Exercise of jurisdiction/ nonresident defendants

Texas Case Law

TRAVELJUNGLE v. AM. AIRLINES, 2-06-178-CV (Tex.App. [2nd
Dist.] 12-14-2006) TRAVELJUNGLE, APPELLANT v. AMERICAN
AIRLINES, INC., APPELLEE. No. 2-06-178-CV. Court of
Appeals of Texas, Second District, Fort Worth. Delivered:
December 14, 2006.

APPEAL FROM THE 96TH DISTRICT COURT OF TARRANT COUNTY.

PANEL M: LIVINGSTON, GARDNER, and WALKER, JJ.

OPINION

TERRIE LIVINGSTON, JUSTICE.

Introduction

This is an accelerated interlocutory appeal from the trial
court’s order denying appellant TravelJungle’s special
appearance. See TEX. CIV. PRAC. & REM. CODE ANN. §
51.014(a)(7) (Vernon Supp. 2006). In one issue,
TravelJungle challenges the trial court’s determination that
it had sufficient minimum contacts with the State of Texas
that would enable Texas to assert personal jurisdiction
over it. Because TravelJungle did not meet its burden of
proof, under the standard of review articulated by the
Texas Supreme Court, to disprove all possible bases of
jurisdiction, we affirm the trial court’s order.

Background Facts

TravelJungle operates a website that gathers hotel, car
rental, and airline flight schedules and fare information
in response to internet requests from consumers. With
regard to airline information, TravelJungle uses special
software to gather the flight and fare information from
airlines’ websites and from other travel websites, such as
Expedia.com and Travelocity.com. Once it obtains that
information, it “assimilates and sorts the data it obtains
from airline and reservation sites and presents it to the
requestor.” Users of TravelJungle’s website search it for
flight information by first choosing a departure and
arrival city. The website then provides the user with
several fares and schedules to choose from, which the user
can then select to make reservations through TravelJungle’s
website.

TravelJungle is registered in the United Kingdom and has
its principal places of business in Germany and Bulgaria.
Its servers and employees are located in Germany and
Bulgaria, and it has no employees in the U.S. If a user of
the website decides to book one of the flights presented by
TravelJungle in response to the user’s request, a
TravelJungle representative in Bulgaria books the flight
with the organization that it got the information from via
that organization’s website. According to TravelJungle,
between February 2003 and June 2004, TravelJungle included
appellee American Airlines, Inc.’s website, AA.com, in its
search for flight schedule and fare information if American
provided services between the departure and arrival cities
listed in a TravelJungle user’s search. TravelJungle also
listed AA.com on its website as one of the sites it
searched to provide this information and displayed a copy
of the American logo on its website.

In 2004, American sued TravelJungle and several other
similar website operators for breach of AA.com’s Use
Agreement, which prohibits users from using the information
on the website for “commercial” purposes; tortious
interference with American’s contracts with authorized
internet distributors of American’s fare and scheduling
data; tortious interference with prospective business
relations, i.e., consumers who could have booked flights
directly on AA.com;[fn1] trespass of AA.com’s servers;
violation of the Texas computer crimes statute;[fn2] civil
conspiracy; common law trademark infringement; violation of
the Texas anti-dilution act;[fn3] and
misappropriation. After learning that American had sued it,
TravelJungle discontinued accessing AA.com and took
American’s logo off its website. It also entered a special
appearance challenging the trial court’s personal
jurisdiction over it. The trial court denied the special
appearance after an evidentiary hearing but declined to
file findings of fact and conclusions of law.

Issue on Appeal

In a single issue on appeal, TravelJungle contends that the
trial court abused its discretion by denying the special
appearance because it negated all possible bases of
jurisdiction as a matter of law. American contends that
TravelJungle did not meet its burden of proof under the
standard of review articulated by the Texas Supreme Court.

Standard of Review

Whether a trial court has personal jurisdiction over a
defendant is a question of law. BMC Software Belg., N.V. v.
Marchand, 83 S.W.3d 789, 793 (Tex. 2002); SITQ, E.U., Inc.
v. Reata Rests., Inc., 111 S.W.3d 638, 644 (Tex.App.-Fort
Worth 2003, pet. denied). The plaintiff bears the initial
burden of pleading sufficient allegations to bring a
nonresident defendant within the provisions of the long-arm
statute. BMC Software, 83 S.W.3d at 793;
Reata, 111 S.W.3d at 644. A defendant challenging a Texas
court’s personal jurisdiction over it must negate all
jurisdictional bases. BMC Software, 83 S.W.3d at 793;
Reata, 111 S.W.3d at 644. We review all of the evidence in
making this determination. Reata, 111 S.W.3d at 645; Michel
v. Rocket Eng’g Corp., 45 S.W.3d 658, 667 (Tex.App.-Fort
Worth 2001, no pet.).

When, as here, a trial court does not issue findings of
fact and conclusions of law with its special appearance
ruling, we imply all facts necessary to support the
judgment. BMC Software, 83 S.W.3d at 794; Reata, 111 S.W.3d
at 645. Because here the appellate record includes both the
reporter’s and clerk’s records, however, these implied
findings are not conclusive. BMC Software, 83 S.W.3d at
795; Reata, 111 S.W.3d at 645. We may review the trial
court’s resolution of disputed fact issues for legal and
factual sufficiency under the same standards of review that
we apply in reviewing a jury’s or trial court’s findings of
fact at trial. Michel, 45 S.W.3d at 668.

Personal Jurisdiction

A Texas court may assert personal jurisdiction over a
nonresident defendant only if the requirements of due
process under the Fourteenth Amendment and the Texas
long-arm statute are satisfied. U.S. CONST. amend. XIV,
§ 1; TEX. CIV. PRAC. & REM. CODE ANN.
§§ 17.041-.045 (Vernon 1997 & Supp. 2006);
Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S.
408, 413-14, 104 S. Ct. 1868, 1871-72 (1984); CSR Ltd. v.
Link, 925 S.W.2d 591, 594 (Tex. 1996) (orig. proceeding);
Michel, 45 S.W.3d at 668.

Long-arm Statute

The Texas long-arm statute governs Texas courts’
exercise of jurisdiction over nonresident defendants. TEX.
CIV. PRAC. & REM. CODE ANN. §§ 17.041-.045;
BMC Software, 83 S.W.3d at 795; Reata, 111 S.W.3d at 645.
That statute permits Texas courts to exercise jurisdiction
over a nonresident defendant who “does business” in Texas.
TEX. CIV. PRAC. & REM. CODE ANN. § 17.042; BMC
Software, 83 S.W.3d at 795; Reata, 111 S.W.3d at 645. The
statute lists some activities that constitute “doing
business,” including the commission of a tort, in whole or
in part. TEX. CIV. PRAC. & REM. CODE ANN. § 17.042;
Reata, 111 S.W.3d at 645. The list of activities set forth
in section 17.042 is not exclusive, however. BMC Software,
83 S.W.3d at 795.

Section 17.042’s broad language extends Texas courts’
personal jurisdiction only “as far as the federal
constitutional requirements of due process will permit.”
Id. (quoting U Anchor Adver., Inc., N.H. v. Burt,
553 S.W.2d 760, 762 (Tex. 1977)); Reata, 111 S.W.3d at 645.
Therefore, in determining whether a nonresident defendant
has met its burden to negate all bases of jurisdiction, we
rely on precedent from the United States Supreme Court and
other federal courts, as well as our own state’s decisions.
BMC Software, 83 S.W.3d at 795.

Due Process

Due process is satisfied when (1) the defendant has
established minimum contacts with the forum state and (2)
the exercise of jurisdiction comports with traditional
notions of fair play and substantial justice. Int’l Shoe
Co. v. Washington, 326 U.S. 310, 316, 66 S. Ct. 154, 158
(1945); BMC Software, 83 S.W.3d at 795; Reata, 111 S.W.3d
at 645. Here, appellant challenges only the first component
of due process: whether it established minimum contacts
with the State of Texas.

A nonresident defendant who has “purposefully availed”
itself of the privileges and benefits of conducting
business in a foreign jurisdiction has sufficient contacts
with the forum to confer personal jurisdiction on a court
in that forum. Burger King Corp. v. Rudzewicz, 471 U.S.
462, 474-76, 105 S. Ct. 2174, 2183 (1985); BMC Software, 83
S.W.3d at 795. Although not determinative, foreseeability
is an important consideration in deciding whether the
nonresident defendant has purposefully established minimum
contacts with the forum state. BMC Software, 83 S.W.3d at
795; Reata, 111 S.W.3d at 646. Minimum contacts analysis
focuses solely on the actions and reasonable expectations of
the defendant. Michiana Easy Livin’ Country, Inc. v.
Holten, 168 S.W.3d 777, 790 (Tex. 2005).

Because of the unique and onerous burden placed on a party
called upon to defend a suit in a foreign legal system, the
minimum contacts analysis is particularly important when
the defendant is from a different country. Asahi Metal
Indus. Co. v. Superior Court, 480 U.S. 102, 114, 107 S. Ct.
1026, 1033 (1987); BMC Software, 83 S.W.3d at 795. A
defendant should not be subject to a foreign court’s
jurisdiction based on random, fortuitous, or attenuated
contacts. Burger King, 471 U.S. at 475, 105 S. Ct. at 2183;
BMC Software, 83 S.W.3d at 795. Rather, individuals must
have fair warning that a particular activity may subject
them to the jurisdiction of a foreign sovereign. Burger
King, 471 U.S. at 472, 105 S. Ct. at 2181; Guardian Royal
Exchange Assurance, Ltd. v. English China Clays, P.L.C.,
815 S.W.2d 223, 227 (Tex. 1991); Reata, 111 S.W.3d at 646.

Three factors are important in determining whether a
defendant has purposefully availed itself of the forum:
first, only the defendant’s contacts with the forum count;
second, the acts relied on must be purposeful rather than
merely fortuitous; and, third, the defendant must seek some
benefit, advantage, or profit by availing itself of the
forum. Michiana, 168 S.W.3d at 785; Karstetter v. Voss, 184
S.W.3d 396, 403 (Tex.App.-Dallas 2006, no pet.).

General v. Specific Jurisdiction

Personal jurisdiction exists if the nonresident defendant’s
minimum contacts give rise to either specific jurisdiction
or general jurisdiction. Helicopteros Nacionales de
Colombia, 466 U.S. at 413-14, 104 S. Ct. at 1872; BMC
Software, 83 S.W.3d at 795; Reata, 111 S.W.3d at 646. A
trial court has general jurisdiction over a nonresident
defendant when that defendant’s contacts in a forum are
continuous and systematic so that the forum may exercise
personal jurisdiction over the defendant even if the cause
of action did not arise from or relate to activities
conducted within the forum state. BMC Software, 83 S.W.3d at
796; Reata, 111 S.W.3d at 646. In contrast, specific
jurisdiction is present if the nonresident defendant’s
alleged liability arises from or is related to an activity
conducted within the forum. BMC Software, 83 S.W.3d at 796;
Reata, 111 S.W.3d at 646. When a plaintiff asserts that a
trial court has specific jurisdiction over a nonresident
defendant, the minimum contacts analysis focuses on the
relationship among the defendant, the forum, and the
litigation. Guardian Royal, 815 S.W.2d at 227-28; Reata,
111 S.W.3d at 646.

For a Texas trial court to have specific jurisdiction over
a nonresident defendant, it is not necessary that the
nonresident defendant’s conduct actually occur in Texas, as
long as the defendant’s acts were purposefully directed
towards Texas. Calder v. Jones, 465 U.S. 783, 789-90, 104
S. Ct. 1482, 1487 (1984); CSR Ltd., 925 S.W.2d at 595;
Reata, 111 S.W.3d at 646. “[A] defendant should reasonably
anticipate being haled into court where the effects of its
conduct have been intentionally caused through the
purposeful direction of activity toward the forum state,
even if the defendant never physically enters the state.”
Reata, 111 S.W.3d at 646 (quoting Cole v. The Tobacco
Inst., 47 F. Supp. 2d 812, 815 (E.D. Tex. 1999)).

Applicable Facts

Allegations in American’s Pleadings

In its second amended petition, in which TravelJungle was
first added as a defendant in the suit,[fn4] American
asserted that the trial court had personal jurisdiction
over TravelJungle because it is a foreign corporation that
had committed torts in Texas, breached a contract (AA.com’s
Use Agreement) entered into and governed by the laws of
Texas, violated Texas statutory law, and “systematically
did, and still do[es] conduct business in” Texas.

American contends that TravelJungle “uses screen-scraping
software on its Traveljungle.com, Traveljungle.us,
and Hotfares.com websites, as well as other affiliated
sites” and that “Traveljungle’s access and use of AA.com is
without American’s authorization and in violation of the
Use Agreement” for AA.com. According to American,
TravelJungle’s screen-scraping software “sends out
electronic robots, spiders, or other automated scraping
devices across the Internet to enter and search targeted
airline industry websites, including but not limited to
AA.com, and extracts proprietary fares from the sites.”
American’s Use Agreement — which is accessed via a
link at the bottom of the home page entitled “Legal,” but
which users are not specifically required to indicate
agreement with before using AA.com — prohibits the
use of any “robot, spider, or other automatic device,
without first obtaining American[‘s] . . . prior written
consent.” American claims in its petition that “[t]his
unauthorized use of and intermeddling with AA.com [by
sending electronic robots and spiders to AA.com’s servers]
uses valuable computer capacity” and “deprive[s] American
of its ability to possess and use that capacity to serve
legitimate customers.” Thus, American is primarily
asserting that Texas has specific jurisdiction over
TravelJungle, and it has at least pled a sufficient
jurisdictional basis that requires TravelJungle to negate
all possible bases of jurisdiction. See BMC Software, 83
S.W.3d at 793.

Evidence Offered by TravelJungle in Support of Special
Appearance

In support of its special appearance, TravelJungle attached
an affidavit from Kalina Krasteva, who is “responsible for
management of the operations of TravelJungle, Ltd.” In her
affidavit, Krasteva averred that “TravelJungle is the trade
name of an internet-based aggregator of travel
data providing information on airline flights, automobile
rentals and hotel accommodations” and that “TravelJungle was
organized and registered as a limited liability corporation
in the United Kingdom in 2003.” According to Krasteva,
“TravelJungle acquires its data through its automated
computer process that accesses web sites of airlines and
reservation sites such as Expedia and Travelocity in
response to inquiries from TravelJungle users.” Krasteva
further averred that “[s]ince its inception in 2001,
TravelJungle established one reservation for a Texas
resident that was booked directly through the American . .
. site and eight reservations for Texas residents that were
booked through other sites for air transportation with AA.”

Krasteva claimed that before TravelJungle received
American’s second amended petition in 2004, it “was unaware
that AA disapproved of TravelJungle’s use of AA’s website
or logo.” She further averred that “[s]ince TravelJungle
ceased accessing the AA.com web site, any information
relating to AA flights that appears on TravelJungle search
reports is obtained through third-party reservation
systems such as Expedia or other data readily available in
the public domain.” And, finally, she averred that American
“has demanded that TravelJungle not access any information
regarding AA regardless of where such information may
reside in the public domain and has stated it requires that
TravelJungle stop distributing any information regarding
American fares.”

American filed a response, to which it attached an
affidavit from Daniel Henry, the then current
“Managing Director, Customer Technology/Technical Services”
for American.[fn5] Henry averred that AA.com’s servers are
located in Plano, Texas. He also averred that “[s]creen-scraping
of AA.com uses valuable computer capacity.
To the extent that scrapers use AA.com’s capacity, they
deprive American of its ability to possess and use that
capacity to serve other customers.” Henry also averred that
Exhibit 7 attached to the response is an exhibit of a
computer report showing that AA.com received 2,972 fare
search requests from IP address 207.36.213.160 on June 14,
2004. Preceding that report is a copy of a deposition of
Bryce Short, who is “Director of Customer Retention and
Quality” for Affinity Internet, Inc. He is the custodian of
records able to identify the customer or customers of
Affinity Internet that on June 14, 2004 were the end users
of or otherwise connected with the IP address
“207.36.213.160.” Short identified that end user as being
set forth on attachment 1 to the deposition. That
attachment shows that the domain “207.36.213.160” was
registered to TravelJungle Limited, attention Kallina
Krasteva.[fn6]

The trial court also heard evidence at a hearing on April
13, 2006. Dr. Hans Josef Vogel, a minority
shareholder of TravelJungle, testified that TravelJungle
employs a “metasearch travel engine.” He testified that
TravelJungle does not “scrape” websites; he defined
scraping as taking a picture of another website, scraping
pixels off the screen, and reconstituting them on another
PC’s screen. When asked what method TravelJungle employed
for accessing flight schedule and fare data, Dr. Vogel
answered that “at the request of a consumer, [TravelJungle]
seek[s] information from another site but [does] not scrape
the other site.” He also continued, ambiguously, “You could
also call that robots — robots or spiders.
Essentially, it’s the same thing.” It is unclear here
whether he meant that robots and spiders are the same as
scraping or whether robots and spiders are the same thing as
what TravelJungle’s software does.

Vogel later admitted that someone had to purposefully put
AA.com into a search script when TravelJungle first started
accessing AA.com and that he verified that TravelJungle had
stopped accessing AA.com by making sure that it would not
be put in the search script anymore. He also admitted that
when TravelJungle accesses AA.com, “there might be a
contact with the servers of American Airlines through that
automated software program.” He also distinguished
TravelJungle from Google.com on the ground that
TravelJungle never sent software to a server to simply
collect fare data at random times; a logical inference from
Vogel’s testimony is that TravelJungle did send software to
AA.com’s servers, but in connection with a specific
inquiry, not a random one.

Vogel testified that he did not know where AA.com’s servers
were located and that their location is not disclosed on
AA.com. He said that TravelJungle has no bank accounts or
offices in Texas and did no business in Texas other than
what he had previously described regarding the websites.
Vogel also testified that TravelJungle does not charge a
user for obtaining information on its website unless the
user actually books a flight, then it charges the user a
booking fee. In Krasteva’s affidavit, she averred that
TravelJungle had not retained any part of an American fare
that it had processed and that “all fare revenues processed
by TravelJungle were paid in full either to reservation
sites or to [American] itself.”

Vogel testified without challenge that TravelJungle had
never intentionally misrepresented information that it
received from AA.com but that he could not rule out
database error; according to Vogel, TravelJungle displayed
only a copy of what its software actually found. He also
testified without challenge that American had never blocked
TravelJungle’s access to AA.com, nor had it ever tried to
“mask” AA.com from TravelJungle’s software.

Analysis

According to American, its “claims in this suit are based
upon TravelJungle’s repeated accessing of AA.com and
selling of American fare data.” American contends that
TravelJungle failed to negate facts showing that it
purposefully directed its activities towards Texas, i.e.,
facts establishing specific jurisdiction. Allegations that a
tort was committed in Texas satisfy the long ? arm
statute, but not due process concerns. Michiana, 168 S.W.3d
at 788. Thus, our analysis will focus on whether
TravelJungle met its burden to negate American’s
allegations that its activities satisfy the minimum contacts
requirement of due process.

TravelJungle contends that it was just an occasional viewer
of AA.com and that it merely “looked at” AA.com, likening
its actions to that of a person visiting several websites,
reading fare and scheduling data from the websites, and
compiling his or her own list. However, TravelJungle’s own
witness admitted that TravelJungle’s contacts went beyond
merely looking at AA.com when he testified that someone at
TravelJungle had to intentionally include AA.com in its
software search script and that its software is different
from Google.com because TravelJungle does not send its
software out to search AA.com at random. It is undisputed
that TravelJungle specifically entered AA.com into its
search script and utilized AA.com in its searches if AA.com
provided service to the user-requested arrival and
departure cities from February 2003 to June 2004. Vogel
admitted that there might be contact between TravelJungle’s
servers and AA.com’s servers in Texas when TravelJungle sent
its automated software to obtain fare and scheduling data
from AA.com.

In addition, TravelJungle’s evidence of how it obtained the
fare and scheduling data was unclear; although it contends
that its software merely “looked at” AA.com, Vogel’s
testimony did not explain how the software merely looked at
AA.com. He also specifically analogized to Google.com’s
software, implying that TravelJungle intentionally sent
software to AA.com’s servers. Moreover, American presented
evidence that a website address registered to TravelJungle
accessed AA.com 2,972 times in one day, that TravelJungle’s
use of software to search AA.com “uses valuable computer
capacity,” and that TravelJungle’s use of AA.com’s server
capacity deprives American of the ability to use that same
capacity to serve its other customers. We conclude and hold
that TravelJungle did not meet its burden of negating the
evidence showing that it purposefully directed its data-gathering
activity toward AA.com’s servers, which are located in Texas,
for commercial, profit-driven purposes; thus, the basis for jurisdiction
specifically arises out of the conduct of which American
complains. See Guardian Royal, 815 S.W.2d at 227-28.

TravelJungle contends that its activities could not subject
it to specific jurisdiction in Texas because it did not
know where AA.com’s servers were located, it was not aware
that American objected to or disapproved of its data-gathering
activities, and it ceased searching AA.com after American sued it.
But TravelJungle does not explain why its cessation of such activities
should not subject it to personal jurisdiction in a suit specifically
complaining of those past activities. Furthermore, it has
not cited any authority, nor have we found any, requiring a
potential plaintiff to inform a potential defendant of its
objections to the potential defendant’s purposeful activity
towards a forum for purposes of establishing personal
jurisdiction.

As to TravelJungle’s contention that it did not know where
AA.com’s servers were located, we do not believe that it
should be able to avoid personal jurisdiction by
purposefully engaging in activity directed towards a server
located in a particular forum and then claiming ignorance
of the location of that forum. In this respect, this case
is similar to federal cases holding that senders of spam
e-mails are subject to personal jurisdiction in the forum
in which their e-mails are received or where the server
processing those e-mails is located. Generally, these cases
hold that by purposefully targeting e-mail addresses using
a particular server, the senders assumed the risk that they
would be haled into a forum where that server is located.
See, e.g., Verizon Online Svcs., Inc. v. Ralsky, 203 F.
Supp. 2d 601, 618 (E.D. Va. 2002) (“Defendants assumed the
risk of injuring valuable property in Virginia by
deliberately sending millions of UBE [spam e-mails] to and
through Verizon’s e-mail servers located in Virginia for
pecuniary gain.”). These cases focus, not on the defendants’
actual knowledge of the destination of their e-mail
activity, but on the deliberate nature of the defendants’
activity. See id. at 620 (“Defendants’ conduct and
connections to Virginia were of their own choosing. . . .
They cannot seek to escape answering for these actions by
simply pleading ignorance as to where these servers were
physically located.”); Internet Doorway, Inc. v . Parks,
138 F. Supp. 2d 773, 779 (S.D. Miss. 2001) (“[Defendant]
then sent the e-mail to persons presumably all over the
country and the world. By doing this, [defendant] had to
have been aware that the e-mail would be received and
opened in numerous fora, including Mississippi.”).

TravelJungle contends that the spam e-mail analogy is
inapposite because it does not send spam and because it
searched AA.com only at a user’s request. However, the
evidence regarding TravelJungle’s purposeful contact of
AA.com’s servers is very similar to the e-mail contact
initiated in the cases cited above in that it is
TravelJungle’s activity directed toward AA.com that is
important, rather than TravelJungle’s actual awareness of
the physical location of AA.com’s servers. By deliberately
directing its activity toward AA.com, TravelJungle should
have been aware of the possibility that it would be haled
into any forum where AA.com’s servers were located. See
Reata, 111 S.W.3d at 646; see also Verizon Online Svcs.,
203 F. Supp. 2d at 620; Internet Doorway, 138 F. Supp. 2d at
779.

Accordingly, we hold, on the facts of this case, that
TravelJungle did not meet its burden under the appropriate
standard of review to negate all bases of jurisdiction.
More specifically, American’s allegations of specific
jurisdiction arising out of TravelJungle’s conduct of which
American complains have not been negated. Because of this
determination, we need not address American’s other alleged
bases for jurisdiction or TravelJungle’s responses thereto.
We overrule TravelJungle’s sole issue on appeal.

Conclusion

Having overruled TravelJungle’s sole issue, we affirm the
trial court’s order denying TravelJungle’s special
appearance and remand this case to the trial court for
further proceedings. We also lift the stay of all
proceedings with respect to American’s claims against
TravelJungle that we previously granted on June 27, 2006,
effective as of the date mandate issues in this appeal.

[fn1] In connection with this allegation, American alleged
that TravelJungle’s software did not always pick up all
available fares, including the lowest fares, and that if
TravelJungle users had known that, they might have
purchased their fares at AA.com at a lower fare.

[fn2] TEX. PENAL CODE ANN. § 33.02 (Vernon 2003).
This statute provides that “[a] person commits an offense
if the person knowingly accesses a computer, computer
network, or computer system without the effective consent
of the owner.” Id. § 33.02(a).

[fn3] TEX. BUS. & COM. CODE ANN. § 16.29 (Vernon
2002). This statute provides that

[a] person may bring an action to enjoin an act likely to
injure a business reputation or to dilute the distinctive
quality of a mark registered under this chapter or Title
15, U.S.C., or a mark or trade name valid at common law,
regardless of whether there is competition between the
parties or confusion as to the source of goods or
services.

Id.

[fn4] The same allegations are in American’s fourth amended
petition, which was the live petition at the time of the
evidentiary hearing and trial court’s ruling on the special
appearance. The record also contains a fifth amended
petition; however, TravelJungle concedes that because the
fourth amended petition was the petition on file when the
trial court ruled on the special appearance, it “is
presumed to be the version at issue in this appeal.”

[fn5] Henry averred that in his position, he had
“responsibility for the Architecture, Application
Development, Operations, and Infrastructure for all
customer-facing applications, which includes
AA.com.”

[fn6] TravelJungle contends that the evidence shows the
address was registered to Cybergate, Inc. rather than
TravelJungle. Although one of the questions to Short
indicates that the address appears to be registered to
Cybergate, Inc., in response to a subsequent question
asking the names of the persons or entities that were the
end users of the address, Short answered that “[t]he
customer records of Affinity Internet, Inc., set forth as
attachment one, detail the record owner of the account
using said IP address as of June 14, 2004.” That attachment
does not list Cybergate as the registrant of the address;
rather, it shows TravelJungle Limited as the name of the
customer.