Metropolitan News-Enterprise


Thursday, November 2, 2017


Page 1


Ninth Circuit:

Federal Court Action Does Not Lie Against U.K. Company Over Emailed Ad

Says Plaintiffs in Copyright Infringement Suit Failed to Show Conduct Was Aimed at Forum State


By a MetNews Staff Writer


A judge properly dismissed an action filed in the Central District of California against a company in the United Kingdom that allegedly infringed copyrights on the plaintiffs’ logos in an emailed newsletter, the Ninth U.S. Circuit Court of Appeals held yesterday, because the advertising matter was not specifically aimed at Californians.

Judge Milan Smith noted that defendant Acerchem UK sent a newsletter, using the logos in question, to 343 email addresses, only 55 of which were associated with persons connected with companies in California but with the whereabouts of their residences unknown.

The jurist said that under the “effects” test, there must be an intentional act—which he said is established—but must be aimed at the forum state.

‘Attenuated,’ ‘Isolated’

 He declared:

“[A]ny California contacts Acerchem UK created by sending a single newsletter to 55 recipients of unknown residence are too ‘attenuated’…and ‘isolated’…to support the exercise of jurisdiction.”

Smith added:

“Acerchem UK’s evidence confirms the insufficiency of its contacts with California. No more than ten of the newsletter’s recipients were physically located in California. Indeed, most of the recipients were located in Western Europe. Acerchem UK itself conducts no business in California.”

The plaintiffs sought to invoke Federal Rule of Civil Procedure 4(k)(2) which permits the exercise of jurisdiction where the claim arises under federal law and the defendant is not subject to the jurisdiction of any state court. Smith said rule does not assist the plaintiffs because the exercise of personal jurisdiction must be consistent with due process.

Due Process

There are insufficient contacts, he said, to satisfy due process, explaining:

“According to the evidence produced, the sole contact between Acerchem UK and the United States is the newsletter. Although Appellants maintain that Acerchem UK sent the newsletter to ‘[a]t least 70 recipients with companies in the United States, other than California.’ Appellants fail to explain the relationship between the 70 recipients and then respective companies.”

The plaintiffs are Appellant Axiom Foods., a California corporation produces natural food products, and Growing Naturals, LLC, an Arizona company that develops and sells such products, and while jointly sell Axion products in California. Their “As Good as Whey” and “Non-GMO” logos were used in the emailed advertising matter.

The case is Axiom Foods v. Acerchem UK, No. 15-56450.


Copyright 2017, Metropolitan News Company