Porn Site Wins Round|Against Doppelganger

     (CN) – Noting that “language comprehension is not critical to the entertainment value” of a pornographic website, a federal judge in Virginia declared jurisdiction over a trademark complaint against Swiss-owned Red-Tube.com, a German-language website that is not marketed to American users.



     Swiss Media’s Red-Tube.com has accumulated more than 1.8 million users since 2006, generating about $10 million in revenue. The company registered RedTube as a trademark in Germany and obtained an international mark in Australia, Russia and four Asian countries.
     But the company and its owner, Walter Olligschlager, face a federal lawsuit from Bright Imperial Limited, which operates top-ranking pornography site, RedTube.com. The only difference between the Web addresses for Swiss Media and Bright Imperial sites it the use of the dash.
     Bright Imperial says it owns all of the U.S. trademarks in the Redtube mark, and that Swiss Media exploits those marks in the United States for profit.
     Although fewer than 0.001 percent of Red-Tube.com users provided a Virginia zip code, U.S. District Judge Liam O’Grady refused to throw out the case for lack of jurisdiction.
     “Sixteen of the 1.8 million registered users provided a Virginia zip code, and these sixteen users provided ¬ 1620 of ¬ 8.1 million in revenue through 56 separate transactions,” Grady wrote.
     “Although these numbers might seem trivial in relative terms, when viewed as an absolute value, sixteen contacts is certainly not insignificant,” he added.
     Even if Swiss Media’s contacts in Virginia are very limited, its contacts in the United States as a whole are sufficient to establish jurisdiction, the court found.
     “While only sixteen of the users provided Virginia address, 577 registered users provided addresses within the United States. These users contributed ¬ 64,470 in revenue through 2,002 separate transactions,” the decision states. “Again, the court finds it appropriate to focus on the absolute number of contacts rather than the proportionate number of contacts.”
     Additionally, “there are five amateurs and one affiliate in the United States,” according to the court. “These amateurs uploaded 129 videos, which have been sold approximately 4,800 times, and earned approximately ¬ 25,813 in revenue.”
     “The quality of contact with the amateurs in particular is much more significant than the quality of the contacts with the registered users,” Grady wrote. “Amateurs provide defendants with the very material that defendants ultimately post on their website for profit. Amateurs receive payments on a monthly basis, necessitating repeated interaction with the defendants.”
     Red-Tube.com clearly does not focus on an American audience, given that it is entirely in German and all prices are in euros, but that those facts do not dictate dismissal, the court found.
     “Again, the question is close, but in a world where the economic significance of international borders is on the decline, Red-Tube.com’s use of the German language and denomination in Euros would likely not provide a substantial barrier to United States users,” Grady wrote.
     “The nature of the website’s content suggests that a user need only appreciate its aesthetical aspects,” he added. “Language comprehension is not critical to the entertainment value; thus, the fact that a user only understands English would not likely be prohibitive.”

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