Geotagged Social Media Posts Didn’t Support Personal Jurisdiction–Court of Master Sommeliers v. Pilkey
The plaintiff runs certification programs for beverage experts. The highest certification is “master sommelier,” earned normally only by less than 10 people a year. In Sept. 2018, a record 24 candidates earned the certification. It turns out an insider leaked confidential information about the coming exam. The plaintiff canceled the test results, including the defendant’s. As you can imagine, this event roiled the clubby wine world. The defendant kept holding himself out as a master sommelier, so the plaintiff sued him for trademark infringement. (see the LinkedIn profile capture to see how he is currently phrasing his accomplishment).
At issue in this ruling is the defendant’s inclusion of the trademarks in his Instagram, LinkedIn, and Twitter accounts. The plaintiff claimed jurisdiction in California because the defendant “used his social media accounts to discuss and promote fine wines, and to promote himself within the wine industry, and he knew his audience included wineries and wine professionals in California.”
The court describes the social media posts:
Plaintiff points to four offending Instagram posts that Plaintiff argues are deliberately targeted at California. All were posted to Defendant’s personal Instagram account, @chi_town_somm. The first is a close-up picture of the label of a bottle of Paul Hobbs Cabernet Sauvignon, 2011 vintage. It is geotagged “Guerneville, California,” and captioned “Part of becoming a wine professional is having an open mind and tasting without preconceived notions – the 2011 was incredible! #proofinthebottle #paulhobbs #secondcitysomms #napavalley.” The second is a closeup picture of three bottles of Paul Hobbs Chardonnay, 2016 vintage. It is geotagged “Maestro’s Steakhouse” and captioned “Thank you @maestrosofficial for a memorable night of #paulhobbswines @paulhobbswines ’16 Chards are [fire emoji] [fire emoji] Surprise Wines of the Night … 2011 Dr. Crane and Katherine Lindsay PN ’12 RRV. Featured #ellenlaneestate #edwardjamesestate #rossstationestate #richarddinnervineyard.” The third is a picture of two rows of grapevines, with different color foliage. It is geotagged “Napa, California,” and captioned “Malbec versus Cabernet color… which do you think is which? #nathancombsestate #paulhobbs.” The fourth is a close-up picture of a name card bearing Defendant’s name over the words “Sommelier” “Judge” “Sommelier Challenge International Wine & Spirits Competition.” It is not geotagged and captioned “17 Pinot, 3 Spanish, 11 Cab Franc, 24 Cab Sauv. Day 1 AM can’t wait to start the day!! #criticschall #secondcitysomms #sommlife #sommchallenge.”
Plaintiff also points to a series of tweets that were part of a twitter “chat” between Twitter user “KeeperCollection,” Defendant, and other twitter users. In its tweet announcing the chat, KeeperCollection refers to “Master #Sommelier @dpilkey #Chicago based.” The other tweets show KeeperCollection posing questions to Defendant and his responses; the questions focus on how Defendant got into the wine industry and what hisideal wine job would be, without any specific reference to Plaintiff or its marks.
Plaintiff further contends that Defendant improperly identifies himself using the terms “Master Sommelier” and “MS” in the profile sections of his LinkedIn, Twitter, and Instagram accounts.
The court concluded that the plaintiff did not establish personal jurisdiction in California (emphasis added):
Defendant’s Instagram handle, @chi_town_somm, is geared toward Chicago, reflecting his occupation as a sommelier in that city. Further, his hashtags also reflect his involvement with the Chicago wine scene (e.g., #secondcitysomms). Apart from the Chicago-specific references, the content of his posts appears to be general information and enthusiasm about wine – topics which might be appealing to any sommelier or fan of wine. Some posts feature information about his California childhood or the source of his interest in wine, and some feature references to his California-based employer….
In an attempt to connect Defendant’s general wine posts to California, Plaintiff argues that, because California is widely acknowledged to make superlative wine, Defendant’s posts about wine must clearly be targeted to a California market. That chain of logic is attenuated. Although some of Defendant’s posts address California wine and his employer’s wine in particular, Defendant also appears to be known for his interest in “small vineyards and hard-to-find bottles from across the globe.” Plaintiff’s argument would sweep a citizen of any state making a personal social media post about wine under the aegis of the California courts simply because much good wine is made in California. Under Plaintiff’s logic, anyone who has purchased California wine and tagged a picture in Napa Valley on a personal Instagram account would be subject to personal jurisdiction here. This expansive notion of jurisdiction cuts against the scope of the contacts that courts have traditionally required to justify the exertion of judicial power….
Personal Instagram accounts may indeed be used to build a personal “brand” and generate advertising revenue. However, scale and targeting are crucial questions in this context. A personal, if public, Instagram account with a small number of followers is distinct from a popular commercial website specifically focused on a California industry, like the one discussed in Marvix. Here, Defendant did not use his social media posts for “commercial exploitation” of the California market. Though some posts refer to California wines produced by his employer, those wines are commercially available throughout the United States. Indeed, if any market was targeted by those posts, it would be the markets within Defendant’s geographic sales territory, which does not include California. Further, as the court noted in Nebel, the fact that these posts were publicly available and might be partially focused on Defendant’s personal branding and sommelier career does not make them commercial. The posts were not advertisements per se and likely were only disseminated to the relatively small number of people who follow Defendant’s personal accounts. The Court finds that Defendant’s posts were primarily personal content available to interested parties…
the profile sections of Defendant’s social media accounts do use the marks in their descriptions of Defendant. However, the Court does not agree with Plaintiff’s argument that these profiles are particularly targeted at California simply because Defendant is a sommelier and wine is made in California.
In this case, the geotagging proved to be inconsequential. However, in personal jurisdiction cases, anything that indicates that the defendant knew it was interacting with a state could be used as evidence of knowledge or intent of the geographic implications. The court correctly says that “Under Plaintiff’s logic, anyone who has purchased California wine and tagged a picture in Napa Valley on a personal Instagram account would be subject to personal jurisdiction here.” That can’t be the law. But where a trademark defendant knowingly communicates with the plaintiff’s chosen forum, as indicated by geotagged posts, there’s a good chance that other courts won’t be as sympathetic as this one.
Case citation: Court of Master Sommeliers v. Pilkey, 2019 WL 9443609 (N.D. Cal. Dec. 9, 2019). Note: the docket stops after this ruling, so it appears the plaintiff dropped the matter.