone else's trademark as an address does not necessarily generate jurisdiction. Panavision Int'l v. Toeppen, 141 F.3d 1316, 1322 (9th Cir.1998) (stating that "simply registering someone else's trademark as a domain name and posting a web site on the Internet is not sufficient to subject a party domiciled in one state to jurisdiction in another"). However, American Infometrics's Web site is not entirely passive; it does permit non-customers to inquire about available services and to apply for jobs.⁶

However, several circuits have ruled that the maintenance of a Web site comparable to that of American Infometrics, without more, does not subject a company to jurisdiction. GTE New Media Servs., Inc. v. BellSouth Corp., 199 F.3d 1343, 1347-50 (D.C.Cir.2000) (reviewing circuit cases); Mink v. AAAA Dev. L.L.C., 190 F.3d 333, 336-37 (5th Cir.1999) (finding a Web site from which a user could obtain a printable order form and corporate contact information did not create jurisdiction); Cybersell Inc. v. Cybersell Inc., 130 F.3d 414, 419 (9th Cir.1997) (finding no jurisdiction where a Web site's interactivity is limited to "receiving ... an indication of interest"). In the case at bar, noncustomers cannot interact with the Web site except to submit their contact information to inquire about available services or jobs, according to Goreff, and no one from Maryland has ever inquired,⁷ or been a customer of American Infometrics. On a company's Web site, neither the "mere existence of an e-mail link, without more," nor "receiving ... an indication of interest," without more, subjects the company to jurisdiction.⁸ Mink, 190 F.3d at 337 n. 1 (e-mail link); Cybersell, 130 F.3d at 419 (indication of interest). The ability of viewers to ask about the company's services, particularly in the absence of any showing that anyone in Maryland has ever done so, does not subject the company to jurisdiction here.

Fourth Circuit cases on minimum contacts support the view that the Web site of American Infometrics does not create jurisdiction in Maryland. A company's sales activities focusing "generally on customers located throughout the United States and Canada without focusing on and targeting" the forum state do not yield personal jurisdiction. ESAB Group, Inc. v. Centricut, Inc., 126 F.3d 617, 625 (4th Cir.1997); see also Stover, 84 F.3d 132 (ruling that a telephone hire of a Maryland company does not subject the hirer to jurisdiction in Maryland). Nor should a Web presence that permits no more than basic inquiries from Maryland customers, that has never yielded an actual inquiry from a Maryland customer, and that does not target Maryland in any way. As there is to date "no District Court of Cyberspace," Design88, 133 F.Supp.2d 873, 877-78, a contrary ruling would subject defendant to jurisdiction in every state in the country. See Atlantech Distribution, 30 F.Supp.2d at 537.

Where the plaintiff's showing of minimum contacts is low, as here, courts "may evaluate the burden on the defendant", "the forum state's interest in adjudicating the dispute", "the plaintiff's interest in obtaining convenient and effective relief", "the interstate judicial system's interest in obtaining the most efficient resolution of controversies", and the "shared interest of the several States in furthering fundamental substantive social policies." Pittsburgh Terminal Corp. v. Mid Allegheny Corp., 831 F.2d 522, 529 (4th Cir. 1987) (citations omitted); see also Burger King, 471 U.S. at 476-77, 105 S.Ct. 2174. These factors may "establish the reasonableness of jurisdiction upon a lesser showing of minimum contacts than would otherwise be required." 831 F.2d at 529. In the case at bar, the burden on the defendant at least balances the plaintiff's interest in convenience, and the availability of jurisdiction anywhere in the country, over anyone with a Web site that accepts a rudimentary form inquiry, hardly promotes the most efficient resolution of controversies. These other constitutional factors do not prop up the plaintiff's weak showing of minimum contacts.

III.

Separately, American Information Corporation argues that American Infometrics causes harm in Maryland, confusion as to the mark AINET, and that Maryland courts accordingly have jurisdiction over defendant. Arguably, if American Information Corporation's Maryland customers think of "AINET" as related to ...