Few decisions in litigation are more important than choosing where to file suit. This is particularly true in trademark cases, in which the plaintiff may have the opportunity to pick and choose among many venues where a mark is being infringed. A plaintiff may prefer its home forum, where the court and jury pool likely will be familiar with the mark and favorably inclined toward a local employer; or the plaintiff may seek out elsewhere beneficial state laws on unfair competition or dilution.
Yet the trademark litigator selecting a venue may stumble on one of the trickiest and most rapidly evolving areas of civil procedure: trying to wedge the World Wide Web into International Shoe. Squeezing the facts that arise in 2007 into the 1945 framework of International Shoe Co. v. State of Washington, et al. — the U.S. Supreme Court holding that the exercise of personal jurisdiction over a nonresident defendant must not violate traditional notions of fair play and substantial justice — can test even the most savvy trademark lawyer. This article will provide a brief overview of trends in recent Texas court opinions on Internet-based personal jurisdiction in trademark cases and suggest how to make sure that what’s filed here, stays here.
