It’s 4:30 on a Friday afternoon. Your phone rings. It is your biggest client, a New York company that makes widgets. “Help,” your client pleads, “there is a California company that is copying our widgets! You can see them on the company’s website.”
You go on the website to check things out. You find the infringing widgets but notice that the website is not interactive. You cannot make a purchase through the website, rather you must call, email, or visit the infringer to purchase the infringing widget. “We want to sue them right away for infringement — and we want to sue them here, in New York,” your client says. “Let’s think about this,” you say. “This is a pretty savvy infringer. By disabling any interactivity on the website, this infringer is clearly trying to avoid getting sued in New York, or any other foreign jurisdiction for that matter.” “I don’t understand,” says the client. “Why should we have to go to California to enforce our rights that this company is clearly infringing?” You put your thinking cap on. “I have an idea,” you say. “We will call this California company and order an infringing widget to be shipped to New York.” Done! Jurisdiction in New York obtained! Or maybe not....
Originally Published in New York Law Journal - January 6, 2014.
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