(November 1, 2017) A United Kingdom company sending a single newsletter to a small number of recipients in California where the company has no customers is not sufficient to maintain a copyright infringement lawsuit in the United States.
The Ninth Circuit affirmed the dismissal of the case brought by Axion Foods, Inc. and Growing Naturals, LLC against Acerchem UK Limited. All the parties sell health and nutritional products.
In November 2014, Acerchem sent a newsletter promoting its rice protein products to 343 email addresses. Included in the email were Axion’s logos “As Good as Whey” and “Non-GMO.” Axion and General Naturals then registered the logos with the U.S. Copyright Office and filed the lawsuit for copyright infringement. The trial court dismissed the case for lack of personal jurisdiction.
The appellate court affirmed using the purposeful direction test. While finding that Acerchem committed an “intentional act” by using the logos, the appellate court said there was no evidence to support a finding that the action was expressly aimed at California. The appellate court found that of the 343 email addresses, 55 of the recipients were with companies in California, but there was no evidence the recipients themselves resided in California. Acerchem alleged that no more than 10 of the newsletter recipients were physically located in California and that the company does not conduct any business there.
Because “Acerchem UK sent one newsletter to a maximum of ten recipients located in California in a market where Acerchem UK has no sales or clients” and because the “alleged infringement barely connected Acerchecm UK to California residents, much less to California itself,” there was no personal jurisdiction to maintain the case, the appellate court held.
Axiom Foods, Inc. and Growing Naturals, LLC v. Acerchecm UK Limited, Ninth Cir. No. 15-56450, filed November 1, 2017.