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Weiss v. Barc, Inc.

United States District Court, Second Circuit

May 29, 2013

BOB WEISS, Plaintiff
v.
BARC, INC. Defendant.

OPINION

THOMAS P. GRIESA, District Judge.

Pro se plaintiff, Bob Weiss, brings this case against Barc Inc. ("Barc") alleging causes of action under federal and common law, claiming trademark infringement, unfair competition, and unjust enrichment. The complaint alleges that both Weiss's BARK mark and defendant's BARC mark are used in connection with online social networking services. Weiss claims that Barc's use of the BARC mark infringes on his trademark rights in BARK. Defendant Barc has moved to dismiss the complaint pursuant to Fed R. Civ. P. 12(b)(2) on the ground that this court lacks personal jurisdiction over Barc because its only contact with New York is operating a website accessible to anyone with an internet connection.

The court grants the motion to dismiss for lack of personal jurisdiction.

The Complaint

The Parties

Weiss is an individual residing in New York and the registered owner of the BARK trademark. Since 2007, Weiss has used the BARK name in connection with computer software services including "connecting social network users with businesses that study the patterns and behaviors of consumers." Para 7. Weiss has also used the BARK mark to provide an online forum for users to share information including photo, audio, and video content about themselves, and receive feedback from peers.

The parties do not dispute that Barc is a corporation formed under the laws of California, with its principal place of business at San Diego, California. Barc operates a social networking site under the domain name www.barc.com, which Weiss alleges "is in direct competition with the services that Plaintiff offers under his BARK mark." Barc describes its business as providing software that allows users of online digital media to share information, links, or communications with other users.

Causes of Action

Weiss brings four causes of action related to challenging BARC's use of the BARC name in connection with online services. First, Weiss claims that under 15 U.S.C. §§ 1114-1116, the BARC mark infringed on Weiss's trademark rights in BARK. Second, Weiss asserts a claim under 15 U.S.C. § 1125(a) for unfair competition and false designation of origin. Third, Weiss makes certain claims under the common law.

Jurisdiction

The complaint alleges two bases under which this court has personal jurisdiction over Barc. The complaint claims that Barc "engages in continuous business activities in, and directed to the State of New York... by offering and providing online and computer related services via its website www.barc.com." In addition, the complaint claims that Barc "has committed tortious acts aimed at and causing harm within the State of New York."

Legal Standard

In order to survive a motion to dismiss for lack of personal jurisdiction, a plaintiff must establish a prima facie showing that such jurisdiction exists. Thomas v. Ashcroft , 470 F.3d 491, 495 (2d Cir. 2006). A proper prima facie showing requires the plaintiff to make "averment[s] of facts that if credited would suffice to establish jurisdiction over the defendant." In re Magnetic Audiotape Antitrust Litig. , 334 F.3d 204, 206 (2d Cir. 2003). While the court presumes the truth of plaintiff's allegations for the purposes of the motion to dismiss, "mere conclusory allegations are insufficient to support a prima facie showing of personal jurisdiction." Indem. Ins. Co. of N. Am. V. K-Line, Am. Inc., 06 CV 0615, 2007 WL 1732435, at *3 (S.D.N.Y. June 14, 2007). In deciding a Rule 12(b)(2) motion, a court can "consider affidavits and documents submitted by parties without converting the motion into one for summary judgment." ESI Inc. v. Coastal Corp. , 61 F.Supp.2d 35, 50 n.54 (S.D.N.Y. 1999).

Because this is a federal question case and the federal statute, the Lanham Act, does not provide for national service of process, the court applies the forum state's personal jurisdiction rules - New York. PDK Labs, Inc. v. Friedlander , ...


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