(Photo credit: Wikipedia)As noted in the previous post, Facebook has been going through a tough stretch. Let it never be said that The Unruly of Law is above piling on and kicking a litigant when it's down.
United States District Court for the Northern District of California Judge Jeffrey White last week dismissed Facebook's trademark infringement suit against a Norwegian adult Web site for want of personal jurisdiction. In Facebook, Inc. v. Thomas Pedersen & Retro Invent (Case No. 3:10-cv-04673), Facebook sought entry of a default judgment, attorneys' fees of more than $80,000, litigation costs exceeding $13,000 and a permanent injunction against the defendants, operators of Faceporn, the self-described "number one socializing porn and sex network."
In October 2010, Facebook initially sued Faceporn in a 10-count complaint, alleging, among other claims, trademark infringement and trademark dilution. [See "TUOL" post 11/3/10.] According to the paidcontent.org Web site, Facebook, which owns 10 trademarks and has another 17 pending, is dogged in its pursuit of companies that deign to use face or book in their names.
Judge White adopted the recommendation of U.S. Magistrate Nathaniel Cousins's 10-page ruling that Norway, not California, would be the proper forum for Facebook to pursue its claims because the defendants were not subject to personal jurisdiction by the court. The court relied on the three-pronged "effects" test to determine personal jurisdiction as set forth in the Supreme Court decision in Calder v. Jones, 465 U.S. 783 (1984), which requires the plaintiff to show the defendant: 1)committed an intentional act, 2)expressly aimed at the forum state, 3)causing harm the nonresident defendant knew would likely be suffered in the forum state.
Applying Calder, Judge White said Facebook failed to show Faceporn's California viewer base (an estimated 250 users) was an integral part of the defendant's business model and profitability and thereby, establish personal jurisdiction. The court did not see Faceporn as being in direct competition with Facebook.
At times such as these, at least Facebook has millions of "friends" on whom it can lean.