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CYBERSELL, INC., an Arizona
corporation,
Plaintiff-Appellant,

v.

CYBERSELL, INC., a Florida
No. 96-17087
corporation; WEBHORIZONS, INC., a
D.C. No.
Florida corporation; WEBSOLVERS,
CV-96-00089-EHC
INC., a Florida corporation;
SAMUEL C. CERTO, husband; JANE                        OPINION
DOE CERTO, wife; MATT CERTO,
husband; JANE DOE II CERTO, wife;
CYBERGATE, INC., a corporation;
SPRINTNET, a corporation,
Defendants-Appellees.

Appeal from the United States District Court
for the District of Arizona
Earl H. Carroll, District Judge, Presiding

Argued and Submitted
November 6, 1997--San Francisco, California

Filed December 2, 1997

Before: Harlington Wood, Jr.,* Pamela Ann Rymer, and
A. Wallace Tashima, Circuit Judges.

Opinion By Judge Rymer
SUMMARY 

_________________________________________________________________
COUNSEL

Connie J. Mableson, Phoenix, Arizona, for the plaintiff-
appellant.

Michael R. Levin and Christopher T. Hill, Rumberger, Kirk
& Caldwell, Orlando, Florida, for the defendants-appellees.

_________________________________________________________________

OPINION

RYMER, Circuit Judge:

We are asked to hold that the allegedly infringing use of a
service mark in a home page on the World Wide Web suffices
for personal jurisdiction in the state where the holder of the
mark has its principal place of business. Cybersell, Inc., an
Arizona corporation that advertises for commercial services
over the Internet, claims that Cybersell, Inc., a Florida corpo-
ration that offers web page construction services over the
Internet, infringed its federally registered mark and should be
amenable to suit in Arizona because cyberspace is without
borders and a web site which advertises a product or service
is necessarily intended for use on a world wide basis. The dis-
trict court disagreed, and so do we. Instead, applying our nor-
mal "minimum contacts" analysis, we conclude that it would
not comport with "traditional notions of fair play and substan-
tial justice," Core-Vent Corp. v. Nobel Indus. AB, 11 F.3d
1482, 1485 (9th Cir. 1993) (quoting International Shoe Co. v.
Washington, 
326 U.S. 310, 316
  (1945)), for Arizona to exer-
cise personal jurisdiction over an allegedly infringing Florida
web site advertiser who has no contacts with Arizona other
than maintaining a home page that is accessible to Arizonans,
and everyone else, over the Internet. We therefore affirm.

I

Cybersell, Inc. is an Arizona corporation, which we will
refer to as Cybersell AZ. It was incorporated in May 1994 to
provide Internet and web advertising and marketing services,
including consulting. The principals of Cybersell AZ are Lau-
rence Canter and Martha Siegel, known among web users for
first "spamming" the Internet.1 Mainstream print media car-
ried the story of Canter and Siegel and their various efforts to
commercialize the web.

On August 8, 1994, Cybersell AZ filed an application to
register the name "Cybersell" as a service mark. The applica-
tion was approved and the grant was published on October 30,
1995. Cybersell AZ operated a web site using the mark from
August 1994 through February 1995. The site was then taken
down for reconstruction.

Meanwhile, in the summer of 1995, Matt Certo and his
father, Dr. Samuel C. Certo, both Florida residents, formed
Cybersell, Inc., a Florida corporation (Cybersell FL), with its
principal place of business in Orlando. Matt was a business
school student at Rollins College, where his father was a pro-
fessor; Matt was particularly interested in the Internet, and
their company was to provide business consulting services for
strategic management and marketing on the web. At the time
the Certos chose the name "Cybersell" for their venture,
Cybersell AZ had no home page on the web nor had the PTO
granted their application for the service mark.

As part of their marketing effort, the Certos created a web
page at http://www.cybsell.com/cybsell/index.htm. The home
page has a logo at the top with "CyberSell" over a depiction
of the planet earth, with the caption underneath "Professional
Services for the World Wide Web" and a local (area code
407) phone number. It proclaims in large letters "Welcome to
CyberSell!" A hypertext link2 allows the browser to introduce
himself, and invites a company not on the web -- but inter-
ested in getting on the web -- to "Email us to find out how!"

Canter found the Cybersell FL web page and sent an e-mail
on November 27, 1995 notifying Dr. Certo that "Cybersell"
is a service mark of Cybersell AZ. Trying to disassociate
themselves from the Canters, the Certos changed the name of
Cybersell FL to WebHorizons, Inc. on December 27 (later it
was changed again to WebSolvers, Inc.) and by January 4,
1996, they had replaced the CyberSell logo at the top of their
web page with WebHorizons, Inc. The WebHorizons page
still said "Welcome to CyberSell!"

Cybersell AZ filed the complaint in this action January 9,
1996 in the District of Arizona, alleging trademark infringe-
ment, unfair competition, fraud, and RICO violations. On the
same day Cybersell FL filed suit for declaratory relief with
regard to use of the name "Cybersell" in the United States
District Court for the Middle District of Florida, but that
action was transferred to the District of Arizona and consoli-
dated with the Cybersell AZ action. Cybersell FL moved to
dismiss for lack of personal jurisdiction. The district court
denied Cybersell AZ's request for a preliminary injunction,
then granted Cybersell FL's motion to dismiss for lack of per-
sonal jurisdiction.3 Cybersell AZ timely appealed.
II

[1] The general principles that apply to the exercise of per-
sonal jurisdiction are well known. As there is no federal stat-
ute governing personal jurisdiction in this case, the law of
Arizona applies. Under Rule 4.2(a) of the Arizona Rules of
Civil Procedure, an Arizona court

       may exercise personal jurisdiction over parties,
       whether found within or outside the state, to the
       maximum extent permitted by the Constitution of
       this state and the Constitution of the United States.

The Arizona Supreme Court has stated that under Rule 4.2(a),
"Arizona will exert personal jurisdiction over a nonresident
litigant to the maximum extent allowed by the federal
constitution." Uberti v. Leonardo, 181 Ariz. 565, 569, 892
P.2d 1354, 1358, cert. denied, 116 S. Ct. 273 (1995). Thus,
Cybersell FL may be subject to personal jurisdiction in Ari-
zona so long as doing so comports with due process.

[2] A court may assert either specific or general jurisdiction
over a defendant. See Helicopteros Nacionales de Colombia,
S.A. v. Hall, 
466 U.S. 408, 414
  (1984). Cybersell AZ con-
cedes that general jurisdiction over Cybersell FL doesn't exist
in Arizona, so the only issue in this case is whether specific
jurisdiction is available.

[3] We use a three-part test to determine whether a district
court may exercise specific jurisdiction over a nonresident
defendant:

       (1) The nonresident defendant must do some act or
       consummate some transaction with the forum or per-
       form some act by which he purposefully avails him-
       self of the privilege of conducting activities in the
       forum, thereby invoking the benefits and protec-
       tions[;] (2) [t]he claim must be one which arises out
       of or results from the defendant's forum-related
       activities[; and] (3) [e]xercise of jurisdiction must be
       reasonable.

Ballard v. Savage, 65 F.3d 1495, 1498 (9th Cir. 1995) (cita-
tions omitted).

Cybersell AZ argues that the test is met because trademark
infringement occurs when the passing off of the mark occurs,
which in this case, it submits, happened when the name
"Cybersell" was used on the Internet in connection with
advertising. Cybersell FL, on the other hand, contends that a
party should not be subject to nationwide, or perhaps world-
wide, jurisdiction simply for using the Internet.

A

[4] Since the jurisdictional facts are not in dispute, we turn
to the first requirement, which is the most critical. As the
Supreme Court emphasized in Hanson v. Denckla, "it is
essential in each case that there be some act by which the
defendant purposefully avails itself of the privilege of con-
ducting activities within the forum State, thus invoking the
benefits and protections of its laws." 
357 U.S. 235
, 253
(1958). We recently explained in Ballard that

       the "purposeful availment" requirement is satisfied if
       the defendant has taken deliberate action within the
       forum state or if he has created continuing obliga-
       tions to forum residents. "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."

Ballard, 65 F.2d at 1498 (citations omitted).

We have not yet considered when personal jurisdiction may
be exercised in the context of cyberspace, but the Second and
Sixth Circuits have had occasion to decide whether personal
jurisdiction was properly exercised over defendants involved
in transmissions over the Internet, see CompuServe, Inc. v.
Patterson, 89 F.3d 1257 (6th Cir. 1996); Bensusan Restaurant
Corp. v. King, 937 F. Supp. 295 (S.D.N.Y. 1996), aff'd, No.
96-9344, 1383, 1997 WL 560048 (2d Cir. Sept. 10, 1997), as
have a number of district courts. Because this is a matter of
first impression for us, we have looked to all of these cases
for guidance. Not surprisingly, they reflect a broad spectrum
of Internet use on the one hand, and contacts with the forum
on the other. As CompuServe and Bensusan seem to represent
opposite ends of the spectrum, we start with them. 4

CompuServe is a computer information service head-
quartered in Columbus, Ohio, that contracts with individual
subscribers to provide access to computing and information
services via the Internet. It also operates as an electronic con-
duit to provide computer software products to its subscribers.
Computer software generated and distributed in this way is
often referred to as "shareware." Patterson is a Texas resident
who subscribed to CompuServe and placed items of
"shareware" on the CompuServe system pursuant to a
"Shareware Registration Agreement" with CompuServe
which provided, among other things, that it was "to be gov-
erned by and construed in accordance with" Ohio law. During
the course of this relationship, Patterson electronically trans-
mitted thirty-two master software files to CompuServe, which
CompuServe stored and displayed to its subscribers. Sales
were made in Ohio and elsewhere, and funds were transmitted
through CompuServe in Ohio to Patterson in Texas. In effect,
Patterson used CompuServe as a distribution center to market
his software. When Patterson threatened litigation over alleg-
edly infringing CompuServe software, CompuServe filed suit
in Ohio seeking a declaratory judgment of noninfringement.
The court found that Patterson's relationship with Compu-
Serve as a software provider and marketer was a crucial indi-
cator that Patterson had knowingly reached out to Compu-
Serve's Ohio home and benefitted from CompuServe's han-
dling of his software and fees. Because Patterson had chosen
to transmit his product from Texas to CompuServe's system
in Ohio, and that system provided access to his software to
others to whom he advertised and sold his product, the court
concluded that Patterson purposefully availed himself of the
privilege of doing business in Ohio.

By contrast, the defendant in Bensusan owned a small jazz
club known as "The Blue Note" in Columbia, Missouri. He
created a general access5 web page that contained information
about the club in Missouri as well as a calendar of events and
ticketing information. Tickets were not available through the
web site, however. To order tickets, web browsers had to use
the names and addresses of ticket outlets in Columbia or a
telephone number for charge-by-phone ticket orders, which
were available for pick-up on the night of the show at the
Blue Note box office in Columbia. Bensusan was a New York
corporation that owned "The Blue Note," a popular jazz club
in the heart of Greenwich Village. Bensusan owned the rights
to the "The Blue Note" mark. Bensusan sued King for trade-
mark infringement in New York. The district court distin-
guished King's passive web page, which just posted
information, from the defendant's use of the Internet in
CompuServe by observing that whereas the Texas Internet
user specifically targeted Ohio by subscribing to the service,
entering into an agreement to sell his software over the Inter-
net, advertising through the service, and sending his software
to the service in Ohio,

       King has done nothing to purposefully avail himself
       of the benefits of New York. King, like numerous
       others, simply created a Web site and permitted any-
       one who could find it to access it. Creating a site,
       like placing a product into the stream of commerce,
       may be felt nationwide-or even worldwide-but, with-
       out more, it is not an act purposefully directed
       toward the forum state.

Bensusan, 937 F. Supp. at 301 (citing the plurality opinion in
Asahi Metal Indus. Co. v. Superior Court, 
480 U.S. 102
, 112
(1992)). Given these facts, the court reasoned that the argu-
ment that the defendant "should have foreseen that users
could access the site in New York and be confused as to the
relationship of the two Blue Note clubs is insufficient to sat-
isfy due process." Id. at 301.

[5] "Interactive" web sites present somewhat different
issues. Unlike passive sites such as the defendant's in
Bensusan, users can exchange information with the host com-
puter when the site is interactive. Courts that have addressed
interactive sites have looked to the "level of interactivity and
commercial nature of the exchange of information that occurs
on the Web site" to determine if sufficient contacts exist to
warrant the exercise of jurisdiction. See, e.g., Zippo Mfg. Co.
v. Zippo Dot Com, Inc., 952 F. Supp. 1119, 1124 (W.D. Pa.
1997) (finding purposeful availment based on Dot Com's
interactive web site and contracts with 3000 individuals and
seven Internet access providers in Pennsylvania allowing
them to download the electronic messages that form the basis
of the suit); Maritz, Inc. v. Cybergold, Inc., 947 F. Supp.
1328, 1332-33 (E.D. Mo.) (browsers were encouraged to add
their address to a mailing list that basically subscribed the
user to the service), reconsideration denied, 947 F. Supp.
2448 (1996).

[6] Cybersell AZ points to several district court decisions
which it contends have held that the mere advertisement or
solicitation for sale of goods and services on the Internet gives
rise to specific jurisdiction in the plaintiff's forum. However,
so far as we are aware, no court has ever held that an Internet
advertisement alone is sufficient to subject the advertiser to
jurisdiction in the plaintiff's home state. See, e.g., Smith v.
Hobby Lobby Stores, 968 F. Supp. 1356 (W.D. Ark. 1997) (no
jurisdiction over Hong Kong defendant who advertised in
trade journal posted on the Internet without sale of goods or
services in Arkansas). Rather, in each, there has been
"something more" to indicate that the defendant purposefully
(albeit electronically) directed his activity in a substantial way
to the forum state.

Inset Systems, Inc. v. Instruction Set, Inc., 937 F. Supp. 161
(D. Conn. 1996), is the case most favorable to Cybersell AZ's
position. Inset developed and marketed computer software
throughout the world; Instruction Set, Inc. (ISI) provided
computer technology and support. Inset owned the federal
trademark "INSET"; but ISI obtained "INSET.COM" as its
Internet domain address for advertising its goods and services.
ISI also used the telephone number "1-800-US-INSET." Inset
learned of ISI's domain address when it tried to get the same
address, and filed suit for trademark infringement in Connect-
icut. The court reasoned that ISI had purposefully availed
itself of doing business in Connecticut because it directed its
advertising activities via the Internet and its toll-free number
toward the state of Connecticut (and all states); Internet sites
and toll-free numbers are designed to communicate with peo-
ple and their businesses in every state; an Internet advertise-
ment could reach as many as 10,000 Internet users within
Connecticut alone; and once posted on the Internet, an adver-
tisement is continuously available to any Internet user.

Cybersell AZ further points to the court's statement in
EDIAS Software International, L.L.C. v. BASIS International
Ltd., 947 F. Supp. 413 (D. Ariz. 1996), that a defendant
"should not be permitted to take advantage of modern tech-
nology through an Internet Web page and forum and simulta-
neously escape traditional notions of jurisdiction. " Id. at 420.
In that case, EDIAS (an Arizona company) alleged that
BASIS (a New Mexico company) sent advertising and defam-
atory statements over the Internet through e-mail, its web
page, and forums. However, the court did not rest its mini-
mum contacts analysis on use of the Internet alone; in addi-
tion to the Internet, BASIS had a contract with EDIAS, it
made sales to EDIAS and other Arizona customers, and its
employees had visited Arizona during the course of the busi-
ness relationship with EDIAS.

[7] Some courts have also given weight to the number of
"hits" received by a web page from residents in the forum
state, and to other evidence that Internet activity was directed
at, or bore fruit in, the forum state. See, e.g., Heroes, Inc. v.
Heroes Found., 958 F. Supp. 1 (D.D.C. 1996) (web page that
solicited contributions and provided toll-free telephone num-
ber along with the defendant's use on the web page of the
allegedly infringing trademark and logo, along with other
contacts, provided sustained contact with the District),
amended by No. Civ.A. 96-1260(TAF) (1997); Pres-Kap, Inc.
v. System One, Direct Access, Inc., 636 So.2d 1351 (Fla. Dist.
Ct. App. 1994) (declining jurisdiction where defendant con-
sumer subscribed to plaintiff's travel reservation system but
was solicited and serviced instate by the supplier's local rep-
resentative).

[8] In sum, the common thread, well stated by the district
court in Zippo, is that "the likelihood that personal jurisdiction
can be constitutionally exercised is directly proportionate to
the nature and quality of commercial activity that an entity
conducts over the Internet." Zippo, 952 F. Supp. at 1124.

B

[9] Here, Cybersell FL has conducted no commercial activ-
ity over the Internet in Arizona. All that it did was post an
essentially passive home page on the web, using the name
"CyberSell," which Cybersell AZ was in the process of regis-
tering as a federal service mark. While there is no question
that anyone, anywhere could access that home page and
thereby learn about the services offered, we cannot see how
from that fact alone it can be inferred that Cybersell FL delib-
erately directed its merchandising efforts toward Arizona resi-
dents.

[10] Cybersell FL did nothing to encourage people in Ari-
zona to access its site, and there is no evidence that any part
of its business (let alone a continuous part of its business) was
sought or achieved in Arizona. To the contrary, it appears to
be an operation where business was primarily generated by
the personal contacts of one of its founders. While those con-
tacts are not entirely local, they aren't in Arizona either. No
Arizonan except for Cybersell AZ "hit" Cybersell FL's web
site. There is no evidence that any Arizona resident signed up
for Cybersell FL's web construction services. It entered into
no contracts in Arizona, made no sales in Arizona, received
no telephone calls from Arizona, earned no income from Ari-
zona, and sent no messages over the Internet to Arizona. The
only message it received over the Internet from Arizona was
from Cybersell AZ. Cybersell FL did not have an"800" num-
ber, let alone a toll-free number that also used the "Cybersell"
name. The interactivity of its web page is limited to receiving
the browser's name and address and an indication of interest
-- signing up for the service is not an option, nor did anyone
from Arizona do so. No money changed hands on the Internet
from (or through) Arizona. In short, Cybersell FL has done no
act and has consummated no transaction, nor has it performed
any act by which it purposefully availed itself of the privilege
of conducting activities, in Arizona, thereby invoking the ben-
efits and protections of Arizona law.

[11] We therefore hold that Cybersell FL's contacts are
insufficient to establish "purposeful availment. " Cybersell AZ
has thus failed to satisfy the first prong of our three-part test
for specific jurisdiction. We decline to go further solely on the
footing that Cybersell AZ has alleged trademark infringement
over the Internet by Cybersell FL's use of the registered name
"Cybersell" on an essentially passive web page advertisement.
Otherwise, every complaint arising out of alleged trademark
infringement on the Internet would automatically result in
personal jurisdiction wherever the plaintiff's principal place
of business is located. That would not comport with tradi-
tional notions of what qualifies as purposeful activity invok-
ing the benefits and protections of the forum state. See
Peterson v. Kennedy, 771 F.2d 1244, 1262 (9th Cir. 1985)
(series of phone calls and letters to California physician
regarding plaintiff's injuries insufficient to satisfy first prong
of test).

III

[12] Cybersell AZ also invokes the "effects" test employed
in Calder v. Jones, 
465 U.S. 783
 (1984), and Core-Vent Corp.
v. Nobel Industries, 11 F.3d 1482 (9th Cir. 1993), with respect
to intentional torts directed to the plaintiff, causing injury
where the plaintiff lives. However, we don't see this as a
Calder case. Because Shirley Jones was who she was (a
famous entertainer who lived and worked in California) and
was libeled by a story in the National Enquirer, which was
published in Florida but had a nationwide circulation with a
large audience in California, the Court could easily hold that
California was the "focal point both of the story and of the
harm suffered" and so jurisdiction in California based on the
"effects" of the defendants' Florida conduct was proper.
Calder, 
465 U.S. at 789
. There is nothing comparable about
Cybersell FL's web page. Nor does the "effects " test apply
with the same force to Cybersell AZ as it would to an individ-
ual, because a corporation "does not suffer harm in a particu-
lar geographic location in the same sense that an individual
does." Core-Vent, 11 F.3d at 1486. Cybersell FL's web page
simply was not aimed intentionally at Arizona knowing that
harm was likely to be caused there to Cybersell AZ. 6

IV

[13] We conclude that the essentially passive nature of
Cybersell FL's activity in posting a home page on the World
Wide Web that allegedly used the service mark of Cybersell
AZ does not qualify as purposeful activity invoking the bene-
fits and protections of Arizona. As it engaged in no commer-
cial activity and had no other contacts via the Internet or
otherwise in Arizona, Cybersell FL lacks sufficient minimum
contacts with Arizona for personal jurisdiction to be asserted
over it there. Accordingly, its motion to dismiss for lack of
personal jurisdiction was properly granted.

AFFIRMED.
_______________________________________________________________

FOOTNOTES

*Honorable Harlington Wood, Jr., Senior Circuit Judge, United States
Court of Appeals for the Seventh Circuit, sitting by designation.
1 Spamming refers to the posting indiscriminately of advertisements to
news groups on the web. Unlike crossposting, spamming individually
posts the advertisement to each news group, requiring the recipient to
delete the message from each news group to which she has subscribed.
2 A hypertext link allows a user to move directly from one web location
to another by using the mouse to click twice on the colored link.
3 In its October 21, 1996 judgment, the district court dismissed both of
the consolidated actions.
4 Since Bensusan was decided on the basis of New York's long-arm stat-
ute (which requires presence in the forum and is therefore more stringent
than due process), its holding is not instructive, but the district court's
analysis is. The district court dismissed for lack of personal jurisdiction
under the long-arm statute as well as on due process grounds, while the
Second Circuit affirmed on the statute and did not discuss the constitu-
tional issue.
5 A general access site requires no authentication or access code for
entry. Bensusan, 937 F. Supp. at 297. Thus, the site is accessible to anyone
who has access to the Internet.
6 Likewise unpersuasive is Cybersell AZ's reliance on Panavision Inter-
national v. Toeppen, 938 F. Supp. 616 (C.D. Cal. 1996), where the court
found the "purposeful availment" prong satisfied by the effects felt in Cal-
ifornia, the home state of Panavision, from Toeppen's alleged out-of-state
scheme to register domain names using the trademarks of California com-
panies, including Panavision, for the purpose of extorting fees from them.
Again, there is nothing analogous about Cybersell FL's conduct. the end