23 November 2001
Source: http://www.kevinspacey.com/decision.pdf

Congratulations to Jeffrey Burgar and defense attorney Eric Grimm.

[16 pages.]

FILED
CLERK, U.S. DISTRICT COURT
NOV 15 2001
CENTRAL DISTRICT OF CALIFORNIA

I.

INTRODUCTION

The present case presents complex issues involving the right of a celebrity to bring suit in United States District Court for the alleged misappropriation of his name by a foreign internet website operator. However, in this order, the Court does not reach these issues; because Defendants raise a novel threshold question regarding the exercise of personal jurisdiction where the Defendants' "contacts" with the forum have occurred in cyberspace. The Court therefore takes up that issue first.

Kevin Spacey, the well-known movie actor, claims Defendant Jeffrey Burgar misappropriated Spacey's name by registering and using the internet website address "kevinspacey.com" without Spacey's authorization. Responding that he needn't obtain authorization, Burgar admits to having registered the address, and to having used the address from 1996 to the present. The undisputed facts establish that from 1996 to about December 2000, those who attempted to access "kevinspacey.com" were routed to Burgar's "Celebrity 1000" website; since then, those typing "kevinspacey.com" into their web browsers have been directed to the "Unofficial Kevin Spacey Website," also operated by Burgar through one of his companies. According to Spacey, Burgar's unauthorized use of Spacey's name in an internet address falsely implies Spacey's endorsement of Burgar's websites, which causes a likelihood of confusion on the part of the public resulting in harm to Spacey's reputation and goodwill. In the pending complaint, Spacey sets forth several claims against Burgar and Kevin Spacey Club (a dba for one of Burgar's corporations), which assert Spacey's intellectual property rights under federal and state statutes, and common law doctrines.

Burgar and Defendant Kevin Spacey Club, now move to dismiss the case under Rule 12(b)(2) of the Federal Rules of Civil Procedure, claiming that this Court lacks personal jurisdiction over him and his company. Burgar contends that he has never purposefully availed himself of the privilege of doing business in California, and that his actions in operating his website were not directed at and caused no "effects" in California. Because such minimum contacts are allegedly missing, Burgar argues that the Court's exercise of jurisdiction in this case would violate the Due Process Clause of the Constitution. Spacey disagrees. He contends that Burgar's website focuses on the entertainment industry, much of which is located in the Los Angeles area, where Spacey spends a substantial amount of time working as a movie actor. Because of his involvement in and connection to the entertainment industry, Spacey argues that Burgar knew or should have known that the harm resulting from the unauthorized use of Spacey's name would occur in California. Finally, Spacey contends that Burgar has purposefully availed himself of the privilege of doing business in California by including "banner ads" on his website that focus on the Los Angeles and Orange County areas. For all of these reasons, Spacey argues that the Court's exercise of personal jurisdiction in this case would comply with the due process requirements of the United States Constitution.

Having read and considered the moving, opposition and reply papers, the authorities cited therein, the supporting affidavits submitted by each of the parties, and the argument of the parties at the hearing on the present motion, the Court concludes that the Due Process Clause of the Constitution precludes the exercise of personal jurisdiction over both nonresident Defendants in the instant action. Although Burgar's website contains information about the entertainment industry and those who work in it, the site is no more aimed at California than at the remaining 49 states, where avid fans seek information regarding their favorite celebrities. The Ninth Circuit's decision in Cybersell, Inc. v. Cybersell. Inc., 130 F.3d 414, 419-20 (9th Cir. 1997) teaches that, without more, the use of an allegedly misappropriated domain name, in connection with a website generally accessible to anyone on the internet, will not support the exercise of personal jurisdiction in the name owner's state of residence. The "something more" is not present in this case, in which the evidence negates any claim that Burgar attempted to sell the domain name to Plaintiffs and fails to establish that Burgar engaged in any significant business with California persons or companies. Accordingly, the Court concludes that Defendants' motion should be GRANTED.

II.

STATEMENT OF FACTS

A. SPACEY'S RESIDENCE AND OCCUPATION

Plaintiff Kevin Spacey, whose primary residence is in New York, is a well-known professional actor who has performed in a number of successful motion pictures. (Spacey Decl. ¶¶ 1 and 2; Lee Decl. Ex. N). Spacey claims to have been a California resident in 1999 and 2000, and for approximately half of 1998. (Spacey Decl. ¶ 3). Spacey owns a California corporation, M. Proffit Productions, Inc., which negotiates with movie production companies for his services. As Spacey puts it, "In other words, M. Profitt is the entity that enters into a contract with the producer of a particular film to provide my personal acting services on productions." (Spacey Decl. ¶ 4). M. Proffit maintains offices on Wilshire Boulevard in the Westwood Village area of Los Angeles.

B. BURGAR'S CORPORATION REGISTERS "KEVINSPACEY.COM

Defendant Jeffrey Burgar resides in Alberta, Canada, where he is the President and principal shareholder of Defendant 641271 Alberta, Ltd., d/b/a Kevin Spacey Club (referenced herein as "Kevin Spacey Club"), a corporation formed and headquartered in Alberta, Canada. (Burgar Aff. ¶¶ 5 and 7; Burgar Supp. Decl. ¶ 6). On November 6, 1996, Kevin Spacey Club registered the internet domain name "kevinspacey.com" and has owned the domain name since that date. (Burgar Aff. ¶ 7). Burgar caused the name to be registered through Network Solutions, Inc., a Virginia corporation, hich has since been acquired by Verisign, Inc. (Burgar Aff. ¶ 14; Burgar Supp. Decl. ¶¶ 17-18).¹ Recently, Kevin Spacey Club changed the registrar/service provider for kevinspacey.com to Mediafusion, a company headquartered in Montreal, Canada. (Burgar Aff. ¶¶ 14 and 41; Burgar Supp. Decl. ¶¶ 17-18).

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1 Kevin Spacy Club is also the present owner of a number of other internet domain names. (Burgar Aff. ¶ 13). Approximately 40 of these other Domain Names comprise the first and last names of persons, which Mr. Burger states are to be used for the publication of fan appreciation websites. (Id).

C. BURGAR LICENSES "KEVINSPACEY.COM" TO A SECOND CORPORATION

Once having registered the domain name, Burgar caused Kevin Spacey Club to enter into a licensing agreement with another of his companies, 831651 Alberta, Ltd., d/b/a Celebrity 1000 (referenced herein as "Celebrity 1000"), under which Kevin Spacey Club authorized Celebrity 1000 to use kevinspacey.com for addressing purposes in its publication of website materials. (Burgar Aff. ¶ 8; Burgar Supp. Decl. ¶ 4). This agreement allowed Celebrity 1000 to divert those attempting to access kevinspacey.com to its address at "celebrity1000.com." (Fryhling Decl. ¶¶ 2-4 anq. Ex. K). Under this agreement, Celebrity 1000 diverted "hits" on "kevinspacey.com to "celebrity1000.com" from 1996 to about December 2000. Beginning in December of 2000, Celebrity 1000 began publishing the "Unofficial Kevin Spacey Website" at the address kevinspacey.com, which is published "under the Celebrity 1000 umbrella ... consistent with the schedule of creating individual celebrity biographical pages." (Burgar Supp. Decl. ¶ 48). The unofficial website contains a photograph of Spacey and a brief biographical sketch.

D. THE OPERATION OF THE WEBSITES

As noted, Burgar resides in Alberta, Canada, which is also the location of the host computers for the Celebrity 1000 web page. (Burgar Aff. ¶ 40; Burgar Supp. Decl. ¶ 34). Thus, when one types the address "celebrity1000.com" into his or her web browser, the browser accesses computer files that reside on a server located in Alberta, Canada, and brings up the Celebrity 1000 "home page." (Id).

The Celebrity 1000 Website focuses on entertainment industry news, offers on-line fan participation polls and other celebrity-related content, and also contains various kinds of advertising. (Burgar Aff. ¶ 21). When one accesses Celebrity 1000, the "home page" provides links to various categories under the heading "Celebrity Guide," which lists the following: "Celebrity Sites," "Entertainment News," "Online Polls," "Merchandise," and "Contact Us." The site routes a visitor who clicks on "Celebrity Guide" to a page that lists celebrity sites by category, including "Actor." A click on the word "actor" routes the visitor to another page that contains links to further pages designated by the actor's name. Thus, if one wished to obtain further information about Kevin Spacey, one would go to the actor link page and click on Spacey's name. A, new page then appears, containing biographical data regarding Spacey. (Gold Decl. ¶¶ 5-7 and Exs. B and C). The Celebrity 1000 Website's homepage also contains a disclaimer which states:

"Information on this site is for information purposes only. Nothing on this site is to be construed as an endorsement by any celebrity or personality, unless expressly so identified, for this site or for any information here."

(Burgar Aff. ¶ 39).

On at least some occasions, the website included so-called "banner" advertisements and hyperlinks to entertainment guides focusing on the Southern California area. One such advertisement acts as a hyperlink that connects the browser to a subscription page for "LAinsider.com," an internet guide to dining establishments, and entertainment and cultural events in the Los Angeles area. (Gold Decl. ¶¶ 10-12 and Exs. D-G). On occasion, the Celebrity 1000 website contained a similar banner advertisement touting "ocnow.com," an internet service similar to LAinsider.com, which serves as an entertainment guide for the Orange County region of Southern California. (Gold Decl. ¶¶ 13-14 and Exs. H and J). No one can reasonably dispute that such banner ads appeared on the Celebrity 1000 website, or that those ads were directed at residents of Southern California. However, because of the complexities of internet advertising, that observation is not the end of the inquiry.

Burgar notes that he did not place those entertainment guide advertisements on his website. Rather, he presents evidence, in the form of his declaration, that Celebrity 1000 first contracted with VBN, a Canadian internet advertising placement agency, for the placement of banner ads on the Celebrity 1000 website. (Burgar Supp. Decl. ¶ 32). According to Burgar, VBN bought ad space on the website for a fee, after which VBN was free to market the space to any advertiser who was interested in buying the space. Also according to Burgar, VBN entered into contracts with advertisers, but Celebrity 1000 entered into a contractual relationship only with VBN, and never had a direct contractual relationship with any of the advertisers who bought space on the site. (Id).

Though the host computers for the files that constitute the "LAinsider.com" and "ocnow.com" web pages have not been definitively identified, those files do not reside on Defendants' computers.² When one accesses the Celebrity 1000 site and clicks on the banner advertisement, the visitors browser retrieves data from another server, in this case, according to Burgar, VBN's servers in Toronto, Canada. (Burgar Supp. Decl. ¶¶ 34-35, 45 and 49).³

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2 These two entertainment cites are apparently related to one another. The LAinsider.com site provides a link to "our" ocnow.com cite, and both are operated by Cox Interactive Media, Cox Communications. (Gold Decl. Exs. F, G, J).

3 Also according to Burgar, in June 2000, unbeknownst to him, VBN was purchased by the Boston, Massachusetts based company, Engage Media. Engage Media Canada also has servers in Toronto. Upon learning of this sale, Burgar claims to have terminated Celebrity 1000's relationship with Engage Media. (Burgar Supp. Decl. ¶ 36).

E. SPACEY'S DEMAND FOR REASSIGNMENT OF "KEVINSPACEY.COM"

In September 2000, Plaintiffs wrote Mr. Burgar requesting the assignment of kevinspacey.com. (Compl. Ex. F). Defendants chose not to respond and remain unwilling to sell the domain name. (Compl. Ex. F; Burgar Aff. ¶¶ 9 and 38; Burgar Supp. Decl. ¶ 14).

III.

ANALYSIS

A. STANDARD FOR RULE 12(b)(2) MOTION TO DISMISS

In a motion to dismiss for lack of personal jurisdiction, the plaintiff bears the burden of proof with respect to the relevant jurisdictional facts where the court holds an evidentiary hearing on the motion. Ballard v. Savage, 65 F.3d 1495, 1497 (9th Cir. 1995). If no hearing is conducted and the court makes no findings of fact, a plaintiff satisfies this burden by alleging facts that, if true, would support an exercise of jurisdiction over the defendant. Ballard v. Savage, 65 F.3d at 1498; Data Disc, Inc. v. Systems Tech. Assocs., Inc., 557 F.2d 1280, 1283 (9th Cir. 1977); Callaway Golf Corp. v. Royal Canadian Golf Ass'n, 125 F.Supp.2d 1194,1199 (C.D. Cal. 2000). Here the Court has reviewed the detailed affidavits submitted by the parties, considered the admissibility of the evidence offered in support and opposition to the motion, and made the findings set forth above. Accordingly, the Court concludes that Plaintiffs bear the burden of establishing the requisite jurisdictional facts to pursue their claim, and must make more than a prima facie showing, which would be the case where a hearing was not held.

B. THE CONSTITUTIONAL REQUIREMENTS FOR EXERCISING PERSONAL JURISDICTION

In deciding whether the Court's exercise of jurisdiction over a defendant is proper, the law of the state in which it sits should be applied. Panavision Int'l. L.P. v. Toeppen, 141 F.3d 1316, 1320 (9th Cir. 1998); Callaway Golf Corp., 125 F.Supp.2d at 1199. The long arm statute of California allows the Court to exercise personal jurisdiction over a nonresident defendant to the same extent as that permitted by the Due Process Clause of the Constitution. Id. The Constitution requires that a defendant have minimum contacts with the forum state such that the exercise of jurisdiction does not violate "traditional notions of fair play and substantial justice." Calder v. Jones, 465 U.S. 783, 788 (1984)(citing International Shoe Co. v. Washington, 326 U.S. 310, 316 (1945)).

Personal jurisdiction may be founded on either general or specific jurisdiction. Panavision, 141 F.3d at 1320. Because Plaintiffs concede that the Court has no basis for exercising "general" jurisdiction, this motion focuses entirely on the requirements for exercising "specific jurisdiction." The Ninth Circuit has developed a three part test to apply when determining whether exercise of specific jurisdiction over a particular defendant is proper.

(1) The nonresident defendant must do some act or consummate some transaction with the forum or perform some act by which he purposefully avails himself of the privilege of conducting activities in the forum, thereby invoking the benefits and protections of its laws; (2) the claim must be one which aries out of or results from the defendant's forum-related activities; and (3) exercise of jurisdiction must be reasonable.

Panavision, 141 F.3d at 1320; Callaway Golf Corp., 125 F.Supp.2d at 11 99-1200.

1. Purposeful Availment

The purposeful availment requirement is satisfied by "deliberate action" on the part of the nonresident defendant toward the forum state. Panavision, 141 F.3d at 1320 (citing Ballard, 65 F.3d at 1498). "It is not required that a defendant be physically present within, or have physical contacts with, the forum, provided that his efforts 'are purposefully directed' toward forum residents." Burger King Corp. v. Rudzewicz, 471 U.S. 462, 476 (1985). In the context of tort actions, this element can be satisfied by conduct that "is aimed at or has an effect in the forum state." Panavision, 141 F.3d at 1320 (citing Ziegler v. Indian River County, 64 F.3d 470, 473 (9th Cir. 1995)). This variant on "purposeful availment," the so-called "effects test," was established in Calder v. Jones, 465 U.S. 783 (1984). Under that test, a court may properly exercise personal jurisdiction where there is shown to be "(1) intentional actions (2) expressly aimed at the forum state (3) causing harm, the brunt of which is suffered - and which the defendant knows is likely to be suffered - in the forum state." Core-Vent v. Nobel Indus., 11 F.3d 1482, 1486 (9th Cir. 1993).

2. Purposeful Availment and the Internet

Two cases in this circuit have addressed the purposeful availment element in the context of the internet. In Cybersell, Inc. v. Cybersell, Inc., 130 F.3d 414, 419-20 (9th Cir. 1997), Cybersell-FL registered and used the domain name "cybersell.com," which was a service mark owned by Cybersell-AZ. Cybersell-AZ argued both that Cybersell-FL had purposely availed itself of the privilege of doing business in Arizona because of the nature and quality of its contacts with the state, and because of the "effects" the infringement would have in Arizona. The court disagreed. The court held that an exercise of personal jurisdiction over the nonresident defendant was not appropriate where the only contact defendant had with the forum state was the maintenance of a web page generally accessible over the internet, even though the web page solicited business from those who accessed the site. With respect to "effects," the court concluded that "Cybersell FL's web page was not aimed intentionally at Arizona knowing that harm was likely to be caused there to Cybersell AZ," even though it allegedly utilized Cybersell AZ's service mark as its internet domain name. Id. at 420. For both reasons, the Ninth Circuit concluded that the district court could no t exercise personal jurisdiction over the Florida defendant. Id.

In Panavision, however, the court affirmed an exercise of personal jurisdiction over a nonresident defendant because defendant's alleged out of state scheme to register domain names, which incorporated trademarks of California companies, yielded effects primarily felt in the forum state of California. See 141 F.3d at 1318. The court wrote:

[T]he present case is akin to a tort case. [Defendant] purposefully registered Panavision's trademarks as his domain names on the Internet to force Panavision to pay him money. The brunt of the harm to Panavislon was felt in California. [Defendant] knew Panavision would likely suffer harm there because, although at all relevant times Panavisi on was a Delaware limited partnership, its principal place of business was in California, and the heart of the theatrical motion picture and television industry is located there.

Id. at 1321 (citations omitted)(emphasis added). The Panavision court found that the defendant had registered Panavision's domain name "for the purpose of extorting money from Panavision," which was conduct that defendant knew would likely injure Panavision in California, where its business was centered. Thus, the court concluded, "under the 'effects test,' the purposeful availment requirement necessary for specific, personal jurisdiction is satisfied." Id. at 1322.

3. Analysis of Defendants' Conduct in This Case

(a) Business Contacts

Plaintiffs argue that Defendants' cyberspace activities constitute purposeful availment of the privilege of conducting activities in the forum because their activities allegedly extend beyond mere registration and use of the internet address kevinspacey.com. According to Plaintiffs, these additional activities include the solicitation of advertisements from California businesses directed toward California consumers, and the negotiation for their placement on the Celebrity 1000 website. Notably, however, Plaintiffs provide only two specific examples of the alleged conduct, the placernent of banner ads for "LAinsider.com" and for "ocnow.com." This evidence falls short of establishing "purposeful availment" in several respects. First, Plaintiffs have presented evidence showing only that these specific ads ran for a few days each during a limited period of time, and have not provided any evidence that similar ads were placed and run at any other time. Second, although the ads deal with entertainment in the Southern California area, Plaintiffs present no evidence that California businesses own and operate the two internet-based guides, or that Burgar holds an ownership interest in either the guides or the companies advertised in the guides. Third, Plaintiffs have not presented evidence that the named Defendants, in this case arranged for the placement of the "LAinsider.com" and "ocnow.com" banners ads on the Celebrity 1000 website. In contrast, Defendants present a detailed explanation regarding the sale of the banner ad space to a third party where that third party then negotiated with advertisers for the placement of banner ads. Thus, given the dearth of evidence regarding the volume of advertising business placed on the website, the unknown domicile of the business owners of the two allegedly relevant advertisements, and the attenuated involvement of Defendants with those allegedly relevant ads, the Court concludes that the conduct falls short of "purposeful availment" as that term is used in personal jurisdiction jurisprudence.

In an apparent effort to overcome these deficiencies, Plaintiffs assert that Defendants solicit California advertisers for the Celebrity 1000 website by making public the website's demographic information. (Compl. ¶ 31 and Ex. D; Opp. at 9). Based on this information, Plaintiffs contend that Burgar purposefully availed himself of the privilege of doing business in California by deriving a financial benefit from California, even if such benefit occurred by way of an advertising broker. (Compl. ¶ 31; Opp at 9). The argument will not withstand analysis.

First, the evidence establishes that Engage Media -- not Burgar or his companies -- publishes the demographic data on which Plaintiffs base the argument that California residents make more use of the site than users in any other state. (See Opp. at 9; Fryhling Decl. ¶ 3 and Ex. L). Moreover, the supposed demographic data consists of the briefest of conclusions with no foundational backup. The Court lacks even the most basic information regarding the statistical methodology used to develop that information, and therefore lacks any means of testing the conclusions reached by those who collected the data. Further, the Court finds this lack of foundational information even more troubling given the surveyors incredible conclusion that 100% of the users who have accessed the website reside in only three states -- California, Texas and New York. The Court finds such an assertion inherently unbelievable, particularly when the website, accessible worldwide, supposedly derives 75% of all traffic from the United States. (See Burgar Supp. Decl. ¶ 37). While the Court acknowledges that the entertainment industry is a major employer in Southern California, the desire for information about show business celebrities -- however frivolous an interest that may be -- extends even to the hinterlands where television has been available for going on six decades. Though the site contains information about many who live and work in the media centers of New York and Los Angeles, its appeal undoubtedly extends far beyond those locales. How far may not be known, but certainly any claim that the site is of no interest to, and has not been accessed by, any resident in 47 of the 50 states must be rejected.

Absent any reliable evidence that Defendants were involved in the solicitation and negotiation of advertisement placements, and that such placements included forum-based contracts, conclusory statements on the matter are insufficient. See GTE News Media Servs. Incorp. v. Bellsouth Corp., 199 F.3d 1343, 1349; see also Nissan Motor Co. v. Nissan Computer Corp., 89 F.Supp.2d 1154, 1159-60 (C.D. Cal. 2000)(finding defendant's transaction of business in California satisfied the purposeful availment test where specific evidence existed illustrating defendant's personal involvement in contracts with forum companies to display company advertising banners and links on his website). Therefore, the Court concludes Plaintiffs have failed to meet their burden of demonstrating that Burgar engaged in commerce with California sufficient to warrant the exercise of personal jurisdiction over the Defendants.

(b) "Effects"

Because insufficient evidence has been presented to show that the Defendants entered into advertising contracts with California businesses, or entered into any other kind of contractual arrangement with any California entity, the Court concludes that Defendants have not, in that respect, "purposefully availed" themselves of the privilege of doing business in California. For that reason, the Court next turns to the Calder "effects" doctrine, as applied to the internet context in Cybersell and Panavision.

Whether the "effects test" confers jurisdiction on the Court turns on whether this case is more similar to Cybersell or to Panavision.⁴ Cybersell teaches that the misappropriation of a service mark, which the misappropriater then uses as a domain name, does not satisfy the effects test even when the misappropriater operates a web page accessed through that domain name. Because the website could be accessed by any person with internet access, the Ninth Circuit concluded that the website operator's conduct was not expressly aimed at the forum state, and that its effects could not be said to be felt primarily in that state. 130 F.3d at 419-20. This Court further notes that the Cybersell court reached this decision even though the alleged infringer operated a website that solicited business from internet users, and advertised an e-mail address and a telephone number through which the website owners could be contacted. Id. at 415-16. Even so, the Ninth Circuit concluded that, without something more, such conduct failed to satisfy the minimum contacts required to warrant the exercise of personal jurisdiction over the defendant. Consistent with that analysis, Panavision advises that the "something more" would include an attempt to extort money out of a trademark owner who was attempting to retrieve control over the use of that mark from the misappropriater. 141 F.3d at 1322.

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4 The parties argue over the applicability of Pavlovich v. Superior Court, 91 Cal. App. 4th 409 (2001). owever, that case involved the theft of aCalifornia company's trade secrets, and the repeated re-publication f those trade secrets on the internet, where knowledge of the trade secrets could be used to defeat encryption based copy protection systems with the ultimate objective of permitting the misappropriation of opyrighted motion pictures, The defendant admitted that both the computer technology industry and the motion picture industry had a substantial presence in California; that 73 of the 400 companies licensed to produce motion picture DVD's were located in California; that the pirating of copyrighted DVD's was illegal; and that his software promoted such pirating. That defendant's actions were directed toward California businesses, and that potentially enormous effects would be felt in California could hardly be debated. Whatever one may say about the ethics of Burgar's conduct in this case, it is not remotely similar to Pavlovich's concerted assault on a variety of California based businesses.

Here that additional element is missing. Unlike the cybersquatter in Panavision, Burgar and the Kevin Spacey Club have never demanded money frorm Spacey in exchange for the transfer of the registered domain name, and insist that they have no intention of doing so. Indeed, when Plaintiffs made an offer to purchase the name -- perhaps seeking to bring themselves within the scope of Panavision -- Defendants never responded. Nevertheless, Plaintiffs insist that Defendants misappropriated Spacey's name, used it in connection with a website that is "aimed" at the Southern California entertainment industry, and knew that the harm to Spacey's reputation and goodwill would be felt primarily in Southern California. That argument differs little from the unsuccessful argument made by Cybersell-AZ, the owner of a registered mark and a company doing business in Arizona, where the brunt of the harm from the misappropriation of the mark was likely to occur in Arizona. In the Court's view, the likelihood that Spacey would be injured in California is no greater than the likelihood that Cybersell-AZ would suffer injury in Arizona. The Court disagrees with the premise that the site at issue is aimed at Southern California or at the entertainment industry. While the website focuses on celebrities and the entertainment industry as a subject, it appears aimed at fans who live and work all over the world, and who want information regarding even the most banal aspects of the lives of their favorite celebrities. Moreover, unlike the alleged misappropriater in Cybersell, the operator of a related, if not competing, business to that operated by the service mark owner, the offending website in this case promotes the adulation of the listed celebrities, whether or not the celebrity authorized the listing. The Celebrity 1000 website expressly disclaims any endorsement of the site by the listed celebrities, and nothing in the evidence presented, or in anything the Court has found by accessing Burgar's site, contains any derogatory statement about Spacey.

For these reasons, the Court concludes that Burgar's conduct does not meet the "effects" test for the exercise of in personam jurisdiction in this case.

4. Forum-Related Activities and Reasonableness

Because the Court concludes that Plaintiffs have failed to show that Burgar purposefully availed himself of the privilege of doing business in California under any version of that test, the Court need not determine whether the basis for the assertion of jurisdiction involved Defendants' forum related activities, or that the exercise of jurisdiction would be reasonable.

IV.

CONCLUSION

For the reasons set forth above, Defendants' motion to dismiss for lack of personal jurisdiction is GRANTED.

IT IS SO ORDERED.

DATED: November 14, 2001

[Signature]
Gary Allen Feess
United States District Judge

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