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Domain monetizing involves registering domain names that are variations of

trademark protected domain names for the purpose of turning Internet traffic into

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

WEATHER UNDERGROUND, INC., a Michigan

corporation, 

Plaintiff,

v.

NAVIGATION CATAYLST SYSTEMS, INC., a

Delaware corporation; CONNEXUS CORP., a

Delaware corporation; FIRSTLOOK, INC., a

Delaware corporation, and EPIC MEDIA

GROUP, INC., a Delaware corporation,

Defendants.

 /

CASE NO. 09-10756

HON. MARIANNE O. BATTANI

OPINION AND ORDER DENYING CONNEXUS CORPORATION, 

FIRST LOOK, INC. AND EPIC MEDIA GROUP, INC.’S MOTION 

TO DISMISS FOR LACK OF PERSONAL JURISDICTION

This matter is before the Court on Defendant Connexus Corporation, Firstlook, Inc.,

and Epic Media Group, Inc.’s (hereinafter “Added Defendants”) Motion to Dismiss for Lack

of Personal Jurisdiction (Doc. No. 149). The Court has reviewed the relevant filings and

finds oral argument is unnecessary. See E. D. Mich. LR 7.1(f)(2). For the reasons that

follow, Defendants’ motion is DENIED.

I. INTRODUCTION AND PROCEDURAL BACKGROUND

Plaintiff Weather Underground filed suit against several Defendants, alleging

violations of federal and state law. According to Plaintiff, Defendants, who are in the

business of domain monetizing,1

 had registered domain names with various misspellings

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monetary gain or selling the domain to the trademark holder. (See Doc. No. 147, ¶¶ 60,

65); HCB, LLC v. Oversee.net, No. 2007-29, 2009 WL 2996578 at *2, n.1 (D. V.I. Sept.

16, 2009). 

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of Plaintiff’s web properties to redirect its customers to competitors and third-party

advertisers. (Doc. No. 1.) Specifically, Defendants registered, trafficked in, and used 264

domain names that are typographical or other deviations of Plaintiff’s trademarks. (Doc.

No. 147, Exs. T, U.)

In its initial complaint, Weather Underground included as defendants, Navigation

Catalyst Systems, Inc. (“NCS”), Basic Fusion, Inc. (“Basic Fusion”), Connexus Corp.

(“Connexus”), and Firstlook, Inc. (“Firstlook”). Defendants moved for dismissal, arguing

lack of personal jurisdiction. The Court granted the motion in part, and dismissed

Connexus, Basic Fusion, and FirstLook for lack of personal jurisdiction. The Court

concluded that it could exercise personal jurisdiction over NCS, and allowed the case to

proceed in this forum. (See Doc. No. 21.) NCS moved for reconsideration, which the

Court denied. NCS also asked the Court to stay this matter pending the Supreme Court’s

decision in Hertz, Corp. v. Friend, 130 S. Ct. 1181 (2010), which the Court likewise denied.

(Doc. No. 30.) After the Supreme Court decided Hertz, NCS moved for summary judgment

on its affirmative defense of lack of personal jurisdiction based upon the Hertz decision.

(Doc. No. 122.) Again, the Court denied the motion.

Thereafter, Plaintiff successfully sought leave to amend its complaint. The First

Amended Complaint (FAC) again named Connexus and Firstlook as Defendants, and

added as a Defendant, Epic Media Group, Inc., which acquired Connexus on May 4, 2010.

In the First Amended Complaint (FAC), Plaintiff alleges that the Court has personal

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jurisdiction over Added Defendants because they have “(a) committed intentional and

tortious acts within this State; (b) conducted substantial business within this State related

to the unlawful activity at issue. . .; and (c) otherwise have availed themselves of this

forum.” (FAC, ¶ 22.)

II. STATEMENT OF FACTS

Plaintiff, Weather Underground, Inc. (“Weather Underground”), is a weather service,

incorporated in Michigan. (Doc. No. 147, FAC, ¶ 1.) It has developed “the world’s largest

network of personal weather stations,” is multilingual, provides services through mobile

devices, and its website attracts fourteen million visitors each month–eleven million from

the United States. (FAC, ¶¶ 28-32.) It has registered over 125 domain names; the majority

incorporate its trademarks and service marks. (FAC, ¶ 37.) Plaintiff has been in business

via the Internet as a commercial entity since 1995. (FAC, ¶ 24.)

According to Plaintiff, typosquatting, a form of cybersquatting, relies on mistakes

such as topographical errors made by Internet users when inputting a trademark protected

website address into a web browser. Typosquatters use qwerty typos, letter swaps, and

sticky keys to generate traffic on high traffic trademark-protected domain names. (FAC,

¶ 57.) These errors can be predicted through the use of error data, which show domain

names that have not been registered, yet receive traffic. (FAC, ¶ 55.) 

Defendants use software that generates a Parked Page that includes

advertisements for other weather web sites and Plaintiff’s competitors. “Defendants’

business model is to monetize traffic of trademark protected domains, and when a

trademark holder complains, sends a threat letter, or files a complaint, Defendants turn

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over the infringing domains.” (FAC, ¶ 65.) 

NCS is the bulk registrant of domain names. Firstlook, which is the parent company

of NCS, monetizes the domain names registered by NCS. Connexus is the parent

company of Firstlook. According to Added Defendants, Epic operates Connexus as a

wholly-owned subsidiary. (Doc. No. 149, Decl. of Charles Nowaczek at ¶¶ 2, 3.) 

On August 18, 2008, Plaintiff filed a complaint against NCS with the National

Arbitration Forum in accordance with ICANN’s Uniform Domain Name Dispute Resolution

policy. The panel ordered that forty-one domain names domain names be transferred to

Plaintiff. (FAC, ¶76.) Thereafter, Plaintiff became aware of other infringing domains.

In the First Amended Complaint (FAC), Plaintiff alleges that Connexus and Firstlook

provided NCS with the instrumentalities to accomplish the complained of acts. (FAC at ¶¶

11-14.) Plaintiff alleges that NCS is a shell company with no employees, bank accounts,

or tangible assets, (FAC, ¶ 6), that Epic has accepted the liabilities of Frirstlook, NCS, and

Connexus, or is otherwise subject to liabilities under law (FAC, ¶ 9), that each is the “agent,

servant, employee, partner, alter ego, subsidiary, or joint venture” of the other Defendants.

(FAC ¶ 15.)

Added Defendants seek dismissal for lack of personal jurisdiction pursuant to FED.

R. CIV. P. 12(b)(2). 

III. STANDARD OF REVIEW

Rule 12(b)(2) of the Federal Rule of Civil Procedure governs dismissal for lack of

personal jurisdiction. As the party bringing suit in a Michigan forum, Weather Underground

bears the burden of establishing that the Court may exercise personal jurisdiction over

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each Defendant. See Neogen Corp. v. Neo Gen Screening, Inc., 282 F.3d 883, 887 (6th

Cir. 2002). Because the Court is resolving this issue solely upon the written record, without

an evidentiary hearing, Plaintiff “need only make a prima facie showing of jurisdiction.”

Neogen Corp., 282 F.3d at 887 (internal quotation marks and citation omitted).

To make this showing, Plaintiff must “establish[ ] with reasonable particularity

sufficient contacts between Defendants and the forum state to support jurisdiction.” Neogen

Corp., 282 F.3d at 887 (internal quotation marks and citation omitted). More specifically,

Plaintiff must demonstrate that the Court's exercise of personal jurisdiction over each

Defendant is “both (1) authorized by the law of the [forum state, Michigan], and (2) in

accordance with the Due Process Clause of the Fourteenth Amendment.” Id. at 888. As

the Court considers whether Plaintiff has met its burden, it does not “consider facts

proffered by the defendant[s] that conflict with those offered by the plaintiff, and will

construe the facts in the light most favorable to” Plaintiff as the non-moving party. Id. at

887.

IV. ANALYSIS

When a federal court’s subject matter jurisdiction over a case stems from the

existence of a federal questions, two requirements must be met for the court to exercise

personal jurisdiction over a defendant: (1) the defendant must be amenable to service of

process under the forum state’s long-arm statute, and (2) the exercise of personal

jurisdiction must not deny the defendant due process. Bird v. Parsons, 289 F.3d 865, 871

(6th Cir. 2002). In this case, the parties do not contest whether the first factor is met, only

the second. Nor do the parties contend that the Court may exercise general jurisdiction.

Accordingly, the Court directs its attention to whether the exercise of specific personal

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jurisdiction over these Defendants would violate due process.

The Supreme Court has held that in order to subject a nonresident defendant to

personal jurisdiction, due process requires that it must “have certain minimum contacts with

[the forum state] such that the maintenance of the suit does not offend ‘traditional notions

of fair play and substantial justice.’” Int’l Shoe Co. v. Washington, 326 U.S. 310, 316

(1945) (quoting Milliken v. Meyer, 311 U.S. 457, 463 (1940)). Specific jurisdiction

subjects the defendant to actions in the forum state arising out of or relating to the

defendant’s contacts with that state. Helicopteros Nacionales de Colombia v. Hall, 466

U.S. 408, 414 (1984). In determining whether the exercise of specific personal jurisdiction

is proper, the Sixth Circuit follows the three-prong test originally articulated in S’ern Mach.

Co. v. Mohasco Indus., Inc., 401 F.2d 374, 381 (6th Cir. 1968).

First, the defendant must purposefully avail himself of the privilege of acting in the

forum state or causing a consequence in the forum state. Second, the cause of

action must arise from the defendant’s activities there. Finally, the acts of the

defendant or consequences cause by the defendant must have a substantial

enough connection with the forum state to make the exercise of jurisdiction over the

defendant reasonable.

Calphalon Corp. v. Rowlette, 228 F.3d 718, 721 (6th Cir. 2000) (citing Mohasco, 401 F.2d

at 381).

A. Purposeful Availment.

“[P]urposeful availment” means that the defendant’s “contacts proximately result

from the actions by the defendant himself that create a ‘substantial connection’ with the

forum State. Burger King Corp. v. Rudzewicz, 471 U.S. 462, 475 (1985) (emphasis in

original) (quoting McGee v. Int’l Life Ins. Co., 355 U.S. 220, 223 (1957)). This purposeful

availment requirement “ensures that a defendant will not be haled into a jurisdiction solely

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as a result of ‘random,’ ‘fortuitous,’ or ‘attenuated’ contacts, or of the ‘unilateral activity of

another party or a third person.’” Id. at 475 (quoting Keeton v. Hustler Magazine, 465 U.S.

770, 774 (1984)).

In Hanson v. Denckla, 357 U.S. 235, 250-51 (1958), the Supreme Court recognized

that the duty of a federal court in assessing personal jurisdiction must be sensitive to

changes in technology. Here, the Court must consider whether to exercise jurisdiction

over Added Defendants, who did not physically enter Michigan, but used the Internet to

commit the challenged conduct. Although the Supreme Court has never adopted a

specialized test to assess personal jurisdiction in light of Internet activity, in Zippo Mfg.

Co. v. Zippo Dot Com, Inc., 952 F. Supp. 1119, 1124 (W.D. Pa. 1997), the district court

concluded that “the likelihood that personal jurisdiction can be constitutionally exercised

is directly proportionate to the nature and quality of commercial activity that an entity

conducts over the Internet.” In Zippo, the court introduced a “sliding scale” approach, or

the “Zippo test.” 

At one end of the spectrum are situations where a defendant clearly does

business over the Internet. If the defendant enters into contracts with

residents of a foreign jurisdiction that involve the knowing and repeated

transmission of computer files over the Internet, personal jurisdiction is

proper. At the opposite end are situations where a defendant has simply

posted information on an Internet Web site which is accessible to users in

foreign jurisdictions. A passive Web site that does little more than make

information available to those who are interested in it is not grounds for the

exercise of personal jurisdiction. The middle ground is occupied by

interactive Web sites where a user can exchange information with the host

computer. In these cases, the exercise of jurisdiction is determined by

examining the level of interactivity and commercial nature of the exchange

of information that occurs on the Web site.

Id. at 1124. The Sixth Circuit has used the sliding scale approach. See Neogen Corp.,

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282 F.3d at 890 (“A defendant purposefully avails itself of the privilege of acting in a state

through its website if the website is interactive to a degree that reveals specifically

intended interaction with residents of the state.”).

The parties disagree as to how to characterize Defendant’s websites under the

Zippo test. Added Defendants admit that NCS owns various domain names where it hosts

various websites and that Michigan residents can view the websites. Nevertheless, they

conclude that the websites are passive because no commercial activity occurs. Instead,

the web sties contain hyperlinks to other third-party web sites. Therefore, Added

Defendants conclude that there is no personal jurisdiction over Firstlook, Connexus, or

Epic under Zippo. The Court disagrees. 

First, the mere designation of a website as passive, does not resolve the issue, it

merely aids the analysis. Even if the websites were deemed passive, the considerations

that drive the analysis are whether those websites share a nexus to the cause of action,

and more particularly, whether they were used to intentionally harm the plaintiff in the

forum. Second, the Court finds the characterization of the websites as passive defies the

means by which Defendants conduct their domain monetizing business. They establish

and register domain names for the purpose of turning Internet traffic into monetary gain

through the use of click through traffic. In monetizing a domain, advertisements are placed

on “parked” domain names as a means by which to “generate revenue for both the party

that owns the domain and the party that places the advertisement.” HCB, LLC v.

Oversee.net, No. 2007-29, 2009 WL 2996578 at *2, n.1 (D. V.I. Sept. 16, 2009). “When

an internet user visits the ‘parked’ domain name, he or she is shown advertisements

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provided by search engines and other providers of pay-per-click advertising. These

advertisers pay the domain monetizing specialists, who in turn pay the owner of the

‘parked’ domain name.” Id. Thus, when a visitor comes to a website on a NCS-owned

domain and clicks on a hyperlink, the visitor is transported away from the NCS domain. 

Here, Defendants are alleged to have carefully selected “keyword optimizers” to

maximize profits. The more relevant the keywords, the more likely the user will stay put

and use the links on the parking page. Thus, the Court, which must accept the allegation

in the light most favorable to Weather Underground, is satisfied that Defendants clearly do

business over the Internet. Further, Defendants’ business does not involve a fortuitous

contact with a Michigan resident. They traded on Weather Underground trade and service

marks, and according to Plaintiff, knowingly redirected income from Plaintiff’s domain

names to their own. Here, a nexus exists between the website and the cause of action in

that defendants used their typosquatted website with the intent to harm Plaintiff in

Michigan. Under these facts, the Court concludes that Added Defendants purposefully

availed the forum, and were on notice that they may be subject to suit in Michigan. 

In the alternative, the exercise of personal jurisdiction based on the effects test

articulated in Calder v. Jones, 465 U.S. 783 (1984), is appropriate under these facts for the

reasons stated in the Court’s Opinion and Order Granting in Part and Denying in Part

Defendants’ motion to Dismiss Pursuant to Fed. R. Civ. P. 12(b)(6) or, in the Alternative,

Transfer (Doc. No. 23), and Opinion and order Denying Navigation Catalyst Systems, inc.’s

Motion for Summary Judgment on its Affirmative Defense of Lack of Personal Jurisdiction

(Doc. No. 169).

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In their motion, Added Defendants raise an argument specific to the issue of

whether Epic could have “expressly aimed its conduct” at Michigan inasmuch as Epic did

not acquire Connexus until after the conduct giving rise to the claims. It is undisputed that

the most recent registration of a challenged domain name occurred March 26, 2009, but

Epic only acquired Connexus on May 4, 2010. The timing is not dispositive in light of the

allegations in the First Amended Complaint. Although Added Defendants assert that

Plaintiff’s unsubstantiated allegations about the relationship of the Defendants to each

other to be “of no moment,” (Doc. No. 149, p. 12), courts acknowledge that due process

is not violated when a court exercises personal jurisdiction over a corporation that ordinarily

would not be subject to personal jurisdiction in that court, provided the corporation is an

alter ego or successor of a corporation that would be subject to personal jurisdiction in that

court. Estate of Thomson ex rel. Estate of Rakestraw v. Toyota Motor Corp. Worldwide,

545 F.3d 357, 362 (6th Cir. 2008).

Here, because there is no evidentiary hearing, Plaintiff meets its burden with a prima

facie showing. Consequently, the Declaration of Nowaczek, offered by Added Defendants,

which asserts that Epic operates Connexus as a subsidiary, does not undermine Plaintiff’s

allegations. Even if it did, Plaintiffs have offered some evidence that casts doubt on the

declaration, including press releases and testimony of employees. (See Doc. No. 162, Exs.

C, D.) The relationship between the parties is fact driven and exceeds the scope of

analysis required to resolve this motion. Accordingly, the Court finds all Added

Defendants purposefully availed themselves of the privilege of acting in Michigan or

causing a consequence in Michigan. 

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B. Arising out of Activities in the Forum

Next, the Court must consider whether the claims arise from forum-related activities.

Added Defendants contend that they do not conduct activity in Michigan. 

In assessing the second prong, courts do not construe the requirement that

Plaintiff’s cause of action arises from Defendant’s activities in the forum state in a restrictive

fashion. “Only when the operative facts of the controversy are not related to the

defendant’s contact with the state can it be said that the cause of action does not arise

from that [contact].” Mohasco, 401 F.2d at 384 n.29. In other words, as long as the cause

of action has “[a] substantial connection with defendant’s in-state activities,” it is not

necessary that the suit formally arise from defendant’s contacts with the forum state. See

Third Nat’l Bank in Nashville v. WEDGE Group, Inc., 882 F.2d 1087, 1091 (6th Cir. 1989)

(quoting Mohasco, 401 F2d at 384 n.27).

The Court is satisfied that the claims advanced in the First Amended Complaint are

related to conduct that targeted Michigan. 

C. Nature of the Connection

Finally, Added Defendants argue the exercise of jurisdiction over them in Michigan

would be unreasonable. According to Added Defendants, the most efficient resolution of

Plaintiff’s claims would be obtained in California, not Michigan. Added Defendants’

argument is unpersuasive.

Notably, when the first two requirements under Mohasco are met, “[a]n inference

arises that the third factor is satisfied.” Bird, 289 F3d at 875; CompuService, Inc., 89 F.3d

at 1268. Nevertheless, courts look at several factors when examining the requirement of

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reasonableness, including “the burden on the defendant, the interest of the forum state, the

plaintiff’s interest in obtaining relief, and the interests of other states in securing the most

efficient resolutions of controversies.” Am. Greetings Corp. v, Cohn, 839 F. 2d 1164, 1169-

70 (6th Cir. 1988) (quoting Asahi Metal Indus. v. Superior Court, 480 U.S. 102, 113 (1987)).

This case has proceeded in this forum for two years. Both Plaintiff and Michigan

have an interest in the matter before this Court. The fact that Added Defendants are

citizens of California and would prefer to litigate this matter in that forum does not render

this forum unreasonable. 

V. CONCLUSION

For the reasons discussed, Added Defendants’ motion is DENIED.

IT IS SO ORDERED.

s/Marianne O. Battani 

MARIANNE O. BATTANI

UNITED STATES DISTRICT JUDGE

Date: June 10, 2011

CERTIFICATE OF SERVICE

Copies of this Order were mailed and/or electronically filed to counsel of record on this

date.

s/Bernadette M. Thebolt

Case Manager

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