Cybersell Inc. v. Cybersell Inc. 130 F3d 414 (9th Cir. 1997). Defining the Limits of Jurisdiction for Internet Activity.

Cybersell presented the question of whether the allegedly infringing use of a trademark on a Florida company's website would grant personal jurisdiction to a court in Arizona where Plaintiff company was located. The 9th Circuit was obligated to apply the traditional tests for the constitutional limits of jurisdiction from cases such as Internalional Shoe and Hanson v. Dencla to internet activity.

The plaintiff Cybersell was formed in Arizona, and was in the process of securing a service mark for the name "Cybersell" when the Defendants in Florida created another company called Cybersell and began using the name Cybersell on their website. Cybersell Arizona sued Cybersell Florida in Arizona district court alleging among other claims, trademark infringement and unfair competition. The question of personal jurisdiction is whether the court in question has the power to render a judgement over a party. Here, the question was whether use of the Cybersell name on the internet without more, gave the Arizona court the power, as a matter of constitutional fairness, to render a judgement against the Florida company.

Courts use a three part test to determine whether they may exercise specific jurisdiction over a non-resident defendant: 1. The non-resident defendant must do some act or consummate some transaction with the forum or perform some act by which he purposefully avails himself of the privilege of conducting activities in the forum, 2. the claim must be one which arises out of or results from the defendant's forum related activities, and 3. the exercise of jurisdiction must be reasonable. The ultimate question is one of fairness as was set out by the Supreme Court in International Shoe. The question of whether the Florida company would be amenable to suit in Arizona boils down to "traditional notions of fair play and substantial justice."

The Appellate Court upheld the lower Court's decision that no jurisdiction could be exercised. The finding rested on the determination that Cybersell Florida had taken no steps avail itself of the priviledge of conducting activity in Arizona. The fact that the allegedly offending website was accessible from locations in Arizona, as indeed the site would be available to anyone anywhere with internet access, was not enough to grant jursidiction. The court found that the website was essentially passive in nature and distinguished the case from others in which different types of internet activity was enough to grant jurisdiction.

Personal jursidiction can be constitutionally exercised in direct proportion to the nature and quality of commercial activity that an entity conducts over the internet. In Cybersell, the Florida company had no contact with customers in Arizona which made the case different from others where the following factors came into play: the number of "hits" from the forum state, the interactive nature of a website or lack thereof, the number of customers a website generates in a forum state, and the use of 800 numbers. The court stated that "..so far as we are aware, no court has ever held that an Internet advertisement alone is sufficient to subject the advertiser to jurisdiction in the plaintiff's home state."