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Test Buying Personal Jurisdiction

Posted by James Juo | Jun 15, 2023 | 0 Comments

Whether personal jurisdiction can be established through “test buys” or strawman sales may depend on the district in which those purchases were made.


In California, a defendant's online sales to a national marketplace do not constitute the kind of California-focused conduct necessary to show express aiming for specific personal jurisdiction. See, e.g., P & P Imports LLC v. OJCommerce, LLC, 2019 WL 8012690, at *2 (C.D. Cal. Oct. 4, 2019) (“[M]arketing and selling to California residents through Defendants' website or is insufficient to establish personal jurisdiction.”); Tart Optical Enters., LLC v. Light Co. Ltd., 2019 WL 9048862, at *13 (C.D. Cal. Aug. 7, 2019) (“[O]peration of a general website selling goods throughout the United States is not sufficient to establish purposeful direction.” (cleaned up); Graco Minn. Inc. v. PF Brands, Inc., 2019 WL 1746580, at *4 (S.D. Cal. April 17, 2019) (“District courts have declined to find express aiming based on alleged sales of products that infringe intellectual property rights through commercial, interactive websites accessible to California consumers.” (cleaned up)).

Similarly, purchasing infringing products from a defendant, and having them shipped to California, also would be insufficient on its own. “[A] plaintiff cannot manufacture personal jurisdiction in a trademark case by purchasing the accused product in the forum state.” Am. DJ Supply Inc. v. Am. Pro Int'l Corp., 2013 WL 12123768, *4 (C.D. Cal. 2013); see also Theos Med. Sys., Inc. v. Nytone Med. Prod., Inc., 2020 WL 500511, at *6 (N.D. Cal. Jan. 31, 2020) (“[A] plaintiff cannot manufacture personal jurisdiction in a case by making such purchases in the forum state.”); Adobe Sys., Inc. v. Nwubah, 2019 WL 6611096, at *7 (N.D. Cal. Dec. 5, 2019) (stating that such “‘evidentiary buys' . . . are simply the kind of ‘random, fortuitous, [ ] attenuated contacts that depend on Plaintiff's contacts with the forum, not the contacts of Defendant”); Clarus Transphase Scientific, Inc. v. Q-Ray, Inc., 2006 WL 2374738, at *3 n.3 (N.D. Cal. Aug. 16, 2006) (“A plaintiff cannot manufacture personal jurisdiction in a trademark case by purchasing the accused product in the forum state.”); MGA Ent., Inc. v. Cabo Concepts Ltd., 2021 WL 4733784, *4 (C.D. Cal. 2021) (finding insufficient to show express aiming plaintiff's allegation that “California residents could and did purchase [the infringing] products from [defendant]'s website or sites linked to it” with “shipping to California readily available as evidenced by plaintiff's counsel's purchase of [the infringing] products,” because such conduct failed to show “that [defendant] had a [California]-specific focus and that it chose to target California”).

Recently, the Central District of California held that “test buys” by a plaintiff who ordered accused infringing products from a defendant through the marketplace and received them at plaintiff's California address was insufficient to established personal jurisdiction over the defendant in California. Oceanside Health Products LLC v. InStock Goodies Inc., No. 8:23-cv-00266 (C.D. Cal. May 2, 2023) (a notice of appeal to the Ninth Circuit was filed on May 31, 2023).

The Court further noted that while the fact that Plaintiff is located in California and experienced the harm there once may have been adequate to establish individual targeting and express aiming, it now is inadequate standing on their own to establish minimum contacts under the Supreme Court's holding in Walden v. Fiore, 571 U.S. 1115 (2014).

Other Jurisdictions.

As noted by Professor Eric Goldman, however, other jurisdictions are more open to test buys establishing personal jurisdiction.

Indeed, other courts have found personal jurisdiction even where product sales occurred through and were fulfilled by Amazon. See, e.g., Standard Process, Inc. v. KDealz Ltd. Co., No. 17-cv-909-jdp, 2018 WL 3059673, at *3 (E.D. Wis. Jun. 20, 2018) (“[t]he fact that [defendant] conducts [the business of selling the products at issue online] through Amazon doesn't shield it from personal jurisdiction any more than shipping products via FedEx would”); Leach v. Pharmedoc Inc., No. CIV-16-1034-M, 2017 WL 943959, at *2 (W.D. Okla. Mar. 9, 2017) (finding defendant's sale and shipment of the allegedly infringing products to residents of the state through sufficient to satisfy the minimum contacts); Telebrands Corp. v. Mopnado, No. 2:14-07967 (JLL) (JAD), 2016 WL 368166, at *6-7 (D. N.J. Jan. 12, 2016) (holding that the defendant purposefully availed itself of the privilege of doing business in the state by selling its products to the state's residents via, report and recommendation adopted, No. 14-7967 (JLL) (JAD), 2016 WL 355072 (D. N.J. Jan. 28, 2016); Otter Products, LLC, et al. v. Phone Rehab, et al., No. 1:19-cv-00206-RM-MEH (D. Colo. Sept. 27, 2019) (“having a website that a customer in the forum state can access and on which the customer can purchase the alleged infringing product, provides a basis for a court's exercise of personal jurisdiction”).

As one court has explained, “[s]ellers cannot expect to avail themselves of the benefits of the internet-created world market that they purposefully exploit and profit from without accepting the concomitant legal responsibilities that such an expanded market may bring with it.” Dedvukaj v. Maloney, 447 F. Supp. 2d 813, 820 (E.D. Mich. 2006).


The District of Colorado also has found personal jurisdiction where the activity that established purposeful availment—i.e., Defendants' sales of allegedly infringing products into Colorado—is the same activity that gave rise to Plaintiffs' claims. And it did not matter that some of the sales into Colorado were to the plaintiff. Otter Prods., LLC, et al. v. Big Birds, LLC, et al., No. 19-cv-00626-DME-KLM, ECF No. 39 at 3 (D. Colo. Aug. 9, 2019) (noting that even if all of the purchases in Colorado were made by Plaintiffs themselves, “Defendants still voluntarily and knowingly made these sales to a Colorado resident, thus purposely directing their activity to Colorado,” which “cannot be said to be the result of [Plaintiffs'] unilateral actions”).

The attorneys at Thomas P. Howard, LLC litigate cases nationwide including in Colorado.

About the Author

James Juo

James Juo is an experienced intellectual property attorney. He has successfully litigated various intellectual property disputes involving patents, trademarks, copyrights, and trade secrets. He also has counseled clients on the scope and validity of patent and trademark rights.


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