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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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America Online Inc. v. Robert Pasieka, et al.

2004 Fla. App. Lexis 764, No. 1D03-2290, (Fla. App., 1st Dist., Jan. 29, 2004)

Affirming the court below, Florida District Court of Appeal holds that America Online's ("AOL") forum selection clause, which mandates that all claims relating to the use of AOL be brought in Virginia, is unenforceable with respect to a class action lawsuit brought under two Florida consumer protection statutes - the Florida Deceptive and Unfair Trade Practices Act (FDUTPA) and the Florida Free Gift Advertising Law (FFGAL).  The Appellate court accordingly affirmed the denial of AOL's motion to dismiss for improper venue.

In this putative class action, plaintiffs brought claims under the FDUTPA and FFGAL arising out of plaintiffs' alleged difficulty in canceling their subscriptions with AOL, and of continued billing for such subscriptions post cancellation.  The complaint also accuses AOL of deceptive and unfair practices in their customer retention procedures. 

AOL moved to dismiss for improper venue, pointing to a forum selection clause in their Member Agreement which mandates that all claims arising out of the use of AOL be brought in Virginia.

The lower court denied AOL's motion, and the Appellant Court affirmed.  The Court grounded its decision on the unavailability of similar remedies in Virginia, particularly the ability to pursue such claims by class action.  As such, giving effect to the forum selection clause would undermine the effectiveness and purpose of the statutes.  Said the Court.

Various other courts have declined to enforce this same forum selection clause in these circumstances, involving class action lawsuits under consumer protection statutes.  Such courts have refused to give effect to the clause where a similar action and comparable remedy could not be pursued in a foreign state.  (citations omitted).  And the California court in America Online v. Superior Crt., 90 Cal. Rpt.2d 699 (Cal. Ct. App. 2001) noted that the Virginia statutes did not permit a comparable remedy to that which might be obtained in California.  And the Court placed even greater significance on the fact that Virginia did not permit such a claim to be pursued as a class action.

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