Users’ Downloading and Use in the U.S. of Allegedly Infringing App Sold by Canadian Company Fails to Support Personal Jurisdiction

The World in U.S. Courts: Fall 2013 - Personal Jurisdiction | August.09.2013

Intercarrier Communications LLC v. Kik Interactive, 2013 U.S. Dist. LEXIS 112715 (E.D. Va. Aug. 9, 2013)

Plaintiff Intercarrier Communications alleged Defendant Kik Interactive infringed its patent with its product, Kik Messenger, a mobile app. The Kik Messenger allows users to send texts, pictures, audio, and video messages over an internet connection, as opposed to a phone carrier’s data network. Although Kik Messenger is widely available, including in Virginia, Kik Interactive is headquartered in Canada. Plaintiff alleged Kik was subject to jurisdiction “in every single forum in which a user sends and receives a message with the Kik Messenger.” However, the Court rejected this premise, holding that a company does not consciously or deliberately target a forum by a user’s unilateral download and use. Furthermore, Kik’s Facebook and Twitter promotion of the product could not be construed as purposeful availment of a particular jurisdiction, even though it is widely available in that jurisdiction. As such, the Court held Kik’s conduct and broad marketing activities could not satisfy personal jurisdiction, resulting in the dismissal of the case.

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