Facebook's Trademark Suit Against Faceporn Is Dismissed

Mon, May 21 2012 02:45pm PDT

SAN JOSE, Calif. — The legal showdown between Facebook and Faceporn is officially over after a federal judge today dismissed the case based on lack of jurisdiction.

The win for Faceporn operator Thomas Pedersen of Bergen, Norway, comes months after a U.S. magistrate judge recommended the case dismissed for that reason.

The stakes were high for Pedersen in the case as Palo Alto, Calif.-based Facebook earlier this year  moved for entry of a default judgment against him. The social network also asked for attorneys fees, as well as the transfer of a number of domains — FacePorn.com, FacePorn.net and FacePorn.org (the sites currently redirect to Faceporn.no).

In March, however, U.S. Magistrate Judge Nathaniel Cousins ruled that Facebook's suit didn't pass the Calder test and likely could not continue.

The so-called Calder test requires that the nonresident defendant commit an intentional act, that was expressly aimed at the forum state and that caused harm that the nonresident defendant knew would likely be suffered in the forum state.

Facebook failed the second test, Cousins ruled, saying the social network "does not put forth factual allegations that suggest that confusion actually has occurred or that any of Facebook’s potential customers have been sidetracked to Faceporn’s website as a result of defendants’ conduct."

Facebook initiated the suit in October 2010, claiming Pedersen's sites promulgate brand tarnishment, dilution or confusion.

At the time, Facebook said that Faceporn "blatantly copied the Facebook logo, site and Wall trademark." Screen shots filed with the lawsuit show some Facebook-like elements, including Wall postings and a similar blue-and-white color scheme. Instead of poking, Faceporn users sent "flirts."

But Faceporn.com and the other sites eventually became tube sites shortly after Facebook filed suit.

Today, U.S. District Judge Jeffrey White dismissed Facebook's case against Pedersen and the Faceporn properties.

"The court has reviewed Magistrate Judge Nathanael M. Cousins’ report and recommendation regarding [Facebook's] motion for default judgment," White wrote. "The court has received no objections. The court finds the report correct, well-reasoned and thorough, and adopts it in every respect. Accordingly, the court denies [Facebook]’s motion for default judgment and dismisses this action for lack of personal jurisdiction."   

Pedersen said that he's anticipated Monday's ruling from the U.S. District Court in San Jose, Calif., for quite some time.

"But it's a relief to finally get this out of the way and be able to fully focus on the future and further develop our company," Pedersen told XBIZ. "From the very start I have felt that a Californian court was the wrong venue for this lawsuit, since I do not live in the U.S., but with the rise in 'illegal' U.S. domain seizures the past years I was never very confident about the outcome.

"Considering I did not have counsel in the U.S. to fight jurisdiction on my behalf ... it's a big relief to finally see justice prevail."

Officials at Facebook, which just last week made its initial public offering, did not comment to XBIZ by post time. 

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