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A New Millenium

I did a lot of talking about Millennium Enterprises, Inc. v. Millennium Music, L.P. 33 F.Supp.2d 907 (Ore. 1999) today in Civ Pro. (Apologies to my classmates if I bored them to tears.) The case addresses the issue of whether a company who puts up a website targeted mainly at its local markets may be be required to answer a complaint in a foreign state due to 'purposeful availment.' In the case, Millenium Enterprises sued Millenium Music for trademark infringement, and tried to bring the case in Oregon under the theory that Music's website, being accessible in Oregon, provided a grounds for personal jurisdiction.

I hate it when I have to disagree with a court's opinion: after all, I'm a law student, what do I know? But applying the standard of 'purposeful availment' to a website seems to me to be a serious problem. So much of what is done by a 'real world' defendant occurs automatically online. You don't have to print out advertisements, because a Google spider will list you in a search engine. You don't have to send out advertisements, because your traffic will come to you--they may even link. True, active measures help, and in fact will make the difference between your project being a success or a failure. But if you put a site online, unless you specifically disclaim that you will use it to do business throughout the nation, I think you should be held to personal jurisdiction throughout the United States.

Still, if this case is any indication, courts today disagree with me. Which is, I suppose, a good thing, since it makes it that much less likely that anyone will successfully sue me for Three Years of Hell.

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I do have to disagree with your opinion on the case. Maybe I am just a technocrat, but I tend to find the whole idea of state sovereignty as an antiquated idea. In this type case I tend to take the Shaw view in Farwell that infant industries need to be protected, and the only real issue for me is to spin the facts and precedent so the case comes out that way. But alas, I am a legal realist, so I have no moral objections to doing that.
We did the same thing with Bellino v Simon; rather freaky to think of all the liability website owners expose themselves to!
I am not familiar with the case but am curious whether Millenium Music was selling anything through their website. If so, and if potential customers reside in Oregon, it seems reasonable to require Millenium Music to answer the complaint in Oregon. If you are to receive potential benefits from state of Oregon, it should not come as a shock if you are required to defend an action there. More importantly, it does not, in my opinion, violate the defendant's due process of law. I would also think that an issue should be raised as to whether the Plaintiff even has a cause of action. Granted, Millenium Music should have done a trademark search prior to naming thier company, but "Millenium" seems so common these days. Would consumers, when seeing the name "Millenium Music" automatically associate it with "Millenium Enterprises." It does seem as though Trademark infringement, if applied broadly, does run contrary to the First Amendment. A lot of interesting issues, though.

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