When Icarus slipped the surly bonds of Earth for the boundless expanses of heaven, he suffered the limitation of wings made of wax. Every school child knows the story of how, enamored with the power and freedom of soaring with the gods, Icarus flew closer and closer to the sun until its heat melted the wax and he fell into the sea.' Though he had transcended the territorial boundaries of Earth, he was limited by the man-created materials with which he escaped.
Today, Icarian adventurers slipping the bonds of a world defined by territories and countries via their departure into cyberspace suffer a similar limitation: The laws under which they make their escape were propounded and fossilized when every action of man could be defined by the real estate on which he existed. Personal jurisdictional analysis, conflict of laws, and trademark infringement all suffer from this earthly constraint, and Internet users must heed the cries of Daedalus to be mindful of the jurisdictional limits that bound the boundless heavens. Whether posting a website or choosing a domain name, careful thought must be given to the market to be reached if the modern-day Icarus does not want to have his technological wings clipped by a court in a foreign jurisdiction to which he had no desire to submit.
Commercial adventurers must be acutely aware of flying "too close to the sun" because the law regarding commercial websites is particularly fractious with few courts completely agreeing on what constitutes sufficient commercial activity so as to justify the assertion of personal jurisdiction. Because a finding of personal jurisdiction so often resolves what law a court will apply, the unwary traveler faces both jurisdiction under a foreign court and judgment under that court's laws.
This Article will briefly review the evolution of jurisdictional analysis via Internet contacts and then analyze the two distinct tests that have evolved to evaluate Internet-based forum contacts with particular focus given to an area increasingly taking center stage in Internet jurisprudence- trademark infringement. Finally, this Article will look at established conflict-of-laws approaches and examine a basic flaw in those approaches given the transnational disputes now coming before courts.
Daughdrill, Brian E.
"Poking Along in the Fast Lane on the Information Super Highway: Territorial-Based Jurisprudence in a Technological World,"
Mercer Law Review: Vol. 52:
4, Article 2.
Available at: https://digitalcommons.law.mercer.edu/jour_mlr/vol52/iss4/2