## Facts

- Plixer International, Inc., a Maine corporation, owned a U.S. registered trademark for “Scrutinizer” for anti-malware software and related goods and services.
- Scrutinizer GmbH, a German corporation based in Kassel, operated an online code-analysis service under the name “Scrutinizer” through an interactive English-language website.
- Users could sign up online, receive a 14-day free trial, and then purchase subscriptions; Scrutinizer used third-party hosting integrations (e.g., GitHub) to analyze customer code in its cloud environment.
- Scrutinizer had no U.S. office, phone number, or agent for service; directed no advertising specifically at the United States; and did not send employees to the United States for business.
- Scrutinizer accepted payment only in euros and used a standard contract selecting German law and German courts for contract disputes.
- Over roughly January 2014 to June 2017, Scrutinizer sold subscriptions to 156 U.S. customers in 30 states, generating €165,212.07 (about $200,000 as of mid-2017).
- Plixer sued in federal court alleging Lanham Act trademark infringement and related claims, asserting confusion in the U.S. market from Scrutinizer’s use of the same name.
- Scrutinizer moved to dismiss for lack of personal jurisdiction; Plixer relied on Federal Rule of Civil Procedure 4(k)(2) to base jurisdiction on Scrutinizer’s nationwide U.S. contacts.
- The district court (on a prima facie record) denied the motion, finding specific personal jurisdiction under Rule 4(k)(2); the jurisdictional issue was certified for interlocutory appeal.

## Issues

1. Whether a federal court may exercise specific personal jurisdiction under Federal Rule of Civil Procedure 4(k)(2) over a foreign company based on its nationwide, internet-based sales to U.S. customers, consistent with the Fifth Amendment’s Due Process Clause.
2. Whether the defendant’s U.S. customer relationships and revenue through an interactive website constitute purposeful availment of the United States as a forum.
3. Whether the asserted Lanham Act trademark claims sufficiently arise out of or relate to the defendant’s U.S. contacts, and whether exercising jurisdiction is reasonable.

## Decision

- The First Circuit affirmed the denial of the motion to dismiss for lack of personal jurisdiction.
- Rule 4(k)(2)’s textual requirements were satisfied: the claims arose under federal law; the defendant was not shown to be subject to general jurisdiction in any single state; and the constitutional question turned on due process.
- Scrutinizer purposefully availed itself of the United States by engaging in recurrent, profit-seeking subscriptions with 156 U.S. customers across 30 states through an interactive website.
- The trademark claims related to the U.S. contacts because the alleged infringement occurred through providing the challenged service to U.S. users under the disputed name, with alleged U.S. market confusion.
- Exercising jurisdiction was reasonable: while litigation burdened a foreign defendant, the United States had a substantial interest in enforcing federal trademark law affecting U.S. consumers and a U.S. mark owner, and the defendant did not make a compelling case that jurisdiction would be unfair.
- The court emphasized the holding was fact-specific and declined to announce broad rules for internet-based jurisdiction under Rule 4(k)(2).

## Legal Principles

- Federal Rule of Civil Procedure 4(k)(2) permits personal jurisdiction in federal-question cases based on a defendant’s contacts with the United States as a whole when the defendant is not subject to jurisdiction in any single state and due process is satisfied.
- For Rule 4(k)(2) specific jurisdiction, purposeful availment, relatedness, and reasonableness are assessed with the United States (not any one state) as the relevant forum.
- Continuous, commercial, internet-based provision of services to U.S. customers for profit can establish purposeful availment even without U.S.-specific advertising or physical presence.
- Lanham Act claims alleging U.S. market confusion can “arise out of or relate to” a defendant’s U.S. sales and service delivery using the allegedly infringing mark.
- Once minimum contacts are shown, the defendant must make a compelling showing that exercising jurisdiction would be unreasonable under fair-play factors.

## Conclusion

The First Circuit held that a foreign company’s sustained, subscription-based online sales to U.S. customers supported Rule 4(k)(2) specific personal jurisdiction in a Lanham Act case because the claims related to those U.S. contacts and exercising jurisdiction was fair under Fifth Amendment due process.


Plixer Int’l, Inc. v. Scrutinizer GmbH, 905 F.3d 1 (1st Cir. 2018)