Florida Record

Wednesday, December 11, 2019

Court dismisses Performance Industries' infringement case against Australian-based motorcycle parts vendor


By Takesha Thomas | Jan 17, 2019

Trademark 05

TAMPA – The U.S. District Court for the Middle District of Florida recently granted an an Australian-based motorcycle parts vendor a motion to dismiss a copyright infringement case filed by Florida-based motorcycle parts vendor Performance Industries Manufacturing Inc.

In a ruling filed Jan. 2, U.S. District Judge William F. Jung granted Australian-based Vortex Performance PTY Ltd.'s motion to dismiss the suit for lack of personal jurisdiction. "Apart from the fact that plaintiff is a Florida resident, this is not a case in which the state has a particularly strong judicial interest," the ruling said.

According to court filings, Vortex Performance is "a privately owned company organized under the laws of Australia" with its principal and only place of business located in Victoria, Australia. In court filings, Vortex Performance contended it is not incorporated or registered to do business in the state of Florida. 

Performance Industries filed suit against Vortex Performance claiming claiming the Australian company "purposefully directs business activities to and conducts business activities in this judicial district" by "promoting and selling products" with the Vortex designation to Florida residents, including through the company's website. 

The suit also alleged Vortex Performance "controls a distributor network to ship and disseminate products bearing the Vortex mark in Florida and throughout the United States." 

Performance Industries also claimed that Vortex Performance "intentionally uses the Vortex trademark with knowledge of Performance's trademark rights in the Vortex mark" which constitutes "intentional tortious wrongdoing." 

Vortex Performance argued that they do not ship products to Florida or the United States. Adding that it is not "responsible for shipment, use and loss of Vortex products once purchaser has taken possession of Freight On Board in Australia." Nor does the company "exercise control over distributors or the manner in which Vortex products are marketed, resold or installed in the United States."

The court agreed, finding that Performance Industries failed to present enough credible evidence to prove that the Australian company was indeed falsely selling products in the United States. 

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