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Prominent GmbH v. Prominent Systems, Inc.

United States District Court, W.D. Pennsylvania

April 10, 2017

PROMINENT GmbH, PROMINENT SYSTEMS, spol. s r.o., and PROMINENT FLUID CONTROLS, INC., Plaintiffs,
v.
PROMINENT SYSTEMS, INC., PROMINENT SUPPLIES, INC., and KY TRAN, Defendants. ECF Nos. 21, 23

          OPINION

          Lisa Pupo Lenihan, Magistrate Judge

         Currently before the Court for disposition are the Motion to Dismiss Pursuant to Federal Rules of Civil Procedure 12(b)(2) and 12(b)(3) (ECF No. 21), and the Motion to Transfer Pursuant to 28 U.S.C. §§ 1404, 1406, and 1631 (ECF No. 23), filed by Defendants Prominent Systems, Inc., Prominent Supplies, Inc., and Ky Tran (collectively "Defendants"). Plaintiffs, Prominent GmbH, Prominent Systems, spol. s r.o., and Prominent Fluid Controls (collectively "Prominent" or "Plaintiffs"), assert claims for the alleged willful and blatant infringement of their famous federally registered PROMINENT trademarks, and for trademark dilution and false designation of origin and unfair competition, under federal and state law, against Defendants. For the reasons set forth below, the Court will grant in part and deny in part Defendants' motion to dismiss for lack of personal jurisdiction. Defendants' motion to dismiss under Rule 12(b)2) will be granted as to Defendants Prominent Supplies, Inc. and Ky Tran, and will be denied as to Defendant Prominent Systems, Inc. The claims against Defendants Prominent Supplies and Ky Tran will be dismissed without prejudice. In addition, the Court will deny Defendants' motion to dismiss under Rule 12(b)(3) for improper venue as to Defendant Prominent Systems, and will deny said motion as moot with regard to Defendants Prominent Supplies and Ky Tran. Finally, the Court will deny Defendants' motion to transfer.

         I. FACTUAL BACKGROUND[1] & PROCEDURAL HISTORY

         According to the Complaint, Prominent is a global leader in all aspects of water treatment solutions, and has used its PROMINENT marks for over 50 years to brand its acclaimed and market leading products. (Compl., ¶2, ECF No. 1.) A family owned and operated company with 56 global subsidiaries, Prominent employs over 2, 100 persons worldwide, 150 of which are located in Pittsburgh, Pennsylvania, which is the location of its headquarters and principal place of business in the United States. (Id. at ¶¶ 3, 7, 13.)

         Plaintiff Prominent GmbH is a limited liability company organized and existing under the laws of the Federal Republic of Germany, with an office and principal place of business in Heidelberg, Germany. (Id. at ¶14.) At all material times, Prominent GmbH is and was engaged in the business of developing, manufacturing, distributing, marketing, maintaining, and providing high quality water treatment and water disinfection solutions, as well as dosage pumps, metering pumps and related technology including, but not limited to, dry feeders. (Id.)

         Plaintiff Prominent Systems spol. s r. o. is a limited liability company organized and existing under the laws of the Czech Republic, with an office and principal place of business in Blovice, Czech Republic. (Id. at ¶ 15.) Prominent Systems spol. s r. o. is a wholly owned subsidiary of Prominent GmbH and is engaged in the business of producing water treatment systems and components thereof. (Id.)

         Plaintiff Prominent Fluid Controls, Inc., is a Pennsylvania corporation with its headquarters in Pittsburgh, Pennsylvania. (Id. at ¶ 16.) At all material times, Prominent Fluid Controls is and was a wholly owned subsidiary of Prominent GmbH and is Prominent's exclusive distributor in the United States. (Id.) Prominent Fluid Controls is engaged in the same business activities as those stated for Prominent GmbH, and operates under the name Prominent, which is protected by federal and state trademark registrations. (Id.)

         Defendant Prominent Systems, Inc. is a California corporation with a principal place of business located in the City of Industry, California. (Id. at ¶ 17; Decl. of Ky Tran ("Tran Decl.") at ¶ 2, ECF No. 21-1.) Prominent Systems manufactures Granular Activated Carbon for use in its filter media products, which it markets for water treatment and environmental purification, and offers a wide range of services and applications involving its Carbon product. (Compl., ¶ 17 & Ex. 7 thereto, ECF No. 1-1 at 63-79.)

         Plaintiffs allege that Prominent Systems targets a variety of industries including companies in the food and beverage, pharmaceutical, and public sectors. (Compl., ¶ 17 & Ex. 7 thereto, ECF No. 1-1 at 79.) Plaintiffs further allege that the activities of Prominent Systems target Pennsylvania primarily in two ways - Prominent Systems: (1) avails itself of Pennsylvania's PennBid System, where private companies can bid on public sector solicitations from more than 450 Pennsylvania government agencies and municipalities; and (2) has and does conduct business throughout the United States via various websites, including but not limited to, www.prominentinc.com and www.prominentsupplies.com. (Compl., ¶ 17.)[2] Defendant Tran concedes that Prominent Systems uses Pennsylvania's PennBid bidding system, and that it has shipped goods to Pennsylvania. (Supp. Decl. of Ky Tran ("Supp. Tran Decl.") at ¶¶ 14-15, ECF No. 30-1 at 3.) However, according to Defendant Tran, there is no way to place an order directly from the Prominent Systems website. (Id. at ¶ 18.)

         Defendant Prominent Supplies, Inc. is a California corporation with its principal place of business located in San Gabriel, California, [3] and is primarily engaged in project management services. (Compl., ¶ 18 & Ex. 10 attached thereto, ECF No. 1-1 at 89; Supp. Tran Decl. at ¶ 7; Decl. of I. Nyoman Scorpio ("Scorpio Decl.") at ¶ 3, ECF No. 23-1.) I. Nyoman Scorpio is the president and sole shareholder of Prominent Supplies. (Supp. Tran Decl. at ¶ 6; Scorpio Decl. at ¶l.) Prominent Supplies also owns and operates the website available at www.prominentsupplies.com.[4] (Compl., ¶ 18.) Unlike Prominent Systems, Prominent Supplies does not use Pennsylvania's PennBid bidding system nor has it engaged in any bidding activity in Pennsylvania. (Supp. Tran Decl. at ¶¶ 14, 16.)

         Defendant Ky Tran resides in the State of California and serves as the President of Prominent Systems. (Compl. at ¶ 19.) In such capacity, Defendant Tran directs some, but not all, of the business and commercial activities of Defendant Prominent Systems, as he is not the sole officer of the corporation. (Id.; Supp. Tran Decl. at ¶ 12.) It appears, however, that he does not direct any of the business and commercial activities of Prominent Supplies as that business is the exclusive concern of the president and sole shareholder of Prominent Supplies, I. Nyoman Scorpio. (Supp. Tran Decl. at ¶¶ 2 & 6; Scorpio Decl. at ¶l.)

         According to Defendant Tran, Prominent Systems and Prominent Supplies do not share common officers or directors, do not own each other's stock, do not consolidate tax returns or financial records, and do not exercise any control over each other, but are independent, separately existing entities with divergent business purposes. (Supp. Tran Decl. at ¶¶ 3-5, 9-10.) Prominent Supplies does not utilize any employee of Prominent Systems; Mr. Scorpio, as a non-officer employee of Prominent Systems, provides general marketing of goods and services for Prominent Systems, largely in the Southern California area. (Supp. Tran Decl. at ¶ 3; Scorpio Decl. At ¶ 1.) Prominent Supplies does not display any signage at the City of Industry, California headquarters of Prominent Systems. (Supp. Tran Decl. At ¶ 11.)

         Defendant Tran declares that neither he nor Prominent Systems has ever: (1) attended any trade show in Pennsylvania (Supp. Tran Decl. at ¶ 19); (2) Defendant Tran further declares that (1) the heavy machinery owned and/or operated by Prominent Systems, which is the subject of this lawsuit, is primarily located in California, Washington, and Texas, and none is located in Pennsylvania (id. at ¶¶ 21-22); (2) neither he, in his individual capacity, nor Prominent Supplies has ever advertised in Water Quality Products magazine, but Prominent Systems does advertise in that publication (id. at ¶ 26); (3) he personally has no business relationships, operations, or endeavors in Pennsylvania and has not ever been within the borders of Pennsylvania (Tran. Decl. at ¶¶ 3-4); (4) he has no employees residing or domiciled in Pennsylvania, and no offices or comparable facilities, telephone listings, or mailing address in Pennsylvania (id. at ¶ 9); (5) he has no bank accounts or other tangible personal or real property in Pennsylvania (id. at ¶ 11);and (6) he has never transacted business in, or set foot within the borders of, Pennsylvania (id. at ¶14).

         With regard to Prominent Systems, Defendant Tran states that: (1) it is not incorporated in Pennsylvania (id. at ¶ 6); (2) none of its employees, officers or directors reside or are domiciled in Pennsylvania (id. at ¶¶ 7-8); (3) it has no branch office or comparable facilities, telephone listings, or mailing address in Pennsylvania (id. at ¶8); (4) it has no bank accounts or other tangible personal or real property in Pennsylvania (5) none of its employees work in Pennsylvania (id. at ¶13); and (6) none of its board of directors or shareholders meetings have been held in Pennsylvania, and none of its officers or directors has attended business conferences or similar functions within Pennsylvania (Id. at ¶ 12).

         As to Defendant Prominent Supplies, Mr. Scorpio declares that: (1) it is not incorporated or qualified to do business in Pennsylvania, and has no subsidiaries incorporated or qualified to do business in Pennsylvania (Scorpio Decl. At ¶ 4); (2) none of its employees, officers or directors reside or are domiciled in Pennsylvania (id. at ¶¶ 5-6); (3) it has not contracted with persons residing in Pennsylvania to act on its behalf with respect to marketing, distributing or servicing any of its goods or products (id. at ¶ 6); (4) it has no branch office or comparable facilities, telephone listings, or mailing address in Pennsylvania (id. at ¶ 7); (5) it has never transacted business in Pennsylvania (id. at ¶ 14); (6) it has no bank accounts or other tangible personal or real property in Pennsylvania (id. at ¶ 8); (7) it does not direct any of its advertising specifically towards Pennsylvania residents, nor does it advertise in any publications that are directed primarily towards Pennsylvania residents (id. at ¶ 9); (8) none of its board of directors or shareholders meetings have been held in Pennsylvania, and none of its officers or directors has attended business conferences or similar functions within Pennsylvania (id. at ¶ 10); (9) its acts or omissions for which Plaintiffs seek to hold it liable in this action all occurred outside Pennsylvania (id. at ¶ 11)- Mr. Scorpio, who serves as president of Prominent Supplies, declares that he personally has no business relationships, operations, or endeavors in Pennsylvania and has never stepped foot in Pennsylvania. (Scorpio Decl. at ¶¶ 12-13.)

         Defendants' California business operations, officers, counsel, witnesses, and evidence (heavy equipment) are all located within 100 miles of the Central District of California. (Tran Decl. at ¶¶ 23, 27-30, 32-33; Supp. Tran Decl. at ¶¶ 24-25; Scorpio Decl. at ¶¶ 21, 23, 27-30, 32-33.)

         After failed attempts to resolve the trademark dispute with Defendants out of court, Plaintiffs instituted this action on October 21, 2016. In response, Defendants filed a motion to dismiss pursuant to Rules 12(b)(2) and (b)(3) (ECF No. 21), as well as a motion to transfer the case to the Central District of California (ECF No. 23), and supporting briefs (ECF Nos. 22 & 24). Plaintiffs filed a timely brief in opposition to the motions (ECF No. 29), to which Defendants filed a reply brief (ECF No. 30). As the motions to dismiss and/or transfer have been fully briefed, they are now ripe for disposition.

         II. STANDARD OF REVIEW

         A. Motion to Dismiss

         1. Fed. R.Civ. P. 12(b)(2)

         In responding to a motion to dismiss under Federal Rule of Civil Procedure 12(b)(2) for lack of personal jurisdiction, the plaintiff bears the burden of proving, by a preponderance of the evidence, facts sufficient to establish personal jurisdiction over the defendants, by producing affidavits or other competent evidence. Metcalfe v. Renaissance Marine, Inc., 566 F.3d 324, 330 (3d Cir. 2009) (citing Pinker v. Roche Holdings Ltd., 292 F.3d 361, 368 (3d Cir. 2002); Dayhoff Inc. v. H.J. Heinz Co., 86 F.3d 1287, 1302 (3d Cir. 1996)); see also Time Share Vacation Club v. Atlantic Resorts, Ltd., 735 F.2d 61, 66 n.9 (3d Cir. 1984). Where, as here, an evidentiary hearing is not held on the 12(b)(2) motion, the plaintiff need only demonstrate a prima facie case of personal jurisdiction. Metcalfe, 566 F.3d at 330 (citing O'Connor v. Sandy Lane Hotel Co., 496 F.3d 312, 316 (3d Cir. 2007)); D'Jamoos v. Pilatus Aircraft Ltd., 566 F.3d 94, 102 (3d Cir. 2009) (citing Miller Yacht Sales, Inc. v. Smith, 384 F.3d 93, 97 (3d Cir. 2004)). A plaintiff "presents a prima facie case for the exercise of personal jurisdiction by 'establishing with reasonable particularity sufficient contacts between the defendant and the forum state'" Mellon Bank (East) PSFS, Natl Ass'n v. Farino, 960 F.2d 1217, 1221 (3d Cir. 1992) (quoting Provident Natl Bank v. Cal. Fed. Sav. & Loan Ass'n, 819 F.2d 434, 437 (3d Cir. 1987)) (other citation omitted).

         In deciding a Rule 12(b)(2) motion, although the court must accept the plaintiffs allegations as true and resolves all doubts in its favor, D'Jamoos, 566 F.3d at 102 (citing Miller Yacht Sales, supra), plaintiff may not rest solely on the pleadings to satisfy its burden of proof, see Pinker, 292 F.3d at 368; Carteret Sav. Bank, 954 F.2d at 146. Rather, the plaintiff must present evidence that demonstrates a prima facie case for the exercise of personal jurisdiction. See Mellon Bank (East) PSFS, Nat. Ass]n v. Farino, 960 F.2d 1217, 1223 (3d Cir. 1992). If the plaintiff succeeds, the burden then shifts to the defendant to demonstrate that an exercise of personal jurisdiction by the forum state would violate due process, i.e., the exercise of personal jurisdiction over defendant would offend traditional notions of fair play and substantial justice. Miller Yacht Sales, 384 F.3d at 97 (citing Burger King, 471 U.S. at 476).

         2. Fed. R. Civ. P. 12(b)(3)

         In this circuit, the party challenging venue has the burden of proving that venue in the selected judicial district is improper. Myers v. Am. Dental Ass'n, 695 F.2d 716, 724 (3d Cir. 1982) (citation & footnote omitted); see also Manning v. Flannery, Civ. A. No. 09-3190, 2010 WL 55295, at *4 & n. 4 (E.D.Pa. Jan. 6, 2010) (citing Myers, supra) (other citations & footnote omitted). In deciding a motion to dismiss and/or transfer for improper venue under Rule 12(b)(3), the Court must generally accept as true the allegations in the pleadings. Heft v. AAI Corp., 355 F.Supp.2d 757, 762 (M.D.Pa. 2005) (citing Pinker v. Roche Holdings Ltd., 292 F.3d 361, 368 (3d Cir. 2002); Myers, 695 F.2d at 724) (footnote omitted). In addition, "[t]he parties may submit affidavits in support of their positions, and may stipulate as to certain facts, but the plaintiff is entitled to rely on the allegations of the complaint absent evidentiary challenge." Heft, 355 F.Supp.2d at 762 (citing Carteret Sav. Bank, F.A. v. Shushan, 954 F.2d 141, 142 & n. 1 (3d Cir.1992); Myers, 695 F.2d at 724). In either event, the Court is required to view the facts in the light most favorable to the Plaintiff. Id. (citing Carteret and Myers, supra).

         B. Motion to Transfer

         The district court is vested with broad discretion in determining whether transfer of venue is appropriate. Plum Tree, Inc. v. Stockment, 488 F.2d 754, 756 (3d Cir. 1973) (citations omitted); Jumara v. State Farm Ins. Co., 55 F.3d 873, 883 (3d Cir. 1995).

         III. DISCUSSION

         A. Personal Jurisdiction

         In their reply brief, Defendants concede that this Court likely possesses specific personal jurisdiction over Prominent Systems.[5] Defs.' Reply Br. at 8 (ECF No. 30). In light of this concession, the Court need only determine whether personal jurisdiction exists over the remaining defendants - Prominent Supplies and Ky Tran.

         At the outset, the Court notes that Plaintiffs have not delineated the contacts of Prominent Supplies and Ky Tran that were purposefully directed to the forum, but rather, rely on the alleged contacts of Prominent Systems or the Defendants collectively, which they claim show purposeful availment. This infirmity is fatal to establishing the Court's specific personal jurisdiction over Prominent Supplies and Ky Tran.

         In order for personal jurisdiction to exist over Defendants in the Western District of Pennsylvania, each Defendant 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'"[6] Int'l Shoe Co. v. Washington, 326 U.S. 310, 316 (1945) (quoting Milliken v. Meyer, 311 U.S. 457, 463 (1940)) (other citations omitted). The minimum contacts requirement serves the purpose of "protecting] the defendant against the burdens of litigating in a distant and inconvenient forum" by requiring that the "defendant's conduct and connection with the forum State [be] such that [a defendant] should reasonably anticipate being haled into court there." World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 291-92, 297 (1980) (citations omitted). This framework enables "potential defendants to structure their primary conduct with some minimum assurance as to where that conduct will and will not render them liable to suit." Id. at 297. Thus, a plaintiff cannot unilaterally create the necessary contacts between the defendant and the forum; rather, "minimum contacts" can arise only by "'some act by which the defendant purposely avails itself of the privilege of conducting activities within the forum state, thus invoking the benefits and protections of its laws'" Burger King Corp. v. Rudzewicz, 471 U.S. 462, 475 (1985) (quoting Hanson v. Denckla, 357 U.S. 235, 253 (1958)).

         Personal jurisdiction can exist in one of two forms: specific jurisdiction or general jurisdiction. Specific jurisdiction applies where the cause of action is related to or arises from the defendant's contacts with the forum, Toys "R" Us, Inc. v. Step Two, S.A., 318 F.3d 446, 451 (3d Cir. 2003) (quoting Pinker, 292 F.3d at 368), while general jurisdiction applies where the defendant's contacts with the forum are "continuous and systematic" but are not related to the plaintiffs cause of action, Pennzoil Prods, v. Colelli & Assocs., Inc., 149 F.3d 197, 200 (3d Cir. 1998) (citation omitted). In the instant matter, Plaintiffs submit that personal jurisdiction exists over Defendants based solely upon specific jurisdiction.

         Specific personal jurisdiction requires the Court to conduct a three-part test. D'Jamoos v. Pilatus Aircraft Ltd., 566 F.3d 94, 102 (3d Cir. 2009). Initially, the court must determine whether the defendant has "'purposefully directed'" its activities toward the forum state. Id. (quoting Burger King Corp., 471 U.S. 462 (quoting Keeton v. Hustler Magazine, Inc., 465 U.S. 770, 775 (1984) (whether "minimum contacts" exist requires the court to examine "the relationship among the defendant, the forum, and the litigation."))). "Second, the litigation must 'arise out of or relate to' at least one of those activities." Id. (quoting Helicopteros Nacionales de Columbia, S.A., 466 U.S. 408, 414 (1984); O'Connor v. Sandy Lane Hotel Co., Ltd., 496 F.3d 312, 317 (3d Cir. 2007)). Finally, if the plaintiff has established the first two elements, only then does the court proceed to the third part of the inquiry-whether the defendant's contacts with the forum state are such that maintenance of the action "'does not offend traditional notions of fair play and substantial justice.'"[7] World-Wide Volkswagon, 444 U.S. at 292 (citing Int'l Shoe, 326 U.S. at 316); D'Jamoos, 566 F.3d at 102. In this regard, the court of appeals observed:

The first two parts of the test determine whether a defendant has the requisite minimum contacts with the forum. The threshold requirement is that the defendant must have "purposefully avail[ed] itself of the privilege of conducting activities within the forum State." Hanson v. Denckla, 357 U.S. [at 253]. To meet this requirement, the defendant's physical entrance into the forum is not necessary. See Burger King, 471 U.S. at 476, 105 S.Ct. at 2184; Grand Entm't Group, Ltd. v. Star Media Sales, Inc., 988 F.2d 476, 482 (3d Cir.1993). A defendant's contacts, however, must amount to "a deliberate targeting of the forum." O'Connor, 496 F.3d at 317. The "unilateral activity of those who claim some relationship with a nonresident defendant" is insufficient. Hanson, 357 U.S. at 253.

D'Jamoos, 566 F.3d at 102-03. The inquiry under D'Jamoos must be applied to each claim and to each defendant independently. Marten v. Godwin, 499 F.3d 290, 296 (3d Cir. 2007) (citing Remick v. Manfredy, 238 F.3d 248, 255-56 (3d Cir. 2001)). Plaintiffs bear the burden of proof on the first two elements, and only if Plaintiffs meet this burden does the burden shift to Defendants to prove the third element. Burger King, 471 U.S. at 476- The court of appeals has applied the D'Jamoos test to defendants who are not being sued for intentional torts. See O'Connor, 496 F.3d at 317 & n. 2. Where the plaintiff has brought suit against a defendant based on an intentional tort, the court of appeals has applied the Calder effects test. Id. at 317 n. 2. Here, Plaintiffs argue that specific jurisdiction exists against Prominent Supplies and Ky Tran under both tests.[8]

         As explained below, Plaintiffs have failed to establish that personal jurisdiction exists over Prominent Supplies and Ky Tran in this District under any applicable standard.

         1. D'Jamoos Test

         Under the first prong of the D'Jamoos test, Plaintiffs must show that Prominent Supplies and Ky Tran purposefully directed their activities at the forum. Thus, the Court will examine the alleged contacts of each Defendant as supported by Plaintiffs' and Defendants' affidavits and exhibits.

         (a) Prominent Supplies

         The contacts of Prominent Supplies identified by Plaintiffs, which are alleged to be purposefully directed to Pennsylvania, consist merely of (1) Prominent Supplies' allegedly interactive website, www.prominentsupplies.inc., (2) the alleged use of the PROMINENT trademark on Prominent Supplies' website, and (3) the use of a metatag for the word "Prominent". However, none of the exhibits provided by the parties shows that any of these "contacts" is purposefully directed towards Pennsylvania.

         Plaintiffs submit that Prominent Supplies' website, while not interactive, is sufficiently commercial to show contacts with Pennsylvania, such that it falls in the middle of the sliding scale set forth in Zippo Mfg. Co. v. Zippo Dot Com, Inc., 952 F.Supp. 1119 (W.D.Pa.1997).[9] Plaintiffs' argument falls short of the mark.

         In Metcalfe v. Renaissance Marine, Inc., the court of appeals relied on its holding in Toys "R" Us, Inc. v. Step Two, S.A., 318 F.3d 446, 454 (3d Cir. 2003), in which it had articulated the controlling principle in determining whether websites are sufficiently interactive/commercial to show contacts directed to the forum:

As Zippo [Mfg. Co. v. Zippo Dot Com, Inc., 952 F.Supp. 1119 (W.D.Pa.1997)] and the Courts of Appeals decisions indicate, the mere operation of a commercially interactive web site should not subject the operator to jurisdiction anywhere in the world. Rather, there must be evidence that the defendant "purposefully availed" itself of conducting activity in the forum state, by directly targeting its web site to the state, knowingly interacting with residents of the forum state via its web site, or through sufficient other related contacts.

566 F.3d 324, 340 (3d Cir. 2009). When the Court examines Prominent Supplies' website and the exhibits depicting the website, it is clear that it lacks the necessary level of interactivity and commercial activity to establish sufficient minimum contacts for personal jurisdiction purposes.

         In the Court's view, Prominent Supplies' website is passive rather than interactive, as it does little more than make contact information available to those who are interested in purchasing or finding out more about its cleaning products. The one-page website states that its cleaning products are available for public purchase either at its store in California, or by calling a telephone number in California. (Pis' Ex. 10 to Compl., ECF No. 1-1 at 90.)[10] The website also provides the following email address: info@Prominentsupplies.com. No other information is provided on Prominent Supplies' website, not even a description of the cleaning products available for purchase. Thus, it is clear that visitors to the website cannot place orders over the internet, but instead, must visit or call the store in California. Since the website is passive, Plaintiffs have not shown nor can they show that the website generated any sales or shipments of Prominent Supplies' cleaning products, let alone sales or shipments to customers in Pennsylvania.

         Plaintiffs attempt to get around this infirmity by arguing that Defendants employ metatags and search engine optimization techniques to specifically target Pennsylvania consumers searching for PROMINENT on Google or other search engines to lure them to Defendants' websites (citing Liedtke Decl., ¶¶ 20-26, Ex. B to Pls' Br. in Opp'n (citing Ex. B-3 attached thereto)). However, Liedtke's declaration and supporting documentation do not show that the use of metatags and search engine optimization techniques specifically targeted Pennsylvania consumers. Rather, Liedtke states that metatags are designed to induce internet search engines to display a website more prominently than others. This statement only supports the conclusion that any consumers (nationally or globally) who enter a search inquiry containing the word "PROMINENT" will ...


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