A recent decision by the First Circuit in a trademark infringement case, Plixer Intl v. Scrutinizer GmbH (1st Cir 2018) held that a German website used to sell software services, had done substantial business with U.S. customers, and was subject to a trademark infringement suit in the U.S. by another company claiming that the trademark used to market the services infringed its rights.
This was the case despite the fact that the website did not specifically target the U.S., but merely offered the services to the world at large (to be paid in Euros). What clinched the finding of jurisdiction was that the company had done significant U.S. business (about $200,000) over three years.
Although the site had a forum selection clause requiring its customers to litigate any disputes in Germany, the plaintiff was not a customer – its claim of trademark infringement lay completely outside any contractual relationship the German company had with its customers.
The decision is significant not only for foreign companies, but also for website operators in the U.S. Websites that do business with any states might subject their owners to jurisdiction where the site does business – even if the site is not specifically targeted to particular states.
The plaintiff in the Plixer case brought its claims in the District of Maine, hardly a convenient forum for many large companies. It is easy to see how, under the same reasoning, a California or New York based website that does significant business throughout the country could be subject to suit in many jurisdictions.