Re: [ga] 4th Circuit Court of Appeals Reverses Barcelona.com Deci sion

[Andy Gardner <andy@navigator.co.nz>]

On Tuesday, June 3, 2003, at 08:20  AM, Michael Froomkin - U.Miami 
School of Law wrote:

> In the US, at least, we're approaching this question pretty much the 
> way
> we do a standard jurisdictional analysis: as we move away from the
> superficial active/passive distinction and go to a fuller, more
> traditional, apporach, we try to figure out the intent of the party 
> from
> the circumstantial evidence (are they seeking to 'avail themselves' of 
> the
> target jurisdiction market or laws). In most cases it's not hard; in
> marginal cases it is very hard, but nothing's perfect.
>
> If there is local presence, it's very easy.
>
> If they are sending goods or services into the jurisdiction for
> compensation knowingly, it's easy.
>
> If they are targeting ads to the jurisdiction, it's pretty easy.
>
> If they are selling intangibles (e.g. downloaded software) without 
> worrying
> about where it's going, and substantial quantities of it are going into
> the jurisdiction, we say it's easy on the 'really should have known'
> theory if nothing else.
>
> If the sales are negligible it might be hard, but it's clear from
> non-Internet cases that a very small number of sales won't create 
> general
> jurisdiction.
>
> If there are no sales, just exchanges of information, there probably 
> isn't
> jurisdiction other than for libel.  The issue of trademark doesn't 
> arise
> here since it's rare to have "in commerce" activities without sales,
> though it might be logically possible.  (I say this with less 
> confidence
> than all the above, as I've not looked recently at the case law, and 
> some
> of the cases I know of are confused on this issue.)

What would happen if the TM holder was in the USA, and the domain owner 
had a page (say) simply listing eBay auctions pertinent to the mark in 
question?

Infringement if the domain owner is in the USA?

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