Canadian Mattress Dealer|Can’t Dismiss Texas Suit

     DALLAS (CN) – Tempur-Pedic International can sue a Canadian company for selling its mattresses over the Internet without permission because some of the products were sold and shipped to American buyers, a federal judge in Dallas ruled.

     The Delaware-based Tempur-Pedic sued Go Satellite dba Cloud 9 Mattress for trademark infringement because the Canadian company was selling Tempur-Pedic-brand mattresses on two of its websites – cloud9mattress.us and cloud9mattress.ca – without permission from Tempur-Pedic.
     Go Satellite dba Cloud 9 Mattress had tried to dismiss Tempur-Pedic’s claims for lack of jurisdiction, but Judge Sidney Fitzwater denied the motion because “the infringing acts concern Go Satellites’ sales to United States (including Texas) residents, and Go Satellite sold and transported infringing good into the United States,” Fitzwater wrote (parentheses in original).
     Tempur-Pedic asked Go Satellite to remove the mattresses from their websites, but the unauthorized seller instead switched internet service providers and continued operating the websites.
     “The websites had a ‘live chat’ pop-up window, and the ‘cloud9mattress.us’ website advertised a toll-free number, e-mail, no sales tax in all 50 states, and an offer to deliver anywhere in the 48 contiguous states at no extra charge,” Fitzwater wrote. “Through these websites, which both sides admit were interactive and available to anyone with anyone with Internet access, Go Satellite sold at least three Tempur-Pedic mattresses to Texas residents.”
     One of Go Satellite’s Texas sales was to a private investigator Tempur-Pedic hired. “During a telephone call with the investigator, the Go Satellite sales agent informed the investigator that Go Satellite had sold products to Texas residents before,” the ruling states.
     Go Satellite, which is based in Coquitlam, British Columbia, also operates an eBay account that sells Tempur-Pedic mattresses and “offers a special shipping rate for residential curb delivery to Texas residents,” Fitzwater wrote.
     “Plaintiffs allege that, in total, defendants have a 12-year history running d/b/a entities such as Cloud 9 Mattress and operate at least 39 additional websites other than www.gosatellite.com and the Cloud 9 websites, with nearly all such sites registered to the same TCP/IP address and some sharing the same telephone numbers as www.gosatellite.com,” according to the order. “Defendants counter that Go Satellite has only been in existence for six years and that Go Satellite has resold Tempur-Pedic mattresses through its Cloud 9 websites for about three months.”
     Fitzwater explained that even though Go Satellite CEO Steven Hutt claimed in the company’s motion to dismiss that “he has never traveled to Texas, owned any property in Texas, maintained any bank accounts in Texas, transacted or solicited any business in Texas, caused tortious injury in Texas, or contracted in his personal capacity to provide services or goods in Texas,” the fact that Go Satellite sold and shipped Tempur-Pedic mattresses to Texas residents grants the court jurisdiction.
Hutt is a co-defendant in the lawsuit by Tempur-Pedic and three affiliates, Tempur-Pedic Management, Tempur-Pedic North America and Dan-Foam ApS.

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