Zippo Test

Internet activities

Courts have struggled with the Internet as a source of minimum contacts, and have essentially settled on the Zippo test, which examines the kind of use to which a defendant's website is being put. Under this test, websites are divided into three categories:

1. passive websites, which merely provide information, will almost never provide sufficient contacts for jurisdiction. Such a website will only provide a basis for jurisdiction if the website itself constitutes an intentional tort such as slander or defamation, and if it is directed at the jurisdiction in question;

2. interactive websites, which permit the exchange of information between website owner and visitors, may be enough for jurisdiction, depending on the website's level of interactivity and commerciality, and the amount of contacts which the website owner has developed with the forum due to the presence of the website;

3. commercial websites which clearly do a substantial volume of business over the Internet, and through which customers in any location can immediately engage in business with the website owner, definitely provide a basis for jurisdiction.

Property as a basis for jurisdiction

The Supreme Court has held that the mere fact of ownership of property within a state is not sufficient to provide minimum contacts for a court to hear cases unrelated to that property. Shaffer v. Heitner, 433 U.S. 186 (1977). However, the property alone provides a sufficient contact for a court having jurisdiction over that geographic area to adjudicate claims relating to the ownership of the property, or relating to injuries which occurred there. In that case, the jurisdiction exercised by the court is referred to in rem jurisdiction (i.e. jurisdiction over the thing), instead of in personam jurisdiction.

The U.S. Congress has enacted legislation which declares internet domain names to be property for the purposes of such jurisdiction. Therefore, when a webpage infringes a trademark, the owner of the trademark can sue in any jurisdiction where the webpage can be viewed - but only for the remedy of transferring ownership of the webpage to the trademark-holder.