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ATTENTION: YOUR COMMENT (the last one OPINION) as much words as you can write. Please

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Pebble Beach Company v. Caddy

453 F.3d 1151 (2006) United States Court of Appeals (9th Cir.)

BACKGROUND AND FACTS

Plaintiff Pebble Beach Company (Pebble Beach) is a well-known golf course and resort located in Monterey County, California. The golf resort has used "Pebble Beach" as its trade name since 1956. Pebble Beach contended that the trade name has acquired secondary meaning in the United States and the United Kingdom. Pebble Beach operates a website located at www.pebblebeach.com. Defendant Caddy ran a three-room bed and breakfast, restaurant, and bar located in southern England. Caddy's business operation was located on a cliff overlooking the pebbly beaches of England's south shore, in a town called Barton-on-Sea.The name of Caddy's operation was "Pebble Beach."Caddy advertised his services, which did not include a golf course, at his website, www.pebblebeach-uk.com. Caddy's website included information about the accommodations he provided, including lodging rates in pounds sterling, a menu, and a wine list. The website was not interactive. It did not have a reservation system and did not allow potential guests to book rooms or pay for services online. Visitors to the website who had questions about Caddy's services were required to fill out an online inquiry form. Pebble Beach sued Caddy for infringement and dilution of its "Pebble Beach" trademark in the United States District Court for the Central District of California. Caddy moved to dismiss the complaint for lack of personal jurisdiction. The district court granted Caddy's motion, and Pebble Beach appealed to the United States Court of Appeals for the Ninth

TROTT, NINTH CIRCUIT JUDGE

The general rule is that personal jurisdiction over a defendant is proper if it is permitted by a long-arm statute and if the exercise of that jurisdiction does not violate federal due process ... For due process to be satisfied, a defendant, if not present in the forum, must have "minimum contacts" with the forum state such that the assertion of jurisdiction "does not offend traditional notions of fair play and substantial justice."Int'l Shoe Co. v. Washington, 326 U.S. 310, 315, 66 S.Ct. 154, 90 L. Ed. 95 (1945).

In this circuit, we employ the following three-parttest to analyze whether a party's "minimum contacts" meet the Supreme Court's directive. This "minimum contacts" test is satisfied when (1) the defendant has performed some act or consummated some transaction within the forum or otherwise purposefully availed himself of the privileges of conducting activities in the forum, (2) the claim arises out of or results from the defendant's forum-related activities, and (3) the exercise of jurisdiction is reasonable.

Bancroft & Masters, Inc. v. Augusta Nat'l Inc., 223F.3d 1082, 1086 (9th Cir. 2000).

* * *

In order to satisfy the first prong of the "minimum contacts" test, Pebble Beach must establish either that Caddy (1) purposefully availed himself of the privilege of conducting activities in California, or the United States as a whole, or (2) that he purposefully directed its activities toward one of those two forums.

Pebble Beach fails to identify any conduct by Caddy that took place in California or in the United States that adequately supports the availment concept. Evidence of availment is typically action taking place in the forum that invokes the benefits and protections of the laws in the forum. Evidence of direction generally consists ofaction taking place outside the forum that is directed at the forum. All of Caddy's action identified by Pebble Beach is action taking place outside the forum. Thus, if anything, it is the type of evidence that supports a purposeful direction analysis. Accordingly, we reject Pebble Beach's assertion that Caddy has availed himself of the jurisdiction of the district court ... and proceed only to determine whether Caddy has purposefully directed his action toward one of two applicable forums.

In Calder v. Jones, the Supreme Court held that a foreign act that is both aimed at and has effect in the forum satisfies the first prong of the specific jurisdiction analysis 465 U.S. 783, 104 S. Ct. 1482, 79 L. Ed. 2d804 (1984). We have commonly referred to this holding as the "Calder effects test." To satisfy this test the defendant must have (1) committed an intentional act, which was (2) expressly aimed at the forum state, and(3) caused harm, the brunt of which is suffered and which the defendant knows is likely to be suffered in the forum state. However ... we have warned courts not to focus too narrowly on the test's third prong-the effects prong-holding that "something more" is needed in addition to a mere foreseeable effect. Bancroft, 223 F.3d at 1087... . Thus, the determinative question here is whether Caddy's actions were "something more"precisely, whether his conduct was expressly aimed at California or alternatively the United States.

* * *

In support of its contention that Caddy has expressly aimed conduct at California, Pebble Beach ... asserts that Caddy's website and domain name are sufficient to satisfy the express aiming standard that it is required to meet. We disagree.

* * *

In Rio Properties, Inc. v. Rio Int'l Interlink, 284 F.3d1007, 1020 (9th Cir. 2000), we cited Cybersell, Inc. v.Cybersell, Inc., 130 F.3d 414, 418-20 (9th Cir. 1997), for the proposition that when a "website advertiser [does]nothing other than register a domain name and post an essentially passive website" and nothing else is done "to encourage residents of the forum state," there is no personal jurisdiction... . These cases establish two salient points. First, there can be no doubt that we still require "something more" than just a foreseeable effect to conclude that personal jurisdiction is proper. Second, an Internet domain name and passive website alone are not "something more," and, therefore, alone are not enough to subject a party to jurisdiction.

* * *

Even if Pebble Beach is unable to show purposeful direction as to California, Pebble Beach can still establish jurisdiction if Caddy purposefully directed his action at the United States.

* * *

Pebble Beach claims that because Caddy selected a".com" domain name it shows that the United States was his "primary" market and that he is directly advertising his services to the United States. Second, Pebble Beach asserts that his selection of the name "Pebble Beach" shows the United States is his primary target because "Pebble Beach" is a famous United States trademark. Third, Pebble Beach asserts that Caddy's intent to advertise to the United States is bolstered by the fact that Caddy's facilities are located in a resort town that caters to foreigners, particularly Americans. Finally, Pebble Beach asserts that a majority of Caddy's business in the past has been with Americans.

Pebble Beach's arguments focus too much on the effects prong and not enough on the "something more" requirement. We conclude that the selection of a particular domain name is insufficient by itself to confer jurisdiction over a non-resident defendant where the forum is the United States. The fact that the name "Pebble Beach" is a famous mark known worldwide is of little practical consequence when deciding whether action is directed at a particular forum via the world wide web. Also of minimal importance is Caddy's selection of a ".com" domain name instead of a more specific United Kingdom or European Union domain. To suggest that ".com" is an indicator of express aiming at the United States is even weaker than the counter assertion that having "U.K." in the domain name, which is the case here, is indicative that Caddy was only targeting his services to the United Kingdom. Neither provides much more than a slight indication of where a website may be located and does not establish to whom the website is directed.

This leaves Pebble Beach's arguments that because Caddy's business is located in an area frequented by Americans, and because he occasionally services Americans, jurisdiction is proper. These arguments fail for the same reasons; they go to effects rather than express aiming. Pebble Beach's arguments do have intuitive appeal-they suggest a real effect on Americans. However, as reiterated throughout this opinion, showing "effect" satisfies only the third prong of the Calder testit is not the "something more" that is required... . The "something more" additional requirement is important simply because the effects cited may not have been caused by the defendant's actions of which the plaintiff complains. Here, although Caddy may serve vacationing Americans, there is not a scintilla of evidence indicating that this patronage is related to either Caddy's choice of a domain name or the posting of a passive website.

Decision.

Caddy did not purposefully avail himself of U.S. law nor expressly aim his conduct at California or the United States. Therefore, he is not subject to the personal jurisdiction of the district court. A passive web-site and domain name alone do not satisfy the effects test, and there was no other action expressly aimed at California or the United States that would justify personal jurisdiction. Pebble Beach's complaint was properly dismissed.