Papillon v. Shymatta

Filing 1

COMPLAINT. Filing fee received: $350.00, receipt number PHX 0970-5232013, filed by Michael Papillon (submitted by John Titus). (Attachments: # 1 Exhibit, # 2 Civil Cover Sheet)(REK) (Entered: 04/27/2011)

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Papillon v. Shymatta - Exhibit A Papillon v. Shymatta - Exhibit B Atty Docket No. 40249-1 IN THE UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD In re Application of : : : Cancellation No. ________________ : : : : : : : : : : : : David R. Shymatta Serial No. 77/126,362 Filing Date: March 9, 2007 Registration No. 3,351,212 Date Registered: December 11, 2007 Mark: CELL JUNKIE Pending in Class: 035 UNITED STATES PATENT AND TRADEMARK OFFICE Trademark Trial and Appeal Board P.O. Box 1451 Alexandria, VA 22313-1451 PETITION TO CANCEL Sir: Michael S. Papillon, an individual having an address at 4216 East Desert Marigold Drive, Cave Creek, Arizona 85331-7888 ("Petitioner") believes that he will be damaged by the continued registration of the above-captioned mark by David R. Shymatta ("Respondent") and hereby petitions for cancellation of said registration under the provisions of § 14 of the Trademark Act of July 5, 1946, as amended, (15 U.S.C. § 1051 et seq.). Papillon v. Shymatta - Exhibit C 1 Petition to Cancel Mark: CELL JUNKIE Serial No. 77/126,362 Registration No. 3,351,212 Date Registered: December 11, 2007 Atty Docket No. 40249-1 The grounds for cancellation are as follows: 1. Petitioner, since at least as early as July 16, 2006 has used the mark THE CELL PHONE JUNKIE in connection with entertainment services in the nature of an ongoing internet radio program and blog in the field of comment and criticism of cellular telephone equipment, cellular providers, and cellular accessories, via his web site thecellphonejunkie.com. 2. Petitioner has filed an application for registration of his mark THE CELL PHONE JUNKIE with the United States Patent and Trademark Office, which is now pending as Application Serial No. 77946630. 3. On information and belief, Registrant has abandoned the mark CELL JUNKIE and/or has abandoned use in interstate commerce. A search of the yellow pages for Chubbuck ID with the keyword CELL JUNKIE produces only two results, neither of which is Registrant (see Exhibit A). Similarly, a search of the yellow pages for Inkom ID with the keyword CELL JUNKIE produces only two results, neither of which is Registrant (see Exhibit B). A Google search with the keyword CELL JUNKIE does not produce a link to Registrant (see Exhibit C). Even a Google search with the keyword CELL JUNKIE IDAHO does not produce a link to Registrant (see Exhibit D). 4. In addition, based on the application record, Registrant's sole use of the mark CELL JUNKIE appears to have been for an eBay store. That eBay store has also been abandoned. (see Exhibit E). Indeed, Registrant's sole use of the mark appears to be 2 Petition to Cancel Mark: CELL JUNKIE Serial No. 77/126,362 Registration No. 3,351,212 Date Registered: December 11, 2007 Atty Docket No. 40249-1 for the purpose of extortion as evidenced by the letter received by Petition dated February 5, 2010. (See Exhibit F). 5. Petitioner avers that he will be damaged by the continued existence of the Registration because it may be an impediment to registration of his mark and may continue to be used as a tool for harassment by Registrant. WHEREFORE, Petitioner prays for an Order sustaining this Petition and canceling the registration of the above-captioned mark, and for such other relief as may be proper. Respectfully submitted, DICKINSON WRIGHT PLLC By: Dated: March 11, 2010 3 /john d. titus/ John D. Titus Attorneys for Petitioner Michael S. Papillon 5009 E. Washington, Suite 125 Phoenix, AZ 85034 Telephone: (602) 244-1400 Facsimile: (602) 244-1441 Email: JTitus@DickinsonWright.com Petition to Cancel Mark: CELL JUNKIE Serial No. 77/126,362 Registration No. 3,351,212 Date Registered: December 11, 2007 Atty Docket No. 40249-1 CERTIFICATE OF SERVICE I hereby certify that a true and complete copy of the foregoing PETITION TO CANCEL has been served on the Applicant, David R. Shymatta, by mailing said copy on March 11, 2010, by First Class Mail, postage prepaid to the following: David R. Shymatta 4245 Yellowstone Ave., #A3 Chubbuck, ID 83202 Dated: March 11, 2010 /john d. titus/ John D. Titus Attorney for Petitioner DETROIT 40249-1 1150418 4 EXHIBIT A EXHIBIT B cell junkie - Google Search Page 1 of 2 Google   Web Images Videos Maps News Shopping Gmail more Web History | Search settings | Sign in cell junkie Search Web Show options... Advanced Search Results 1 - 10 of about 17,300,000 for cell junkie. (0.27 seconds) The Cell Phone Junkie The Cell Phone Junkie. ... The Cell Phone Junkie Show #196 1:28:55. Show Notes Final 2009 carrier numbers, Nexus One release info on Verizon and webOS 1.4 ... Podcasts - April - January - August thecellphonejunkie.libsyn.com/ - Cached - Similar The Cell Phone Junkie This Special Edition of The Cell Phone Junkie is the second round table discussion of the 3rd annual SPE smartphone round robin. ... thecellphonejunkie.libsyn.com/rss - Cached - Similar Show more results from thecellphonejunkie.libsyn.com stores.ebay.com/CELL-JUNKIE The Cell Phone Junkie - Download free podcast episodes by Mickey ... Download or subscribe to free podcast episodes from The Cell Phone Junkie by Mickey Papillon on iTunes. itunes.apple.com/us/podcast/the-cell-phone-junkie/id171273849 - Cached TiPb on the Cell Phone Junky Unlocked | TiPb Feb 5, 2010 ... Frequent iPhone Live! panelist Mickey Papillon was kind enough to invite yours truly to come on The Cell Phone Junkie Unlocked podcast and ... www.tipb.com/2010/02/05/tipb-cell-phone-junky-unlocked/ - Cached The Cell Phone Junkie on PodcastAlley.com -- The place to find ... The Cell Phone Junkie Show #197 1:20:05Show NotesApple's lawsuit against HTC, Joey is now running the BESX, and MLB at Bat ushers in the 2010 baseball ... www.podcastalley.com/podcast_details.php?pod_id=32835 - Cached Confessions of a cell phone junkie - CNET News Sure, network quality matters. But consumers are making cool phones a top priority when deciding on a cellular plan. Photos: Phones that sing A CNET article ... news.cnet.com/...of...cell...junkie/2100-1039_3-6123668.html - Cached - Similar App Shopper: The Cell Phone Junkie - Mobile News (Productivity) iPad, iPhone and iPod touch app store listings, news, and price drops. appshopper.com/.../the-cell-phone-junkie-mobile-news - Cached - Similar The Cell Phone Junkie The Cell Phone Junkie podcast is the most comprehensive podcast out there for all the News, Devices and Software in the cell phone industry. www.digitalpodcast.com/detail-The_Cell_Phone_Junkie-18937.html - Cached - Similar Shameless self-promotion: Phil on The Cell Phone Junkie Unlocked ... Mar 2, 2010 ... Pardon the interruption, just wanted to take a second to let you know that I sat down with Mickey and Joey from The Cell Phone Junkie ... www.wmexperts.com/shameless-self-promotion-phil-cell-phone-junkie-unlocked - Cached EXHIBIT C http://www.google.com/search?sourceid=navclient&ie=UTF-8&rlz=1T4GGLL_enUS361... 3/10/2010 cell junkie - Google Search Page 2 of 2 1 2 3 4 5 6 7 8 9 10 cell junkie Next Search Search within results - Language Tools - Search Help - Dissatisfied? Help us improve Try Google Experimental Google Home - Advertising Programs - Business Solutions - Privacy - About Google http://www.google.com/search?sourceid=navclient&ie=UTF-8&rlz=1T4GGLL_enUS361... 3/10/2010 cell junkie idaho - Google Search Page 1 of 2 Google   Web Images Videos Maps News Shopping Gmail more Web History | Search settings | Sign in cell junkie idaho Web Show options... Search Advanced Search Results 1 - 10 of about 1,690,000 for cell junkie idaho. (0.27 seconds) Pacific Northwest - Idaho Jeeps - Jeep Junkie- the Magazine for ... Pacific Northwest - Idaho Jeeps Pacific Northwest. ... RCI Aluminum Fuel Cell AutoMeter Gauges 4-point Air System Beard Seats 8274-50 Winch, Synthetic Line ... jeepjunkie.com/forum/showthread.php?p=231 - Cached Online Confessions of an Internet Junkie (Some of these were taken with my cell phone so I apologize for bad quality). .... He of course has it in Idaho. I've been getting calls 1-3 times a week ... plaidlobster.blogspot.com/ - Cached Sun Valley Idaho's ski, snow, restaurant, recreation, news ... Mar 4, 2010 ... By The Gear Junkie atThe Outside Blog Gear Feed .... Is there personal privacy in the age of the internet, cell phones and security cameras? ... sunvalleyonline.com/.../the-gear-junkie-scoop-wenger-patagonia-gear - Cached How Do We Avoid Becoming Info Junkies? on ADVANCE for Respiratory ... We know we are gonners when cell phones, computer games, ... If we are on the guilty end of being true info junkies, we do need to resolve to make better use of ... Idaho, Illinois, Indiana, Kansas, Kentucky, Louisiana, Massachusetts ... respiratory-care-sleep-medicine.advanceweb.com/.../How-Do-We-Avoid-Becoming-InoJunkies.aspx - Cached Would you pay big to jail a junkie? - mcall.com Nov 8, 2009 ... (Some states -- notably Idaho, Montana and Utah -- have done ... A prison cell isn't the only means by which to curtail personal freedom. ... www.mcall.com/.../all-pc_5prison-overcrowding.7079600nov08,0,1928217.column - Cached RebKell's Junkie Boards :: View topic - 2009-10 NCAAW fantasy league 30 posts - 6 authors - Last post: Nov 19, 2009 Yinka Olerinnfe, C of Idaho Ebony Ellis C of Northern Illinois ..... Then I looked up each team's schedule and stuck an x in the cell for ... boards.rebkell.net/viewtopic.php?p=753633&sid... - Cached Political Junkie Blog : NPR In the fall of 2002, from his prison cell, Traficant ran for Congress as an ...... Arkansas, California, Delaware, Georgia, Idaho, Louisiana, Mississippi, ... www.npr.org/blogs/politicaljunkie/crime_and_punishment/ - Similar Ski Bike Junkie: Why religion doesn't matter Aug 11, 2009 ... Hawaii, Indiana, Michigan, Minnesota, and Idaho to be exact. ... Lately these have fallen out of fashion, but cell phone sales are brisk. .... Ski Bike Junkie: I like skis and bikes and putting them to good use. ... www.skibikejunkie.com/2009/08/why-religion-doesnt-matter.html - Cached Sun Valley Idaho's ski, snow, restaurant, recreation, news ... Feb 26, 2010 ... The Gear Junkie Scoop: Wenger Patagonia Gear ... Is there personal privacy in the age of the internet, cell phones and security cameras? ... sunvalleyonline.neighborlogs.com/ - Cached Zocor joint pain's Page - Mac Junkie EXHIBIT D http://www.google.com/search?sourceid=navclient&ie=UTF-8&rlz=1T4GGLL_enUS361... 3/10/2010 cell junkie idaho - Google Search Page 2 of 2 Zocor joint pain's Page on Mac Junkie. ... from missouri meant in american falls, idaho. zocor joint pain - order buy zocor online without a prescription. ... macjunkie.ning.com/profile/Zocorjointpain - Cached 1 2 3 4 5 6 7 8 9 10 cell junkie idaho Next Search Search within results - Language Tools - Search Help - Dissatisfied? Help us improve Try Google Experimental Google Home - Advertising Programs - Business Solutions - Privacy - About Google http://www.google.com/search?sourceid=navclient&ie=UTF-8&rlz=1T4GGLL_enUS361... 3/10/2010 EXHIBIT E EXHIBIT F EXHIBIT F EXHIBIT F Trademark Trial and Appeal Board Electronic Filing System. http://estta.uspto.gov ESTTA Tracking number: Filing date: Proceeding IN THE UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD 92052188 Party Defendant David R. Shymatta Correspondence Address Submission JARED W. ALLEN BEARD ST. CLAIR GAFFNEY McNAMARA P.A. 2105 CORONADO DRIVE IDAHO FALLS, ID 83404 UNITED STATES allen@beardstclair.com Answer Filer's Name Jared W. Allen Filer's e-mail allen@beardstclair.com, jessica@beardstclair.com Signature /s/ Jared W. Allen Date 05/10/2010 Attachments Shymatta Answer.pdf ( 30 pages )(1613417 bytes ) Papillon v. Shymatta - Exhibit D ESTTA346446 05/10/2010 Papillon v. Shymatta - Exhibit E Latest Status Info Thank you for your request. Here are the latest results from the TARR web server. This page was generated by the TARR system on 2011-04-26 18:58:19 ET Serial Number: 77946630 Assignment Information Trademark Document Retrieval Registration Number: (NOT AVAILABLE) Mark (words only): THE CELL PHONE JUNKIE Standard Character claim: Yes Current Status: An opposition after publication is pending at the Trademark Trial and Appeal Board. For further information, see TTABVUE on the Trademark Trial and Appeal Board web page. Date of Status: 2010-12-02 Filing Date: 2010-02-27 Filed as TEAS Plus Application: Yes Currently TEAS Plus Application: Yes Transformed into a National Application: No Registration Date: (DATE NOT AVAILABLE) Register: Principal Law Office Assigned: LAW OFFICE 116 Attorney Assigned: SHANAHAN WILLIAM PATRICK Current Location: 650 -Publication And Issue Section Date In Location: 2010-06-24 LAST APPLICANT(S)/OWNER(S) OF RECORD 1. Papillon, Michael S Papillon v. Shymatta - Exhibit F http://tarr.uspto.gov/servlet/tarr?regser=serial&entry=77946630[4/26/2011 4:03:01 PM] Latest Status Info Address: Papillon, Michael S 4216 E Desert Marigold Dr. Cave Creek, AZ 85331 United States Legal Entity Type: Individual Country of Citizenship: United States Phone Number: 6023253215 GOODS AND/OR SERVICES International Class: 041 Class Status: Active Entertainment services, namely, providing a radio program in the field of Comment and criticism on cellular equipment, cellular providers, and cellular accessories via a global computer network; Entertainment services, namely, providing an on-going radio program in the field of Comment and criticism on cellular equipment, cellular providers, and cellular accessories; On-line journals, namely, blogs featuring Comment and criticism on cellular equipment, cellular providers, and cellular accessories Basis: 1(a) First Use Date: 2006-07-16 First Use in Commerce Date: 2006-07-16 ADDITIONAL INFORMATION Disclaimer: "CELL PHONE" MADRID PROTOCOL INFORMATION (NOT AVAILABLE) PROSECUTION HISTORY NOTE: To view any document referenced below, click on the link to "Trademark Document Retrieval" shown near the top of this page. 2010-12-02 - Opposition instituted for Proceeding 2010-08-24 - Extension Of Time To Oppose Received 2010-07-27 - Notice Of Publication E-Mailed 2010-07-27 - Published for opposition 2010-06-24 - Law Office Publication Review Completed 2010-06-24 - Assigned To LIE 2010-06-11 - Approved for Pub - Principal Register (Initial exam) 2010-06-10 - Teas/Email Correspondence Entered http://tarr.uspto.gov/servlet/tarr?regser=serial&entry=77946630[4/26/2011 4:03:01 PM] Latest Status Info 2010-06-09 - Communication received from applicant 2010-06-09 - TEAS Response to Office Action Received 2010-06-09 - Notification Of Non-Final Action E-Mailed 2010-06-09 - Non-final action e-mailed 2010-06-09 - Non-Final Action Written 2010-06-02 - Assigned To Examiner 2010-03-03 - New Application Office Supplied Data Entered In Tram 2010-03-03 - New Application Entered In Tram ATTORNEY/CORRESPONDENT INFORMATION Correspondent JOHN D TITUS DICKINSON WRIGHT PLLC 5009 EAST WASHINGTON SUITE 125 PHOENIX, AZ 85034 Phone Number: 6023253215 http://tarr.uspto.gov/servlet/tarr?regser=serial&entry=77946630[4/26/2011 4:03:01 PM] Papillon v. Shymatta - Exhibit G Papillon v. Shymatta - Exhibit H Case 4:10-cv-00565-BLW Document 18 Filed 04/21/11 Page 1 of 10 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF IDAHO DAVID SHYMATTA, dba CELL JUNKIE; Plaintiff, Case No. 4:10-CV-00565-BLW MEMORANDUM DECISION AND ORDER v. MICHAEL PAPILLON, dba THE CELL PHONE JUNKIE; Defendant. INTRODUCTION The Court has before it Defendant’s Motion to Dismiss for Lack of Personal Jurisdiction (Dkt. 9). FACTUAL AND LEGAL BACKGROUND Plaintiff David Shymatta has owned the registered trademark “Cell Junkie” since December 11, 2007. This trademark is classified for “retail store services featuring cell phone accessories.” Compl., Ex. A, Dkt. 1-1 at 3. Defendant Michael Papillon, a resident of Arizona, operates a website called “The Cell Phone Junkie.” Compl. at ¶ 2. Mr. Shymatta, dba Cell Junkie, sells cell phone products and accessories. Cell Junkie maintains a website, celljunkie.com, and sells products through various online retailers such as ebay.com. Id. at ¶ 8. MEMORANDUM DECISION AND ORDER - 1 Papillon v. Shymatta - Exhibit I Case 4:10-cv-00565-BLW Document 18 Filed 04/21/11 Page 2 of 10 Mr. Papillon operates a blog, cellphonejunkie.com, which reviews cell phones, cell phone accessories, and provides podcasts regarding cell phones that may be listened to for free on the website. Id. at ¶ 11. Mr. Papillon’s website provides users with links to retailers selling the products being reviewed and discussed, but does not directly sell products or provide price comparisons. Id; Papillon Aff., Dkt. 9-2 at ¶ 11. The vast majority of content on Mr. Papillon’s website is available for free to any user. Papillon Aff., Dkt. 9-2 at ¶ 8. Mr. Papillon has never personally sold any tangible products through his website. Id. at ¶ 10. Mr. Papillon’s website offers a “premium” podcast for direct download to electronic devices, such as a personal computer or iPod, for a small fee, the proceeds of which are dedicated entirely to website maintenance. Id. at ¶¶ 12-13. In 2009, the proceeds from these premium podcasts totaled $3,000. Id. at ¶ 15. Since July 2006, 0.07% of all premium podcast downloads from Mr. Papillon’s website have been initiated by users in Idaho. Id. at ¶ 18. Mr. Papillon has never purchased any advertising for his website, in Idaho or any other state. Id. at ¶ 20. On February 5, 2010, Mr. Shymatta sent Mr. Papillon a cease and desist letter, demanding cessation of the use of the domain name “thecellphonejunkie.com.” Id. at ¶ 13. On February 27, Mr. Papillon applied to register the trademark “The Cell Phone Junkie” for the purposes of entertainment services. Compl., Ex. F, Dkt. 1-7 at 2. On March 11, 2010, Mr. Papillon initiated cancellation proceedings regarding Mr. Shymatta’s registered “Cell Junkie” trademark with the United States Patent & Trademark Office, alleging abandonment. Compl., Ex. D, Dkt. 1-5 at 1-2. MEMORANDUM DECISION AND ORDER - 2 Case 4:10-cv-00565-BLW Document 18 Filed 04/21/11 Page 3 of 10 Mr. Shymatta filed his pro se complaint in this matter on November 15, 2010, alleging causes of action for (1) federal trademark infringement under the Lanham Act, 15 U.S.C. § 1114; (2) false advertising, unfair competition, infringement, false designation of origin, and passing off; (3) direct and contributory common law trademark infringement; (4) direct and contributory common law unfair competition. Compl., Dkt. 1. On December 21, 2010, Mr. Papillon moved to dismiss the complaint for lack of personal jurisdiction. Mtn. to Dismiss, Dkt. 9. LEGAL STANDARD In order to establish the existence of personal jurisdiction in a diversity case, the plaintiff must show (1) that a statute of the forum confers personal jurisdiction over the nonresident defendant, and (2) that the exercise of jurisdiction accords with federal constitutional principles of due process. Haisten v. Grass Valley Medical Reimbursement Fund, Ltd., 784 F.2d 1392, 1396 (9th Cir. 1986). The Idaho long-arm statute provides that a person is subject to personal jurisdiction if, among other things, he transacts business or commits a tortious act in Idaho and the alleged cause of action arises from that transaction or act. I.C. § 5-514. The Idaho legislature, in adopting that statute, intended to exercise all the jurisdiction available to the State of Idaho under the due process clause of the United States Constitution. Doggett v. Electronics Corp. of Am., 93 Idaho 26, 30 (1969). Thus, the state and federal limits are coextensive. Data Disc, Inc. v. Systems Technology Associates, Inc., 557 F.2d 1280, 1286 (9th Cir. 1977) Contacts giving rise to personal jurisdiction in a given forum may be general or MEMORANDUM DECISION AND ORDER - 3 Case 4:10-cv-00565-BLW Document 18 Filed 04/21/11 Page 4 of 10 specific. For general jurisdiction to exist over a nonresident defendant, the defendant must engage in “continuous and systematic general business contacts,” Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 416 (1984) (citing Perkins v. Benguet Consol. Mining Co., 342 U.S. 437 (1952)), that “approximate physical presence” in the forum state, Bancroft & Masters, 223 F.3d 1082, 1086 (9th Cir. 2000). This is an exacting standard because a finding of general jurisdiction permits a defendant to be haled into court in the forum state to answer for any of its activities anywhere in the world. Brand v. Menlove Dodge, 796 F.2d 1070, 1073 (9th Cir. 1986) (collecting cases where general jurisdiction was denied despite defendants’ significant contacts with forum). A commercially interactive website may satisfy general personal jurisdiction under the “sliding scale” test. Cybersell, Inc. v. Cybersell, Inc., 130 F.3d 414, 417-19 (9th Cir. 1997) (citing Zippo Mfg. Co. v. Zippo Dot Com, Inc., 952 F.Supp. 1119, 1124 (W.D. Pa. 1997)). Zippo described the test as follows: [T]he likelihood that personal jurisdiction can be constitutionally exercised is directly proportionate to the nature and quality of commercial activity that an entity conducts over the Internet. . . . At one end of the spectrum are situations where a defendant clearly does business over the Internet. If the defendant enters into contracts with residents of a foreign jurisdiction that involve the knowing and repeated transmission of computer files over the Internet, personal jurisdiction is proper. At the opposite end . . . a defendant has simply posted information on an Internet Web site which is accessible to [forum resident] users. . . . The middle ground is occupied by interactive Web sites where a user can exchange information with the host computer. Zippo, 952 F.Supp. at 1124 (citations omitted). To ascertain whether specific personal jurisdiction exists, this Court employs a MEMORANDUM DECISION AND ORDER - 4 Case 4:10-cv-00565-BLW Document 18 Filed 04/21/11 Page 5 of 10 three-prong test to determine whether a party has sufficient minimum contacts to be susceptible to specific personal jurisdiction: (1) The non-resident defendant must purposefully direct his activities or consummate some transaction with the forum or resident thereof; or perform some act by which he purposefully avails himself of the privilege of conducting activities in the forum, thereby invoking the benefits and protections of its laws; (2) the claim must be one which arises out of or relates to the defendant’s forum-related activities; and (3) the exercise of jurisdiction must comport with fair play and substantial justice, i.e. it must be reasonable. Schwarzenegger v. Fred Martin Motor Co., 374 F.3d 797, 802 (9th Cir. 2004). The plaintiff bears the burden on the first two prongs. If the plaintiff establishes both prongs one and two, the defendant must come forward with a compelling case that the exercise of jurisdiction would not be reasonable. Boschetto v. Hansing, 539 F.3d 1011, 1016 (9th Cir. 2008) (internal quotation omitted). The court may consider evidence presented in affidavits to assist it in its determination and may order discovery on the jurisdictional issues. Data Disc, Inc. v. Systems Technology Assoc., Inc., 557 F.2d 1280, 1285 (9th Cir. 1977). However, [w]hen a district court acts on a defendant’s motion to dismiss without holding an evidentiary hearing, the plaintiff need make only a prima facie showing of jurisdictional facts to withstand the motion to dismiss. [ ] That is, the plaintiff need only demonstrate facts that if true would support jurisdiction over the defendant. Ballard v. Savage, 65 F.3d 1495, 1498 (9th Cir. 1995) (citations omitted) (alteration in original); see also AT & T v. Compagnie Bruxelles Lambert, 94 F.3d 586, 588 (9th Cir. 1996) (where trial court rules on jurisdictional issue based on affidavits and discovery MEMORANDUM DECISION AND ORDER - 5 Case 4:10-cv-00565-BLW Document 18 Filed 04/21/11 Page 6 of 10 materials without holding evidentiary hearing, plaintiff need only make prima facie showing). ANALYSIS First, Mr. Papillon argues that his blog is insufficient to support a finding of general personal jurisdiction in Idaho. Secondly, Mr. Papillon argues that he satisfies neither of the first two prongs of the specific personal jurisdiction test because he has never directed activities at this forum, and there are thus no forum-related activities form which this matter may arise. A. General Personal Jurisdiction Mr. Papillon’s blog is insufficient to meet the exacting standard of general personal jurisdiction. Mr. Papillon has never had any substantial, continuous, or systematic contacts with Idaho. He has never advertised, sold any tangible products to any state, or maintained any relationships with retail vendors. Compare these minimal contacts with those found sufficient by the Ninth Circuit in Gator.com Corp. v. L.L. Bean, Inc., 341 F.3d 1072 (9th Cir. 2003). In that case, L.L. Bean, a Maine corporation, targeted advertising at California, maintained a highly interactive, commercially lucrative website serving large numbers of California consumers, and maintained business relationships with numerous California vendors. Id. at 1078. The few district courts to have considered blogs specifically have found them insufficient to establish general personal jurisdiction. See Miller v. Kelly, 2010 WL 4684029, *5 (D. Colo. November 12, 2010) (“Accordingly, the Court finds that Defendant’s authorship of a LiveJournal blog is MEMORANDUM DECISION AND ORDER - 6 Case 4:10-cv-00565-BLW Document 18 Filed 04/21/11 Page 7 of 10 an insufficient basis for the exercise of general personal jurisdiction over her.”); Hudson v. University of Puerto Rico, 2010 WL 1131462, *3 (D. Minn. March 23, 2010) (“[T]he . . . blog in and of itself is insufficient to establish general jurisdiction over the University.”). Mr. Shymatta’s argument that Mr. Papillon maintains a commercially interactive website available to Idaho users that falls at the extreme end of the Zippo sliding scale is unavailing. Mr. Papillon does not manufacture, design, stock, sell, or ship any cell phone related product; when he reviews a cell phone or related product, he provides a link to a retailer that sells the product for the ease of the reader. No profit is received by Mr. Papillon for these links. See Con-Way, Inc. v. CONWAYRACING.COM, 2009 WL 2252128, *2 (N.D. Cal. July 28, 2009) (“A passive website that merely provides links to other sites, but does not itself sell products within a forum, is insufficient to confer jurisdiction.”); Simplicity, Inc. v. MTS Prods., 2006 U.S. Dist. LEXIS 17626, *23-25 (E.D. Pa. Apr. 14, 2006) (“[The] website falls short of a commercially interactive site for which personal jurisdiction is proper because it does not allow customers to purchase products online – it merely provides the names and website links to retailers, etailers and specialty stores which sell its products.”). The fact that Mr. Papillon sells a small number of premium podcast subscriptions advertised on his website does not render it commercially active. To subscribe, an interested party must e-mail Mr. Papillon separately; the transaction is not conducted on the website. See, e.g., Bensusan Restaurant Corp. v. King, 937 F. Supp. 295, 297 MEMORANDUM DECISION AND ORDER - 7 Case 4:10-cv-00565-BLW Document 18 Filed 04/21/11 Page 8 of 10 (S.D.N.Y. 1996) (no personal jurisdiction where passive website directed interested parties to contact website operator independently). The podcasts are also available for free listening on the website. At most, Mr. Papillon’s website falls into the middle ground of the Zippo sliding scale because there is some minimal user interactivity. Visitors to the website may post their own personal comments at the end of Mr. Papillon’s blog posts. Such minimal interactivity, coupled with the lack of commercial activity, is insufficient to convey general personal jurisdiction subjecting Mr. Papillon to being “haled into court in the forum state to answer for any of its activities anywhere in the world.” Brand, 796 F.2d at 1073. B. Specific Personal Jursidiction Because Mr. Papillon’s non-commercial blog is insufficient to establish general personal jurisidiction over him in Idaho, Mr. Shymatta must establish specific personal jurisdiction. Mr. Shymatta cannot do so, because he has failed to establish the first two requirements of the Schwarzenegger test. 1. First Requirement - Purposeful Availment “The non-resident defendant must purposefully direct his activities or consummate some transaction with the forum or resident thereof; or perform some act by which he purposefully avails himself of the privilege of conducting activities in the forum, thereby invoking the benefits and protections of its laws.” Schwarzenegger, 374 F.3d at 802. This requirement is referred to as purposeful availment, and requires a showing that a defendant “(1) committed an intentional act, (2) expressly aimed at the forum state, (3) MEMORANDUM DECISION AND ORDER - 8 Case 4:10-cv-00565-BLW Document 18 Filed 04/21/11 Page 9 of 10 causing harm that the defendant knows is likely to be suffered in the forum state.” Menken v. Emm, 503 F.3d 1050, 1058 (9th Cir. 2007) (internal quotation omitted). The complaint lacks any allegations that Mr. Papillon committed an intentional act expressly aimed at Idaho. Specific personal jurisdiction is sought on the grounds that Mr. Papillon’s website is accessible in Idaho. These allegations do not constitute an intentional act aimed at Idaho. Compare Panavision Int’l., L.P. v. Toeppen, 121 F.3d 1316, 1322 (9th Cir. 1998) (cybersquatter who registered internet domain name and sent letters to California address demanding remuneration on exchange for use of domain name committed intentional act targeted at the forum), with Rio Properties, Inc. v. Rio Int’l Interlink, 284 F.3d 1007 (9th Cir. 2002) (operation of passive website insufficient absent “something more”; in this case targeted advertising with the forum state). 2. Second Requirement - Claims Arising out of Intentional Acts The second requirement of the Schwarzenegger test is necessarily not met because Mr. Papillon has not engaged in any intentional acts expressly directed at Idaho. Mr. Shymatta claims that Mr. Papillon sued him in Idaho, but the record does not support this allegation. Mr. Papillon did file a trademark cancellation action against Mr. Shymatta’s trademark with the United States Patent & Trademark Office in Washington, D.C., but this filing is not analogous to bringing a tort claim in Idaho against an Idaho resident. CONCLUSIONS Mr. Papillon’s non-commercial, minimally interactive blog is insufficient to subject him to general personal jurisdiction in any forum. Because Mr. Papillon has MEMORANDUM DECISION AND ORDER - 9 Case 4:10-cv-00565-BLW Document 18 Filed 04/21/11 Page 10 of 10 engaged in no intentional acts expressly directed at Idaho, specific personal jurisdiction is also lacking in this matter. ORDER IT IS ORDERED: 1. Defendant’s Motion to Dismiss for Lack of Jurisdiction (Dkt. 9) is GRANTED. DATED: April 21, 2011 Honorable B. Lynn Winmill Chief U. S. District Judge MEMORANDUM DECISION AND ORDER - 10

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