Great Divide Brewing Co. v. Gold Key/PHR Food Services, LLC
127 F. Supp. 3d 1137
D. Colo.2015Background
- Great Divide Brewing Co. (Colorado) sues Gold Key/PHR Food Services, LLC (Virginia) for trademark infringement and related claims based on Defendant’s use of phrases like “Great Minds Drink Alike” at its Lager Heads restaurant in Virginia Beach and on its websites.
- Great Divide owns a registered mark (“GREAT MINDS DRINK ALIKE”), headquartered in Denver, sells merchandise and beer nationwide (including retail within 5 miles of Lager Heads), and maintains a public website.
- Defendant is a Virginia LLC with a single restaurant operation in Virginia Beach, no offices, agents, sales, licenses, tax filings, bank accounts, or property in Colorado. Revenue is derived solely from Virginia operations.
- Defendant’s websites display the alleged infringing phrases, provide menu/beer information, a contact link, mailing-list signup, and a link to purchase gift cards via a third-party site; the site does not process sales directly. Jurisdictional discovery showed 61 visits from Colorado IP addresses and one Colorado gift-card order.
- Great Divide sent cease-and-desist letters; Defendant continued using the phrases. Plaintiff argues the website activity, availability of products, and post-notice infringement create specific personal jurisdiction in Colorado. Defendant argues contacts with Colorado are insufficient for jurisdiction.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Colorado courts have specific personal jurisdiction over Defendant based on internet activity and other contacts | Website displays infringing marks accessible to Colorado, online availability of products, proximity of plaintiff’s distribution, mailing-list/contact features, one Colorado gift-card order, and continuing infringement after cease-and-desist show purposeful direction at Colorado | Defendant is a Virginia-only operator with no Colorado business presence, no targeted advertising or sales into Colorado, passive website (no direct online sales), trivial Colorado web traffic, and no intentional aim at Colorado | Court held plaintiff failed to show minimum contacts for specific jurisdiction; dismissal without prejudice granted |
| Whether post-notice continued infringement (cease-and-desist) alone establishes purposeful direction to forum | Continued infringement after notice demonstrates intentional acts aimed at plaintiff in Colorado and supports jurisdiction | Post-notice conduct is not enough absent other deliberate acts aimed at Colorado (e.g., sales, targeted advertising, or other steps directed at Colorado residents) | Court held continuing infringement after notice, standing alone, did not establish jurisdiction because it was not expressly aimed at Colorado |
Key Cases Cited
- Shrader v. Biddinger, 633 F.3d 1235 (10th Cir. 2011) (website access alone does not establish personal jurisdiction; requires intentional direction at forum)
- Calder v. Jones, 465 U.S. 783 (U.S. 1984) (forum-targeting/express-aiming principle for intentional torts)
- ALS Scan, Inc. v. Digital Serv. Consultants, Inc., 293 F.3d 707 (4th Cir. 2002) (three-part test for internet-directed activity: electronic activity into forum, manifested intent to do business there, and causing forum-cognizable harm)
- Zippo Mfg. Co. v. Zippo Dot Com, 952 F. Supp. 1119 (W.D. Pa. 1997) (sliding-scale test for website interactivity in jurisdictional analysis)
- Int’l Shoe Co. v. Washington, 326 U.S. 310 (U.S. 1945) (minimum contacts due process standard)
- Dudnikov v. Chalk & Vermilion Fine Arts, Inc., 514 F.3d 1063 (10th Cir. 2008) (Colorado long-arm construed to the limits of due process; specific vs. general jurisdiction analysis)