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Blue Water International, Inc. v. Hattrick's Irish Sports Pub, LLC

United States District Court, M.D. Florida

September 21, 2017




         Several “Hattrick's” bars serve food and alcohol in the United States.[1] Most market themselves as sports bars (in hockey and soccer, a “hat trick” describes a player's scoring three goals in one game). On this occasion, Hattrick's of Tampa, Florida sues (Doc. 12) Hattrick's of O'Fallon, Missouri for statutory and common law trademark infringement and unfair competition and alleges that the Missouri bar's name and use of a shamrock[2] confuse consumers in some unspecified market. A block from the Tampa Convention Center, the Tampa bar allegedly discovered the Missouri bar after several convention-goers purportedly inquired about the Tampa bar's relation to the Missouri bar. Under Rules 12(b)(2) and (3), Federal Rules of Civil Procedure, the Missouri bar moves (Docs. 7 and 19) to dismiss for lack of personal jurisdiction and improper venue.[3]


         Little or no disagreement appears about the facts. Instead, the parties dispute whether the facts establish the propriety of personal jurisdiction in Florida over the Missouri bar, which sells no food, alcohol, or merchandise in Florida; maintains no office or restaurant in Florida; employs nobody in Florida; purchases no newspaper, television, radio, mail, magazine, or Internet advertisement targeting Florida; and maintains no bank account in Florida. (Doc. 7-2) The Missouri bar maintains accounts on Twitter and Facebook; on Twitter, the Missouri bar “follows” several Florida sports teams, including the Lightning, the Buccaneers, and the Rays.[4] Also, Yelp and maintain pages that permit the public to rate and to read reviews about the Missouri bar. Despite the Missouri bar's lack of contact with Florida, the Tampa bar argues that the Missouri bar subjected itself to personal jurisdiction in Florida by following the Florida sports teams on Twitter and by posting on Facebook. Implicit in the Tampa Bar's argument is the availability in Florida of the Internet, through which a Floridian might[5] access the Facebook, Twitter, Yelp, or TripAdvisor pages.

         The exercise of personal jurisdiction requires both statutory authorization and constitutional sanction. Venetian Salami Co. v. Parthenais, 554 So.2d 499 (Fla. 1989). The Missouri bar challenges under both the Florida long-arm statute and the Due Process Clause the exercise of personal jurisdiction in Florida. I. Statutory authorization First, the Tampa bar argues that the Florida long-arm statute subjects the Missouri bar to general jurisdiction in Florida. (Doc. 13 at 12) Under Section 48.193(2), Florida Statutes, general jurisdiction requires “substantial and not isolated activity within this state.” Interpreting that phrase, the Eleventh Circuit explains that a “corporation cannot be subject to general jurisdiction in a forum unless the corporation's activities in the forum closely approximate the activities that ordinarily characterize a corporation's place of incorporation or principal place or business.” Carmouche v. Tamborlee Mgmt., Inc., 789 F.3d 1201, 1205 (11th Cir. 2015).

         Incorporated in Missouri (Doc. 13-4), the Missouri bar operates only in O'Fallon, Missouri. (Doc. 7-2 at 1) As explained above, the Missouri bar maintains no restaurant or office in Florida, sells nothing in Florida, employs nobody in Florida, issues no paycheck in Florida, maintains no bank account in Florida, and directs no advertising at Florida. (Doc. 7-2) Nothing about the Missouri bar's relation with Florida “closely approximate[s]” a principal place of business in Florida. Cf. Perkins v. Benguet Consol. Min. Co., 342 U.S. 437, 419-20 (1952) (affirming the exercise of general jurisdiction in Ohio over a defendant that corresponded from Ohio, maintained a bank account in Ohio, withdrew money in Ohio from the bank account, directed business from Ohio, and held directors' meetings in Ohio).

         Second, the Tampa bar invokes Section 48.193(1)(a)(2), which subjects to the jurisdiction of a Florida court a defendant that “commit[s] a tortious act within this state.” The considered weight of authority holds that trademark infringement and unfair competition occur “where the passing off occurs, i.e, where the deceived customer buys the defendant's product in the belief that he is buying the plaintiff's.” Vanity Fair Mills, Inc. v. T. Eaton Co., 234 F.2d 633, 639 (2d Cir. 1956) (Waterman, J.); accord Cottman Transmission Sys., Inc. v. Martino, 36 F.3d 291, 294-95 (3d Cir. 1994) (Weis, J.); 6 McCarthy on Trademarks & Unfair Competition § 32:38.40 (4th ed. 2017) (“Today, almost all courts follow the [Vanity Fair] rule that a claim of trademark infringement takes place where the allegedly infringing sales occur.”). Because the defendant undisputedly sells food, alcohol, and merchandise only in Missouri, the alleged trademark infringement and unfair competition occurred in Missouri.[6]

         Nothing in Licciardello v. Lovelady, 544 F.3d 1280 (11th Cir. 2008), compels a contrary conclusion. Although Licciardello states that the alleged infringement “occurred in Florida by virtue of the website's accessibility in Florida” Licciardello observes elsewhere that the defendant's “website offered CD's for sale that provided management advice.”[7] And evidence in Licciardello suggested that the defendant earned at least several thousand dollars from the sale in Florida of allegedly infringing albums. Similarly, in Nida Corp. v. Nida, 118 F.Supp.2d 1223, 1226 (M.D. Fla. 2003) (Presnell, J.), the defendant admittedly sold products in Florida. In contrast, the Missouri bar undisputedly sells no food, alcohol, or merchandise in Florida specifically or on the Internet generally. (Doc. 7-2) The Tampa bar cites a Facebook post by the Missouri bar that announces: “New shirts are in! Grab one while they last!” (Doc. 13-6) But no link to purchase a shirt online appears in the post, and an owner of the Missouri bar declares that it sells nothing online. (Doc. 7-2) In sum, the well-pleaded factual allegations and the record evidence fail to establish the applicability of Sections 48.193(2) or 48.193(1)(a)(2).

         II. Due process

         Even if Florida's long-arm statute authorizes jurisdiction in Florida over the Missouri bar, the exercise of personal jurisdiction violates due process in this instance. Under threat of a default judgment, a summons imposes on a defendant the burden of appearing and defending an action. Due process, from which a long line of decisions discerns the requirement of “minimum contacts, ” reduces the likelihood that a summons forces a person to litigate in an inconvenient or distant forum. In other words, due process permits a person to predict “with some minimum assurance . . . where” his conduct “will and will not render [him] liable to suit.” World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297 (1980); accord Int'l Shoe Co. v. Washington, 326 U.S. 310 (1945). If a person prefers not to litigate in a forum, he can elect not to conduct business there, reasonably confident that he will not face protracted litigation in that forum.

         The Tampa bar advances four arguments why the exercise of personal jurisdiction comports with due process: (1) the Missouri bar committed an “intentional tort” in Florida; (2) the tort resulted in harm to the plaintiff, which resides in Florida; (3) a Florida resident can access the Missouri bar's Facebook, Twitter, Yelp, and TripAdvisor accounts; and (4) the Missouri bar follows several Florida sports teams on Twitter. The first two arguments ignore the Supreme Court's repeated guidance that the minimum-contacts determination depends on the location of the defendant's conduct rather than the location of the plaintiff's injury; the last two arguments impermissibly risk subjecting a defendant to suit throughout the United States.

         Citing Calder v. Jones, 465 U.S. 783 (1984), the Tampa bar's response (Doc. 13) in opposition emphasizes that the allegedly “intentional” tort harmed the plaintiff, which resides in Florida. Although several decisions arguably interpret Calder to authorize personal jurisdiction wherever the plaintiff suffers the “effects” of an intentional tort, a careful reading of Calder refutes that interpretation. In Calder, a Florida reporter researched and wrote an allegedly defamatory article about a California citizen. Before publication, the reporter telephonically interviewed several California residents and called the defendant's home in California to request comment about the forthcoming article. At publication, the Florida reporter knew that more than 600, 000 copies of the allegedly defamatory article would circulate in California.[8]

         Affirming the exercise in California of personal jurisdiction over the Florida reporter, Calder states that the “brunt of the [plaintiff's] harm . . . was suffered in California.” 465 U.S. at 789. But, again, Calder observes elsewhere that the “[t]he article was drawn from California sources.” If Calder's observation about the location of the “brunt of the [plaintiff's] harm” contributes to confusion whether the location of the plaintiff's injury can confer personal jurisdiction, Walden v. Fiore, 134 S.Ct. 1115 (2014), resolves the confusion: An analysis that considers the location of the plaintiff's injury “impermissibly allows a plaintiff's contacts with the defendant and the forum to drive the jurisdictional analysis.” 134 S.Ct. at 1124.

         Also, Calder involves defamation, which occurs wherever the defamatory statement circulates. Keeton v. Hustler Mag., Inc., 465 U.S. 770, 777 (1984). In other words, Calder's discussion of the location of the “effects” “was largely a function of the nature of the libel tort.” Walden, 134 S.Ct. at 1124 (interpreting Calder). As explained above, the weight of authority holds that trademark infringement and unfair competition occur not where the plaintiff suffers an injury but rather where the alleged infringer sells a product. Under Hanson v. Denckla, 357 U.S. 235 (1958), Calder, and Walden, the fact that the ...

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