NY COURT TO TACKLE NFL SUIT AGAINST CAL WEB SITE

A New York Law Journal article reports that in his ruling, Judge John S. Martin Jr. noted that it has been established by prior court rulings that a Web site operator does not subject himself to the jurisdiction of courts in another state simply because residents of that state visit the site. But he said the difference in the NFL's suit was that the nfltoday.com operator, Ken Miller of Northern California, earned substantial income from interstate commerce -- that is, the revenue from sale of advertising on the Web site, including sports betting ads.

Writing last week in National Football League v. Miller, 99 Civ. 11846, Martin denied Miller's motion to dismiss the league's complaint for lack of subject matter jurisdiction and improper venue.

The NFL contends that Miller made unauthorized use of its trademarks and copyrighted material by providing a hyperlink in his site that connected to the official NFL site. The NFL content appeared in a frame promoting nfltoday.com, Miller's site.

As of last week, the nfltoday.com site carried a legend reading, "As a courtesy to NFL Properties, we have changed the URL [Web site address] and name of NFL Today." Visitors were automatically switched to a site called badbet.com.

Martin said the NFL case was different from those where his colleagues had found no jurisdiction in New York for suits against Web site operations outside the state.

"[I]n those cases there was no evidence that the defendants derived substantial income from interstate commerce and it was far from clear that the defendants' conduct substantially injured the plaintiffs in New York," he said.

Miller must have "recognized that in using the NFL mark to attract people to a site that could pass them on to an electronic bookie, he could do significant damage to the image of the NFL and its marketing efforts in New York, the judge said. Since he apparently profits substantially from the activity that does damage to the plaintiffs in New York, it does not offend due process to require him to defend his actions in a New York courtroom," the judge added.

Miller's contention that the action should be transferred to the Northern District of California where he lives was also rejected. Judge Martin said a greater number of potential witnesses were in New York.

The NFL was represented by Bruce P. Keller and Michael R. Potenza, of New York's Debevoise & Plimpton. William J. Arnone of Merrill, Arnone & Jones in Santa Rosa, Calif., represented Miller.

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