May 27, 2008
Connecticut Blogger Not Subject to Texas Jurisdiction--Healix Infusion v. Helix Health
By Eric Goldman
Healix Infusion Therapy, Inc. v. Helix Health, LLC, 2008 WL 1883546 (S.D. Tex. Apr 25, 2008)
I've mentioned before that I try to avoid blogging about Internet jurisdictional cases, but occasionally an interesting jurisdictional case comes along. This one caught my attention because it involves the jurisdictional implications of blogging, a topic near and dear to my heart!
This case involves, at its core, a trademark dispute between Healix Infusion Therapy, a Texas company, and Helix Health, a New York company. Stephen Murphy is a Connecticut blogger with an unclear connection to Helix. According to this Zoominfo page, Murphy is the president and owner of Helix, but the court actually never says that, and the Helix Health page just lists Murphy as part of the team.
Whatever the relationship, Murphy is an active blogger at Gene Sherpas. It appears that his blog is not an official endeavor of Helix Health, and the court treats it as an independent blog.
Healix and Helix started mixing it up when Healix opposed Helix's federal trademark application. After some interaction, Healix sued both Murphy and Helix in Texas on several grounds, including claims against Murphy for Texas state anti-dilution and federal cybersquatting (ACPA). Murphy and Helix moved to dismiss for lack of jurisdiction, and Healix tried to support Texas jurisdiction by pointing to the reach of Murphy's blog. The court applied the Calder "Effects Test" rather than a more traditional minimum contacts test. Doing so, it concludes that Murphy, even as an active blogger, isn't subject to Texas jurisdiction for the state anti-dilution claim:
HIT argues that the following facts establish that Murphy expressly aimed his conduct at Texas residents through his blog: (1) in some of his posts Murphy has cited the work of Texas residents; (2) Murphy's blog contains a link to another Web site, ClustrMaps, that shows that many users from Texas have viewed Murphy's blog; (3) in his blog posts Murphy has acknowledged that a large number of his users reside in Texas, specifically Houston; (4) Murphy's site is “highly interactive” and permits users to interact with Murphy and each other by allowing users to append comments to Murphy's blog posts, participate in surveys, and join organizations; (5) Murphy listed his blog on another Web site, BlogCatalog.com, which is located in Texas; and (6) Murphy placed a link on his blog to another Web site, Café Press, that offered many products bearing the Helix Health logo for sale, which one Texas resident purchased [Eric's note: the purchaser was Healix's counsel]. The court is not persuaded that these facts taken together warrant a finding that Murphy “expressly aimed” his activities on his blog at the residents of this forum. [citations omitted]
Some of Healix's supporting arguments were pretty bogus. A blogger citing the work of Texas residents? A blogger getting listed in a blog directory located in Texas? Puh-lease. But even on the core issue of a blogger having Texas readers, the court is unmoved:
Murphy provided content on his blog regarding issues that attracted many users, and provided a forum where those users, including users from Texas, could interact concerning those issues. However, the evidence does not indicate that Murphy specifically directed is blog toward Texas users; rather, the evidence shows that...Murphy geared his message toward an entire world of users, a fact supported by the vast geographic diversity of Murphy's users. And while Murphy sometimes used Texas sources to convey his message...Murphy's use of Texas sources was “merely collateral” to the focus of his posts: to inform all users about particular issues in the field of personalized medicine wherever they may arise. Thus, although Murphy knows that many residents of Texas use his blog, that fact alone does not mean that Murphy used his blog with the “‘intent to target and focus on [Texas] [us]ers.’" [Citations omitted]
As a result, the court dismisses the state anti-dilution claim for lack of personal jurisdiction. Along with the Traffic-power v. Wall case, this ruling reinforces that bloggers should not be exposed to lawsuits in remote jurisdictions just because they have an active blog with a wide and engaged readership.
Some other interesting aspects of this case:
* FWIW, Murphy didn't escape Texas completely; for reasons unrelated to his blog, the court found jurisdiction over the ACPA claim.
* This is my third blog post this year discussing opinions where a plaintiff tries to use a CafePress storefront against the defendant. See my prior posts on the Wal-Qaeda and Curran cases. The court doesn't find that the CafePress storefront mattered here because the only sale in Texas was a "manufactured" one to the plaintiff's lawyer. Even so, from my perspective, a CafePress storefront looks like it can be an unintended liability trap for bloggers and gripers.
* This dispute appears to have taken a nasty turn. It's never good when the judge has an entire section of the opinion entitled "Parties' Lack of Civility," sends the lawyers a copy of the Texas Lawyer's Creed and admonishes "Counsel for all parties are directed to read and reflect on the Creed...and conduct themselves accordingly."
* Healix apparently is ramping up for a possible litigation frenzy over the term "Helix." Not only did they lose a separate TTAB action over a different Helix registration, but they have opened a new battlefront in this dispute by recently suing Pragmatix for its role in the alleged violations associated with the helixhealth.org domain name. The relationship between Pragmatix, Helix and Murphy is unclear from Healix's complaint, but Pragmatix is listed as the technical and administrative contact for the domain name (see the Whois results) and the complaint alleges that Pragmatix owns the domain name, designed and hosts the Helix website, and provided a variety of other services to the enterprise. This secondary lawsuit could raise a variety of interesting issues over the liability of a website designer and host for allegedly infringing activity by its customers, although I suspect this lawsuit will avoid all of those interesting issues before it settles or is otherwise resolved.
Posted by Eric at May 27, 2008 10:57 AM | Trademark
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