CLASSIC DETECTIVE GAME

For 3 to 6 players / Ages 8 to adult
Rules 1986 Hasbro, Inc. Printed in U.S.A.

Object

Mr. Boddy apparently the victim of foul play is found in one of the rooms of his mansion. To win, you must determine the answers to these three questions: Who done it? Where? and with What Weapon?

Equipment

Clue Game Board: This shows nine rooms in Mr. Boddy mansion s 6 colored tokens, each representing one of the Suspects: Colonel Mustard yellow; Miss Scarlet red; Professor Plum purple; Mr. Green green; Mrs. White white; and Mrs. Peacock blue 6 miniature weapons: Rope, Lead Pipe, Knife, Wrench, Candlestick, Revolver Pack of cards: One card for each of the six Suspects, six Weapons and nine Rooms Pad of detective notebooks to aid in your investigation Confidential Case File envelope 1 die
1. Look on the board for the START space and Suspect name nearest you. Take that Suspect token as your playing piece and put it on that space. If fewer than six are playing, be sure to place the remaining token(s) onto the appropriate name(s) they might, after all, be involved in the crime, and they must be on the premises! 2. Place each of the weapons in a different room. Select any six of the nine rooms.
3. Place the empty envelope marked Case File CONFIDENTIAL onto the X in the center of the board. 4. Sort the pack of cards into three groups: Suspects, Rooms and Weapons. Shuffle each group separately and place each face down on the table. Then so no one can see them take the top card from each group and place it into the envelope. The Case File now contains the answers to the questions: Who? Where? What Weapon? 5. Shuffle together the three piles of remaining cards. Then deal them face down clockwise around the table. (It doesn matter if some players receive more cards than t others.) Secretly look at your own cards: Because they in your hand, they can be in re t the Case File which means none of your cards was involved in the crime! 6. Take a detective notebook sheet and, so no one can see what you write, fold it in half: s Check off the cards that are in your hand, if you wish. 7. Miss Scarlet the player with the red token always plays first. Play then proceeds, in turn, to the first player left. s

GAME PLAY

Moving Your Token
On each turn, try to reach a different room of the mansion. To start your turn, move your token either by rolling the die or, if you in a corner room, using a Secret Passage: re

Rolling

Roll the die and move your token the number of squares you rolled. You may move horizontally or vertically, forward or backward, but not diagonally. You may change directions as many times as your roll will allow. You may not, however, enter the same square twice on the same turn. You may not enter or land on a square that already occupied by another suspect. s

Secret Passages

The rooms in opposite corners of the mansion are connected by Secret Passages. If you in one of these rooms at the start of your turn, you may, if you wish, use a Secret re Passage instead of rolling. To move through a Secret Passage, announce that you wish to do so, then move your token to the room in the opposite corner.
Entering and Leaving a Room
You may enter or leave a room either by rolling the die and moving through a door, or by moving through a Secret Passage. A door is the opening in the wall, not the space in front of the doorway. When you pass through a door, do not count the doorway itself as a space. You may not pass through a door that blocked by an opponent token. s s As soon as you enter a room, stop moving. It doesn matter if you roll t a number that higher than you need to enter. s You may not re-enter the same room on a single turn.
It is possible that your opponents might block any and all doors and trap you in a room. If this happens, you must wait for someone to move and un-block a door so you can leave!

Making a Suggestion

As soon as you enter a room, make a Suggestion. By making Suggestions throughout the game, you try to determine by process of elimination which three cards are in the confidential Case File envelope. To make a Suggestion, move a Suspect and a Weapon into the room that you just entered. Then suggest that the crime was committed in that Room, by that Suspect, with that Weapon. Example: Let say that you Miss Scarlet and you enter the Lounge. First move another s re Suspect Mr. Green, for instance into the Lounge. Then move a weapon the Wrench, perhaps into the Lounge. Then say, I suggest the crime was committed in the Lounge by Mr. Green with the Wrench. Remember two things: You must be in the Room that you mention in your Suggestion. Be sure to consider all tokens including spare Suspects and including yourself! as falling under equal suspicion.

Proving a Suggestion True or False
As soon as you make a Suggestion, your opponents, in turn, try to prove it false. The first to try is the player to your immediate left. This player looks at his or her cards to see if one of the three cards you just named is there. If the player does have one of the cards named, he or she must show it to you and no one else. If the player has more than one of the cards named, he or she selects just one to show you. If that opponent has none of the cards that you named, then the chance to prove your Suggestion false passes, in turn, to the next player on the left. As soon as one opponent shows you one of the cards that you named, it is proof that this card cannot be in the envelope. End your turn by checking off this card in your notebook. (Some players find it helpful to mark the initials of the player who showed the card.) If no one is able to prove your Suggestion false, you may either end your turn or make an Accusation now.

Making an Accusation

When you think you figured out which three cards are in the envelope, you may, ve on your turn, make an Accusation and name any three elements you want. First say, I accuse (Suspect) of committing the crime in the (Room) with the (Weapon). Then, so no one else can see, look at the cards in the envelope. In a Suggestion, the Room you name must be the Room where your token is located. But in an Accusation, you may name any room. Remember: You may make only one Accusation during a game.
If Your Accusation Is Incorrect
If any one of the cards that you named is not inside the Case File: Secretly return all three cards to the envelope. You may make no further moves in the game, and therefore cannot win, but you do remain involved in the investigation.
You do continue to try to prove your opponents Suggestions false. Your opponents may continue to move your token into the various Rooms where they make Suggestions. If after making a false Accusation your token is blocking a door, move it into that room so that other players may enter.

Winning

You win the game if your Accusation is completely correct that is, if you find in the envelope all three of the cards that you named. When this happens, take out all three cards and lay them out for everyone to see.
Special Notes About Suggestions
1. When you make a suggestion, you may, if you wish, name one or more of the cards that you hold in your own hand. You might want to do this to gain information or to mislead your opponents. 2. You may, if you wish, make a Suggestion and an Accusation on the same turn. 3. You may make only one Suggestion after entering a particular room. To make your next Suggestion, you must either enter a different room or, sometime after your next turn, re-enter the room that you most recently left. You may not forfeit a turn to remain in a particular room. But if you trapped in a room because your opponents re are blocking the door(s), you must remain there until a door is unblocked and you can move out of the Room. 4. You may make a Suggestion that includes a Suspect or Weapon that already in your s Room. In this case, transferring one or both of those items is not necessary. When a transfer is necessary, leave the item(s) in the new location after the Suggestion is made. 5. If yours was the Suspect transferred, you may, on your next turn, do one of two things: Move from the Room in one of the usual ways OR Make a Suggestion for that room. If you decide to make a Suggestion, do not roll the die or move your token. 6. There is no limit to the number of Suspects or Weapons that may be in one Room at one time.
TO ORDER ADDITIONAL DETECTIVE NOTEPADS
You may order extra notepads directly from Parker Brothers at the address below. Please enclose a check for $1.50 each (includes postage and handling), and allow 6-8 weeks.
We will be happy to answer questions about this game. Write to: Consumer Relations, Parker Brothers, P.O. Box 1012, Beverly, MA 01915.

HASBRO, INC. v. CLUE COMPUTING, INC.
United States District Court for the District of Massachusetts, 1997. 994 F. Supp. 34
MEMORANDUM AND ORDER WOODLOCK , District Judge. Plaintiff Hasbro brings this suit against Clue Computing, a Colorado company, for trademark infringement upon the CLUE trademark. Hasbro, the owner of the CLUE mark for the game CLUE, alleges that Clue Computing has infringed upon its trademark rights through use of a World Wide Web site at the address of clue.com. Defendants have moved to dismiss the case pursuant to Federal Rule of Civil Procedure 12(b)(2) for lack of personal jurisdiction or, in the alternative, to transfer venue pursuant to 28 U.S.C. 1404(a). Plaintiff Hasbro has shown sufficient contacts by the defendant with Massachusetts to enable this court to exercise jurisdiction over the defendant. In addition, I find plaintiffs choice of forum is appropriate. Accordingly, I will deny the defendants motion. I. BACKGROUND * * * B. Defendant Clue Computing, Inc. Clue Computing is a Colorado corporation located in Longmont, Colorado. It is in the business of computer consulting. Created in 1994 as a partnership, Clue Computing is now under the ownership of Eric Robison. 1 Robison is the sole full-time employee of Clue Computing and Clue Computing has no offices outside of Longmont, Colorado. Clue Computing has served less than a dozen clients during its existence. In 1994, Clue Computings revenues totaled approximately $40,000. In that year, Clue Computing served approximately four clients, all located in Colorado. In 1995, Clue Computings revenues increased to between $80,000 and $100,000, and in 1996 Clues revenues totaled approximately $40,000. In those years, Clue Computing worked for Grumman Systems Support Corporation; Matsushita; EG & G; University of Texas; and Professional Training Services (PTS). The work for those companies brought Robison to Canada, Texas, New York, California, Arizona, Maryland, Georgia, and Antarctica. Clue Computings work for PTS originated when PTS contacted Comtrix, a Colorado company, to find trainers and was referred to Clue Computing. PTS needed trainers to fulfill a contract for Digital Equipment Corporation, a Massachusetts company. For PTS, Clue Computing traveled to many locations and trained employees of Digital Canada and DEC America, as well as other companies, not related to Digital. Robison was aware that Digital was a Massachusetts-based company and traveled under the Digital travel accounts. PTS paid Robison after receiving payment from Digital. Robison has never been to Massachusetts. Other than PTS, none of his clients have been associated with Massachusetts. Clue Computings phone records show that during the companys existence, its employees have made eight calls to Massachusetts. In addition, Clue Computing purchased software from FTP software, a Massachusetts company. Defendant Clue Computing owns the clue.com Web site.2 The company uses the Web site to advertise its business, including Internet consulting, training, system administration and network design and implementation. On its Web site, Clue states, Clue will go to any
1 Robison and his friend and co-founder of Clue Computing Dieter Muller chose the name Clue Computing for reasons unrelated to the game of CLUE. According to Muller and Robison, the name came about as a joke when they were both employed at another company. When individuals would call themselves clueless in conversation, Muller and Robison would hand them a card with the word clue on it. 2 Clue Computing also owns the domain name clue-computing.com which it acquired when concerned that NSI would shut down the site of clue.com.

customers site! Clues own Eric Robison traveled to Antarctica for the 1995-1996 field season. The Web site offers the address, phone number, and email address for the company. In addition, those Internet users who view the site can instantly email the company by clicking on the page. On another page of its Web site, Clue computing also states, Location: Clue is a completely virtual company; the employees telecommute or work at client sites. It can be said, that the center of gravity of Clue Compu ting lies somewhere in Longmont, Colorado, USA. Clue provides services for clients anywhere on the planet. Furthermore, the site advertises, Clients: Clue Computing provides services for many organizations, including: Digital Equipment Corporation * * *. Additionally, several individuals use the clue.com site for personal email and Web sites. C. Plaintiff Hasbro, Inc. Hasbro, Inc. designs, manufactures and markets childrens toys and related items. In 1944, Hasbro invented the CLUE board game, a murder mystery game where participants attempt to discover which character committed a murder in which room with which weapon. The name CLUE has been registered as a trademark of Hasbro since 1950. Currently, Hasbro is developing CD-ROM versions of their traditional games. These games are available on the World Wide Web, e.g. MONOPOLY game at monopoly.com, SCRABBLE game at scrabble.com, and others. The CD-ROM version of the CLUE has been developed as well. However, in 1996 Hasbro discovered that Clue Computing owned the domain name clue.com. Hasbro is a Rhode Island corporation, with its largest facility in Beverly, Massachusetts. Parker Brothers, the developer and marketer of CLUE game, and Hasbro Interactive, the developer and marketer of the electronic version of CLUE game, are located in Massachusetts. The majority of Hasbros American employees, over 2500 of its 6500, are in Massachusetts. In addition, Hasbro has more facilities in Massachusetts, over 2 million square feet, than in any other state. Hasbro initiated suit in Massachusetts because of the location of Parker Brothers and Hasbro Interactive, but also because most, if not all, of its witnesses are located in Massachusetts. Witnesses will include, among others, marketing and advertising employees from Parker Brothers who will testify regarding expenses incurred in promoting and protecting the mark, Hasbro Interactive employees who will testify about the CD revision of the game and the Internet, and Hasbro accounting people, who will testify to effects of dilution of the mark.

D. Procedural History Under the rules of NSI, the organization which registers domain names, any evidence of violation of a registered trademark requires NSI to put the domain name on hold status, not to be available for use by any party, pending resolution of the dispute. Therefore, in 1996, NSI, after being notified by Hasbro of a potential trademark violation, contacted Clue Computing to inform Robison that his Internet site would be frozen. Clue Computing then filed suit in state court in Colorado and received an injunction on June 28, 1996, forbidding NSI from altering Clue Computings use of clue.com. That injunction is still in effect, pending resolution of this case.3 II. Applicable Case Law A. Personal Jurisdiction: Burden and Evidentiary Showing Defendant moves pursuant to Federal Rule of Civil Procedure 12(b)(2) for dismissal of this action for lack of personal jurisdiction. The plaintiff, Hasbro, bears the burden of establishing that Clue Computings conduct satisfies the requirements of the Massachusetts long-arm statute and that the exercise of jurisdiction pursuant to the statute satisfies the strictures of the Constitution. Although the plaintiff has the burden of showing that jurisdiction exists, the district court must determine what evidentiary showing the plaintiff must make for the case to survive the defendants motion to dismiss. To guide this inquiry, the First Circuit formulated three standards that might be employed when evaluating the motion. The most conventional of these methods, the prima facie approachwhich I employ herepermits the district court to consider only whether the plaintiff has proffered evidence that, if credited, is enough to support findings of all facts essential to personal jurisdiction. However, in making the proffer, the plaintiff cannot rest upon the pleadings, but rather is obliged to adduce evidence of specific facts, which the court accepts as true for the purpose of determining the adequacy of the * * * showing. This approach is appropriate when the facts which would support jurisdiction are not in dispute. In the present case, then, Hasbro bears the burden of establishing a prima facie case supporting jurisdiction. Personal jurisdiction implicates the power of the court over the defendant. This power is informed by a two-fold determination by the court: first, whether the assertion of jurisdiction over the defendant is authorized by the forum states long-arm statute, and second, whether the exercise of jurisdiction pursuant to the statute comports with the due process requirements of the United States Constitution. B. Personal Jurisdiction: Case Law and the World Wide Web Although traditional approaches dictated by the Supreme Court and First Circuit must be applied in evaluating personal jurisdiction, these concepts should be sensitive to the unique nature of cyberspace, a non-traditional medium through which the contacts between the defendant and the forum state can occur. Since information posted on a Web site b ecomes available world-wide almost instantaneously, imposing traditional concepts on commercial Internet users might have dramatic implications, subjecting them to nationwide or even international jurisdiction. The popularity of the World Wide Web is providing courts the opportunity to examine their traditional reaches based on a corporations computer-based contacts. To date, the case law in this area is limited. Indeed, [w]ith this global revolution looming on the horizon, the development of the law concerning the permissible scope of personal jurisdiction based on Internet use is in its infant stages. A review of the cases involving the World Wide Web and

3 NSI also brought an interpleader action against both Clue Computing and Hasbro in the federal court of the District of Colorado. That court dismissed the lawsuit, at both defendants request, for lack of subject matter jurisdiction. Clue Computing is now also using the Web site to post information concerning the instant lawsuit and the NSI lawsuit in Colorado state court. Clue Computing has made the legal papers available under the heading Hasbro and NSI involve Clue in massive legal dispute.
personal jurisdiction reveals that the courts that have addressed this issue are reaching conflicting results. I will address the current body of Web site personal jurisdiction case law before discussing traditional personal jurisdiction jurisprudence. 1. Web Site Personal Jurisdiction Case Law In cases where the courts have conferred jurisdiction, they seem to rely upon facts other than the Web site in making their determination. However, it also appears from the case law that courts are in dispute as to what type of additional activity, other than the Web site, is necessary to avail a defendant of a forums laws. Some courts have relied upon contracts between the two parties. * * * Two other courts relied upon the existence of contracts between the defendants and residents of the forum state for the assertion of jurisdiction. * * * * * * A few courts have held that the existence of a World Wide Web site alone is enough to allow for exercise of personal jurisdiction. * * * Yet, other cases have not accepted the proposition that the existence of a World Wide Web site automatically confers jurisdiction upon a state. In Bensusan Restaurant Corp. v. King, 937 F. Supp. 295 (S.D.N.Y.1996), a New York plaintiff brought a trademark infringement case against a Missouri jazz club. The defendants Web site, advertising the night club, was found to be insufficient contact with the forum state to allow jurisdiction. The defendant, although using the Internet for advertising, only intended to reach a local audience. The record contained no evidence of any business from New York. In reaching its conclusion, the court evaluated the Web site in relation to traditional due process factors. Indeed, the court likened the case to Asahi Metal Indus. Co. v. Superior Ct.: Creating a site, like placing a product into the stream of commerce, may be felt nationwideor even worldwidebut, without more, it is not an act purposefully directed toward the forum state. * * * 2. Traditional Analyses and the World Wide Web As the review of the Web site case law suggests, courts currently use traditional jurisdictional analysis models to analyze Web jurisdictional issues. Perhaps the traditional framework most analogous to posting information on the World Wide Web is placing a product into the stream of commerce. In Asahi Metal, Justice OConnor adopted a narrow interpretation of the stream of commerce concept, writing for a plurality that placement of a product into the stream of commerce, without more, is not enough to satisfy the purposeful availment requirement for minimum contacts. Instead, Justice OConnor focused on deliberate availment, requiring additional conduct of the defendant which indicate[s] an intent or purpose to serve the market in the forum State. Advertising in the forum state might be one such indication. Although the Internets stream of commerce is much more ubiquitous and instantaneous than the product liability type stream of commerce, courts can use the Asahi inquiry to determine whether Web site publishing occurring outside of the forum state is intentionally directed toward that state. As discussed more fully above, current Internet jurisdictional case law has generally followed the Asahi reasoning, relying upon facts other than the Web site in exercising jurisdiction. Another case with apparent application in the Web jurisdictional context is Keeton v. Hustler Magazine, Inc. In Keeton, the Court held that the defendants regular circulation of magazines in the forum state constituted sufficient contacts for an assertion of jurisdiction for an action of libel arising from the contents of a magazine. The Court found that defendants behavior, which [could not] by any stretch of the imagination be characterized as random, isolated, or fortuitous, satisfied the requirements of due process. However, application of the principles of Keeton to Internet cases requires refinement. For while magazine publishers can affirmatively decide not to sell or distribute magazines in certain forums, this

option of bypassing particular regions is not yet available to Web site providers. C. Personal Jurisdiction in the Traditional Trademark Context Non-Web site trademark infringement cases are in disagreement as to whether the mere sending of advertising with an infringing mark into a state is sufficient contact to establish personal jurisdiction in that state. In these cases, the finding of jurisdiction d epends upon highly fact-specific determinations by the court. In evaluating relatedness, courts seem prepared to acknowledge that mere advertising satisfies the causation prong of personal jurisdiction analysis. However, in determining whether the defendant has purposefully availed itself of the benefits of the forum state, courts seem reluctant to base jurisdiction in trademark cases on advertising alone. Unlike the relatedness test, the purposeful availment test focuses on the deliberateness of the contacts. * * * * * * III. Massachusetts Long-Arm Statute The Massachusetts long-arm statute provides several bases for a Massachusetts court, or a federal court in Massachusetts, to assert jurisdiction over a nonresident defendant. The statute reads, in relevant part: A court may exercise personal jurisdiction over a person, who acts directly or by an agent, as to a cause of action in law or equity arising from the persons * * * (d) causing tortious injury in this commonwealth by an act or omission outside the commonwealth if he regularly does or solicits business, or engages in any other persistent course of conduct, or derives substantial revenue from goods used or consumed or services rendered, in this commonwealth. [Emphasis added]. Section 3(d) requires that the defendant committed a tort in Massachusetts based on acts committed elsewhere, coupled with either regular solicitation of business, continuing contacts, or the derivation of substantial revenue from the commonwealth. The present case involves allegations by Hasbro that a tortious damagetrademark dilutionwas suffered in Massachusetts. The tort of infringement involves the use of a registered mark that is likely to cause confusion. In proving the tort, it is not necessary to show actual confusion, but rather, a likelihood of confusion. It is this likelihood of confusion which creates a two fold injury: to the trademark owner through loss of good will and to the public due to confusion by similar marks. In this case, the alleged trademark infringement can be said to harm Parker Brothers and Hasbro Interactive, makers of the Clue board game and the Clue interactive game. Both divisions of Hasbro are based in Beverly, Massachusetts. Residents of Massachusetts are also injured because, it is suggested, Clue Computings domain name may invoke thoughts of the Clue board and CD ROM games. Satisfied that the alleged tort has been adequately alleged to have been committed in Massachusetts, my 3(d) inquiry must shift to whether Clue Computings activities in Massachusetts amount to regularly solicit[ing] business, as contemplated by the statute. Although Clue Computings Web site is published from its office in Colorado, it is available nation-wide and has undoubtedly been accessed by Massachusetts residents. In fact, Clue Computing produced a Web site precisely because it wanted to reach a larger customer base. Indeed, as Eric Robison stated, the Web sites entire purpose is advertising. Further, the Web site explicitly states that Clue Computing will provide services to any customer site. Accessible 24 hours a day and seven days a week to all Massachusetts residents, the Web site, in essence, serves as a national magazine, in which Clue Computer continuously advertises. As part of its advertising, Clue lists Digital, a Massachusetts company, as one of its clients, presumably hoping to attract new customers with Digitals name recognition. By maintaining a Web site which can be continuously a ccessed by Massachusetts residents, combined with the actions discussed above, Clue Computing does regularly solicit business in

Massachusetts through its Web site, and therefore satisfies the jurisdictional requirements of 3(d). I find that Hasbro has met its burden of establishing at this stage in the litigation that Clue Computings conduct meets the requirements of the state long-arm statute. IV. Constitutional Due Process In order to establish personal jurisdiction over a non-resident defendant in a way consistent with Constitutional due process, the defendant must either have continuous and systematic activity, unrelated to the suit, in the forum state, or certain minimum contacts with the forum state so that the exercise of jurisdiction does not offend traditional notions of fair play and substantial justice. The former confers general jurisdiction; the latter, specific. The minimum contacts focus involves weighing the legal sufficiency of a specific set of interactions, and compels the court to examine three distinct componentsrelatedness, purposeful availment, and reasonableness. To structure this examination, the First Circuit developed a three-part test: First, the claim underlying the litigation must directly arise out of, or relate to, the defendants forum-state activities. Second, the defendants instate contacts must represent a purposeful availment of the privilege of conducting activities in the forum state, thereby invoking the benefits and protections of that states laws and making the defendants involuntary presence before the states courts foreseeable. Third, the exercise of jurisdiction must, in light of the Gestalt factors, be reasonable. 1. Relatedness The trademark infringement claims raised by the plaintiff in this action relate d irectly from the defendants contact with the state. Hasbros cause of action arises from an alleged trademark infringement concerning a Web site that is continuously available to Massachusetts residents and causing tortious injury in Massachusetts to Parker Brothers and Hasbro Interactive. Clue Computing constantly advertises in Massachusetts at an Internet address of clue.com. A review of trademark infringement case law, see supra, establishes that advertising in the forum state satisfies the initial inquiry of relatedness. 2. Purposeful Availment The purposeful availment test articulated by the plurality in Asahi, and applied by the courts in trademark infringement cases, requires that the defendants contact with the forum state not be due to happenstance. This requirement goes beyond simple foreseeability to ensure that only those defendants that willingly and purposefully avail themselves of the benefits of a state will be brought to court there. In this case, Clue Computing purposefully directed its advertising at all the states. It did nothing to avoid Massachusetts. It knowingly worked for Digital, with PTS as an intermediary. In fact, Clue Computers work for Digital effectively comprised 33-50% of Clue Computings 1995 annual income. Indeed, Clue Computing has availed itself of the benefits of doing business in the forum state by advertising its work for Digital on its Web site, in an effort to attract more customers. Consequently, * * * Clue Computing has taken no measures to avoid contacts in the forum state, but rather, has encouraged them. It does not appear that Clue Computing has done anything to avoid jurisdiction in terms of its non-Web (non-advertising) contacts with Massachusetts. Additionally, Clue Computings Web site is interactive, encouraging and enabling anyone who wishes, including Massachusetts residents, to send email to the company. The nature and quality of commercial activity that Clue Computing conducted over the Internet satisfies the purposeful availment due process test. 3. Reasonabl eness In assessing reasonableness, the Court has directed focus on five gestalt factors: (1) the defendants burden in appearing in the court; (2) the forum states interest in hearing the suit; (3) the plaintiffs convenience and interest in effective relief; (4) the judicial systems interest in obtaining the most effective resolution of the controversy; and (5) the common in-

terests of all interested states in promoting substantive social policies. In this case I find that the assertion of personal jurisdiction over the defendants by this Massachusetts court is reasonable under the gestalt factors. The first factor relating to the defendants burden in appearing clearly weighs in the defendants favor in this case. As the First Circuit found, the burden [of distance], and its inevitable concomitant * * * great inconvenience are entitled to substantial weight in calibrating the jurisdictional scales. Here, the defendant will be required to litigate this case in the Massachusetts court despite the fact that Robison, Clue Computings sole full-time employee and only witness resides in Colorado. However, the defendant in this case is able and willing to travel, as evidenced by Robisons self-proclaimed frequent and extensive business travel. In addition, modern technology allows for easier communication between the states, enabling Robison to perhaps conduct his affairs from Massachusetts. The First Circuit recently indicated that this factor is only meaningful where a party can demonstrate some kind of special or unusual burden. In the present case, defendant does not allege anything special or unusual about its situation other than the ordinary inconvenience of litigating an action in another state. The second factor relates to the interests of the state of Massachusetts. This factor weighs in favor of keeping the lawsuit in Massachusetts. Parker Brothers and Hasbro Interactive, both located in Massachusetts, are economic entities subject to Massachusetts law. They are the entities that suffer most from the alleged tortious use of their trademark rights in clue.com. Massachusetts has an interest in preventing trademark infringement against those subject to the protections and requirements of its laws. The third gestalt factor, which relates to convenience of the venue to the plaintiff, plainly weighs in the plaintiffs favor. Hasbro, located in nearby Rhode Island, and Parker Brothers and Hasbro Interactive, both located in Massachusetts, find it convenient to pursue this action in the state of Massachusetts. Hasbros witnesses concerning the alleged trademark dilution will likely come from the Parker Brothers and Hasbro Interactive divisions in Beverly, Massachusetts. The fourth factor relates to the judicial systems interest in the forum. Generally, this factor is considered a wash. If this case is dismissed, it is unlikely that the parties will be able to resolve the dispute without judicial intervention in some forum. The most efficient path for the judicial system, then, is to move forward with the lawsuit in the present forum. Therefore, at least to some degree, the fourth gestalt factor weighs in favor of the plaintiff. The fifth and last gestalt factor concerns substantive social policies. In this case, the substantive social policy at issue is the assertion of personal jurisdiction in trademark cases based upon Internet activities and the resulting burden of forcing businesses with web sites to litigate in foreign jurisdictions. While I share the concern of commentators in ensuring maintenance of some limits to the reach of personal jurisdiction, I do not believe that this is a case that will open a floodgate. I have reservations about decisions * * * [that] found that the existence of a Web site alone is enough to allow jurisdiction in any state. In any event, the collection of additional circumstances found here justifies the exercise of jurisdiction in this case. If the injury did not occur in Massachusetts, or the defendant did not solicit business in this state, the outcome would not be the same. But the set of facts here distinguishes this case from Bensusan, upon which the defendant relies most heavily. In Bensusan, the defendant was not soliciting business from residents of other states. Instead, that defendant used its Web site for local advertisement and only incidentally had its message taken beyond its target group. Similarly, in [other cases], the courts dismissed actions against defendants with World Wide Web sites when the defendants were not using the sites to avail themselves of business in other states. The gestalt factors taken together weigh in the plaintiffs favor. The only factor in the defendants favor is its burden in appearing. However, the burden of the defendants appearance is primarily important as a gestalt factor to avoid harassing litigation. In this case,

there is no evidence that the plaintiffs have brought this lawsuit in order to harass or vex the defendant. Recognizing that deference should be given to the plaintiffs choice of forum, I find that the assertion of jurisdiction by this court is reasonable. V. Transfer of Venue As an alternative to dismissal, the defendant moves to transfer the action to the District of Colorado. Section 1404(a) of Title 28 of the United States Code provides that [f]or the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought. The purpose of the statute is to allow a district court to transfer the case to another district court in consideration of convenience and fairness. A transfer of venue is at the discretion of the district court, and the burden of proof for the transfer lies with the defendant. The courts discretion should be guided by the balancing of numerous factors, while bearing in mind that plaintiffs choice of forum is entitled to great weight. These factors include the convenience of the parties and witnesses, the availability of documents, the possibility of consolidation and the interests of justice. The possibility of consolidation is not relevant in this case. The only action now existing in Colorado is in the state court. The interests of justice do not weigh heavily here toward one forum or another. The convenience of the parties and witnesses are equally balanced. However, the defendants have the burden of making a strong showing that their choice of forum is superior. The existence of one witness, Robison, in Colorado, is not such a showing. Robisons burden in maintaining a business while litigating this action should be tempered by modern means of communication that allow a party to litigate in one state while remaining for the majority of the time in his own state. Therefore, I find the transfer of venue is unnecessary and the plaintiffs choice of forum will prevail. VI. CONCLUSION For the reasons set forth more fully above, I DENY the motion to dismiss for lack of personal jurisdiction or to transfer the action.