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Designer Skin LLC v. S & L Vitamins, Inc., et al.
Unauthorized internet reseller of plaintiff’s products is not guilty of trademark infringement, and does not cause actionable initial interest confusion, by using plaintiff’s trademarks in meta tags of website at which plaintiff’s and its competitors’ products are sold, and in...

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Conseco, Inc., et al. v. Russ Hickerson

698 N.E.2d 816 (Indiana Court of Appeals, August 14, 1998)

Defendant, a Texas resident, operated a website on which he "sought information concerning fraud or other evidence of unfair treatment by Philadelphia Life," one of plaintiff's subsidiaries, to aid in pursuing a lawsuit against Philadelphia Life. Defendant's website contained a mail-to link that permitted users to send e-mail to defendant. The site did not advertise or offer to sell any products, nor did it solicit donations.

Asserting that defendant's use on his site of its trademark "Conesco" constituted defamation, trademark infringement, dilution and commercial disparagement, plaintiff commenced suit. Plaintiff brought suit in Indiana, where its principal headquarters were located. Plaintiff argued that the Indiana District Court had personal jurisdiction over the non-resident defendant because the effects of his allegedly tortious acts, and the injury allegedly caused thereby, were felt by plaintiff in Indiana. Defendant's sole contact with Indiana was via his website.

The court rejected this argument, and held that it lacked personal jurisdiction over the defendant. Said the court:

We ... decline to apply the "effects test" because we believe that it is not readily applicable in cases involving national or international corporations and the Internet. The "effects test" does not apply with the same force to a corporation as it does to an individual because a corporation's harm is generally not located in a particular geographic location as an individual's harm would be. In this case, Conesco is a national corporation with insurance subsidiaries and policyholders located throughout the United States. The potential harm to be suffered by Hickerson's alleged defamation would not only be suffered in Indiana, but throughout the nation.

The defendant's contacts with Indiana were insufficient to permit the court to exercise jurisdiction over him.

Hickerson's only contact with Indiana was his discussion of Conesco in his web site. Hickerson did not direct any advertising, send any e-mails or letters, or make any phone calls to Indiana. In addition, Hickerson had never physically visited or resided in Indiana. ... We hold that Hickerson's discussion of Conesco in his web site, without any other contacts, was not a minimum contact sufficient to allow Indiana to exercise personal jurisdiction over him.

The full text of the court's decision can be found on a web site maintained by the State of Indiana.

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