Seattle Trademark Lawyer

You gotta love it when the Ninth Circuit says it doesn’t believe one of the litigants.

That’s pretty much what happened Aug. 8 when it reviewed the Southern District of California’s order dismissing the defendant in CollegeSource, Inc. v. AcademyOne, Inc.

In that case, plaintiff CollegeSource sued AcademyOne for unfair competition, misappropriation, and a number of computer-based claims on the ground that its competitor in the business of helping students transfer colleges had taken material from its websites.

AcademyOne, a Pennsylvania company, moved to dismiss based on its lack of contacts with California. After jurisdictional discovery, the district court granted AcademyOne’s motion.

CollegeSource appealed, which led the Ninth Circuit to find it didn’t buy AcademyOne’s story that it didn’t purposefully avail itself to the California forum. Here’s a sample of what AcademyOne was selling that the court wasn’t buying:

“AcademyOne’s assertion that it was unaware of College-Source’s California place of business prior to its receipt of the cease-and-desist letter is implausible, to say the least. CollegeSource and AcademyOne were direct competitors in a relatively small industry. Three AcademyOne employees registered for trial memberships with CollegeSource in order to evaluate their competitor’s product. AcademyOne’s vice president for marketing, Johnson, telephoned and emailed a CollegeSource sales representative in 2005, seeking to purchase CollegeSource’s catalogs. AcademyOne’s executive director for product strategy, Munkittrick, sent several emails to CollegeSource’s CEO in 2005 and 2006 seeking to schedule conference calls. CollegeSource’s CEO, Cooper, declared, ‘Our California phone number and address is prominently displayed on our website’s ‘Contacts’ page.’ It is unclear how AcademyOne employees would have learned to contact the relevant officers at CollegeSource other than through the latter’s website or a reference that would have made CollegeSource’s California location clear. It is difficult to believe that a conference call could have been scheduled without consideration of the time zones (and therefore the locations) of the participants.” 

The court added: “It is also difficult to believe that AcademyOne, a newcomer to the college transfer market, was unaware of the location of its principal competitor, which it contacted several times in order to propose a business relationship. In any case, it is undisputed that AcademyOne maintained the misappropriated catalogs on its websites for several months before delivery of the cease-and-desist letter — and CollegeSource alleges, for several weeks thereafter — affording ample opportunity for AcademyOne’s employees to encounter CollegeSource’s URL and terms of use, and so to discovery that the catalogs came from CollegeSource. We also note that CollegeSource had earlier rebuffed AcademyOne’s attempts to purchase this very material. AcademyOne’s assertion that it was fortunate enough to obtain for free, unintentionally and unknowingly, the material that it had once unsuccessfully attempted to purchase strains credulity.”

Since the Court found AcademyOne had purposefully availed itself to California, it concluded the district court erred in finding it lacked personal jurisdiction over the dispute.

The case cite is CollegeSource, Inc. v. AcademyOne, Inc., __ F.3d __, 2011 WL 3437040, No. 08-1987 (9th Cir. Aug. 8, 2011).