In Herbal Brands, Inc. v. Photoplaza, Inc., the US Court of Appeals for the Ninth Circuit held that the sale of allegedly infringing goods into Arizona, regardless of quantity, satisfied the express aiming requirement of the effects test used to assess purposeful direction and the propriety of specific personal jurisdiction over out-of-state defendants in the US District Court of Arizona ( (9th Cir. July 5, 2023)).

Herbal Brands, Inc., whose principal place of business is in Arizona, manufactures and sells fitness and nutrition products directly to consumers or through third parties that enter into Authorized Seller agreements. Photoplaza, Inc., Goldshop 300, Inc., and the remaining defendants are New York-based companies and individuals (collectively, the New York Defendants) that were allegedly selling Herbal's products without authorization through two Amazon storefronts.

Herbal sent three cease-and-desist letters to the New York Defendants, but they continued to operate their online stores. On April 5, 2021, Herbal filed a complaint alleging trademark infringement, false advertising, and tortious interference with contract based on the New York Defendants' sale of more than 23,000 Herbal products. Although Herbal alleged that some of these sales were to Arizona residents, which the New York Defendants did not contest, Herbal could not quantify those sales.

In response to the complaint, the New York Defendants filed a motion to dismiss for lack of personal jurisdiction. The district court granted the motion, holding that Herbal failed to meet its burden of demonstrating that the New York Defendants expressly aimed their conduct at Arizona. The court also denied Herbal’s request for jurisdictional discovery, predicting that discovery would reveal only a few sales to Arizona consumers.

On appeal, Herbal argued that the district court had specific personal jurisdiction over the New York Defendants because they:

The Ninth Circuit applied the three-part test established in Schwarzenegger v. Fred Martin Motor Co. for assessing the propriety of specific personal jurisdiction over a non-resident defendant. For a court to have jurisdiction:

(374 F.3d 797, 800 (9th Cir. 2004).)

Assessing the first element to determine whether a defendant purposefully directed its activities toward the state, the Ninth Circuit applied the effects test derived from Calder v. Jones (465 U.S. 783 (1984). To satisfy the effects test, the plaintiff must show that the defendant:

(Schwarzenegger, 374 F.3d at 803.)

Recognizing that the first and third of these elements were satisfied, the court assessed whether the New York Defendants' conduct was expressly aimed at the forum. Mere operation of an interactive website accessible in the state is insufficient to satisfy this requirement, so courts require something more (additional conduct aimed at the forum state).

Addressing the question for the first time, the Ninth Circuit held that a defendant's sale of a physical product into a state, regardless of quantity, is alone sufficient to satisfy the "something more" requirement to establish express aiming if:

Because the New York Defendants sold their products through their regular storefronts on Amazon and controlled the distribution of those products by accepting and delivering orders to all fifty states, the court held that the New York Defendants' sale of Herbal's products into Arizona (in any quantity) satisfied the express aiming requirement.