Facebook and Twitter Marketing Not Enough to Establish Personal Jurisdiction in EDVA Patent Case

September 12, 2013, 10:51 PM

Plaintiff Intercarrier Communications LLC (ICC) sued defendant Kik Interactive, Inc. (Kik) for patent infringement in the Eastern District of Virginia. Kik is a Canadian corporation with its principal place of business in Ontario, Canada. The allegedly infringing product, the Kik Messenger, is a free app which allows users to send and receive text, picture, audio and video messages over an internet connection rather than through their phone carriers network. Defendant Kik filed a Motion to Dismiss for Lack of Personal Jurisdiction alleging that ICC could not establish that Kik had sufficient minimum contacts with Virginia. In order for an exercise of personal jurisdiction over a defendant to comport with constitutional due process, it must be established that the defendant has continuous and systematic contacts with the forum state OR that the cause of action arose out of or related to the defendants contact with the forum state. International Shoe Co. v. Washington, 326 U.S. 310, 316 (1945); Burger King Corp. v. Rudzewicz, 471 U.S. 462, 472-73 (1985); Goodyear Dunlop Tires Operations, S.A. v. Brown, 131 S. Ct. 2846, 2851 (2011).

After conceding that the Canadian Defendant did not have continuous and systematic contacts with Virginia, ICC alleged jurisdiction over Kik was appropriate since: 1) Kik purposefully availed itself of the privileges of conducting activities in Virginia by providing products and services to customers in Virginia, and 2) Kik consistently promotes itself via . . . Facebook and Twitter which . . . reach directly into Virginia. The Richmond district court rejected both arguments and held that Kiks world-wide marketing does not meet the purposeful availment standard to support specific personal jurisdiction. The district court went on to explain that [t]his patent dispute is between Texas and Canadian companies. Although some Virginia residents presumably use the popular Kik Messenger, no evidence exists to show that Virginia residents use this software proportionally more than residents of any other state. This case is a reminder that establishing personal jurisdiction over a defendant is the first hurdle to intellectual property litigation in the Eastern District of Virginia and that the worldwide marketing of products through social media platforms like Facebook and Twitter alone will not establish a sufficient connection to Virginia. Intercarrier Communications LLC v. Kik Interactive Inc.(Gibney) No. 3:12cv771, Aug. 9, 2013. --Lauren Tallent Rogers