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10. As regards an interactive website, it is submitted that for jurisdiction of the forum court to get attracted, there should be an intention on the part of the website owner to target potential customers in the forum state. This intention can be presumed unless the website owner demonstrates "purposeful avoidance" by placing filters or blocking off the website to viewers outside the state within whose territory he is located. Where the owner has not applied his mind to target a specific city, region or state, but if some „effect‟ is nevertheless felt in the forum state, the forum court would have jurisdiction. It is submitted that when there is no intention to target a specific city or a customer and there is no effect on the market, the forum court would have no jurisdiction. Learned counsel for the Plaintiff has relied on a large number of judicial precedents, including those of foreign courts, in support of his plea that this court has jurisdiction to entertain the suit. These will be discussed presently. The questions that arise are examined with reference to the development of the law in common law jurisdictions particularly the U.S.A., the U.K., Canada, Australia and India.

21. There have been difficulties experienced in the application of the Zippo sliding scale test in terms of which the assertion of a court‟s jurisdiction depended upon the "level of interactivity and commercial nature of the exchange of information" as a result of the use of the website. The courts have been finding it problematic in determining the degree of interactivity that should suffice for jurisdiction to be attracted. Mere ability to exchange files with users through the internet has been held not to be sufficiently „interactive‟ for the forum court to assume jurisdiction (Desktop Technologies v. Colourworks Reproduction & Designs Inc 1999 WL 98572 (E.D.Pa. 1999). In People Solutions v. People Solutions 2000 WL 1030619 (N.D.Tex., 2000), although it was possible for customers visiting the Defendant‟s website to download information, obtain product brochures and order products on-line, the court refused to assert jurisdiction since the Plaintiff failed to show that Defendant had sold its products or contracted for services with any person in the forum state through the website. Again in Mink v. AAAA Development 190 F.3d 333 (5th Cir. 1999) although the Defendant‟s website offered printable mail-in order forms that could be downloaded, provided a toll-free number, a mailing and an e-mail address, the forum court declined to exercise jurisdiction since in fact no orders were placed using the website. The levels of interactivity now demanded are of a much higher order. In Winfield Collection v. McCauley 105 F.Supp.2d 746 (E.D.Mich,2000) the website provided an interactive mechanism of doing on-line business and the Plaintiff showed that auction sales were conducted over the net with bidders in Michigan. Nevertheless jurisdiction was declined because the Defendant was not shown as having "actively and intentionally doing business with customers in Michigan." It was held that the form of on-line sale made it impossible for the Defendant‟s website to target the users of any particular state and therefore other than the court of the state where the principal place of the business of the Defendant was located, other state courts could not exercise jurisdiction. Since over the years, most websites are interactive to some degree, there has been a shift from examining whether the website is per se passive or active to examining the nature of the activity performed using the interactive website. The „Effects‟ test

26. The courts in the U.S.A. have adopted a combination of the "Zippo sliding scale test" and the Calder "effects" test in examining whether the forum court has jurisdiction in a case involving infringement by use of the internet. Recently in Toys "R" US, v. Step Two, 318 F.3d 446 (2003), the US Court of Appeals revisited the issue. In that case, the Plaintiff, Toys "R" Us (Toys), a Delaware corporation with its headquarters in New Jersey, owned retail stores worldwide where it sold toys, games, and numerous other products. In August 1999, Toys acquired Imaginarium Toy Centers, Inc., which owned and operated a network of "Imaginarium" stores for the sale of educational toys and games. In this process, Toys also acquired several Imaginarium trademarks. The Defendant, Step Two, a Spanish corporation owned or franchised toy stores operating under the name "Imaginarium" in Spain and nine other countries. It had registered the Imaginarium mark in several countries where its stores were located. At the time of trial, there were 165 Step Two Imaginarium stores having the same unique facade and logo as those owned by Toys, and selling the same types of merchandise as Toys sold in its Imaginarium stores. However, Step Two did not operate any stores, maintain any offices or bank accounts, or had any employees anywhere in the United States. In 1995, Imaginarium Toy Centers, Inc. (which Toys later acquired) registered the domain name and launched a web site featuring merchandise sold at Imaginarium stores. In 1996, Step Two registered the domain name , and began advertising merchandise that was available at its Imaginarium stores. In April 1999, Imaginarium Toy Centers registered the domain name , and launched another web site where it offered Imaginarium merchandise for sale. In June 1999, Step Two registered two additional "Imaginarium" domain names, and . In May 2000, Step Two registered three more domain names: , net>, and . Toys brought action against Step Two alleging that Step Two used its Internet web sites to engage in trademark infringement, unfair competition, misuse of the trademark notice symbol, and unlawful "cybersquatting". The District Court of New Jersey denied Toys' request for jurisdictional discovery and, simultaneously, granted Step Two's motion to dismiss for lack of personal jurisdiction. However, the Court of Appeals held that the record did not support the finding that the Defendant Step Two knowingly conducted business with residents of New Jersey. It reversed and remanded the case for limited jurisdictional discovery relating to Step Two's business activities in the United States. The Court emphasized that "the mere operation of a commercially interactive website should not subject the operator to jurisdiction anywhere in the world. Rather, there must be evidence that the Defendant "purposefully availed" itself of conducting activity in the forum state, by directly targeting its website to the state, knowingly interacting with residents of the forum state via its website, or through sufficient other related contacts".

45. This court holds that in order to prima facie establish that the Defendant purposefully availed of the jurisdiction of this court, the Plaintiff would have to show that the Defendant engaged in some commercial activity in the forum State by targeting its website specifically at customers within that State. This is consistent with the law laid down in Cybersell and reiterated later in Toys R Us. It is also consistent with the application of the „tighter‟ version of the „effects‟ test which is „targeting‟. In any action for passing off or infringement, it would have to be shown that the Defendant by using its mark intended to pass off its goods as that of the Plaintiff‟s. A mere hosting of a website which can be accessible from anyone from within the jurisdiction of the court is not sufficient for this purpose. Also a mere posting of an advertisement by the Defendant depicting its mark on a passive website which does not enable the Defendant to enter into any commercial transaction with the viewer in the forum state cannot satisfy the requirement of giving rise to a cause of action in the forum state. Even an interactive website, which is not shown to be specifically targeted at viewers in the forum state for commercial transactions, will not result in the court of the forum state having jurisdiction. In sum, for the purposes of Section 20