ORDER

This action arises from defendant 3 Daughters Brewing, LLC's ("3 Daughters") and defendant LMMML, LLC's ("LM") alleged use of plaintiff California Brewing Company's ("CBC") "Beach Blonde Ale" mark. Before the court is defendants' motion to dismiss for lack of personal jurisdiction and improper venue or, alternatively, to transfer venue. ECF No. 10. Plaintiff opposes the motion. ECF No. 14. The court submitted the matter as provided by Local Rule 230(g). As explained below, the court DENIES defendants' motion.

I. BACKGROUND

On November 2, 2015, plaintiff filed a complaint, which makes the following allegations. Compl., ECF No. 1. Plaintiff CBC is a California corporation with its principal place of business in Anderson, California. Id. ¶ 11. CBC is engaged in the business of creating, manufacturing, distributing, and marketing handmade craft beer. Id. In 2007, CBC created a recipe for a very pale, American ale style beer, and conceived of the "Beach Blonde Ale" mark to identify the beer. Id. ¶ 14. CBC applied to register its mark with the U.S. Patent and Trademark Office ("USPTO") on December 23, 2007, and the USPTO granted registration of the mark on October 7, 2008. Id. ¶¶ 15-17, Ex. 2. CBC has continuously used its mark in connection with the advertisement and sale of its beer products and merchandise since 2007. Id. ¶¶ 14-18.

Defendants 3 Daughters and LM are Florida limited liability companies with their principal places of business in St. Petersburg, Florida. See id. ¶¶ 12-13; Harting Aff. ¶¶ 3-10. According to an affidavit submitted by Michael Harting, the CEO of LM, LM is the sole manager of 3 Daughters. See Harting Aff. ¶ 4. The complaint alleges defendants began selling beer using plaintiff's Beach Blond Ale mark in 2014. Compl. ¶ 25. Defendants allegedly have engaged in a marketing campaign promoting the infringing product, and sell the beer nationwide through online retailers, tasting rooms, and retail stores. Id. ¶¶ 25-27. The complaint alleges defendants' use of the mark is likely to confuse consumers, because defendants' product uses an identical mark to plaintiff's product, both products are beer, and both products are marketed and sold through similar channels. Id. ¶ 33. The complaint further alleges defendant 3 Daughters filed an application with the USPTO to register the word mark "Beach Blonde Ale" on May 17, 2013, but the USPTO rejected the application on September 5, 2013 based on CBC's existing registration. Id. ¶ 39.

The complaint asserts claims for false designation of origin and unfair competition under 15 U.S.C. § 1125(a); trademark infringement under 15 U.S.C. § 1114; unfair competition and/or unfair and deceptive practices under the laws of all U.S. states, including California Business & Professions Code section 17200 et seq.; trademark infringement under California common law; common law unfair competition; false advertising under California Business & Professions Code section 17500 et seq.; and unjust enrichment. See id. ¶ 7.

On December 3, 2015, defendants moved to dismiss the complaint for lack of personal jurisdiction and improper venue or, alternatively, to transfer venue. ECF No. 10 ("Mot."). As noted, plaintiff opposes the motion, ECF No. 14 ("Opp'n"), and defendants replied, ECF No. 18 ("Reply").

II. LEGAL STANDARD

A. Rule 12(b)(2) Lack of Personal Jurisdiction

A defendant may move to dismiss a complaint for lack of personal jurisdiction. Fed. R. Civ. P. 12(b)(2). Even though the defendant makes a motion under Rule 12(b)(2), it is the plaintiff's burden to establish the court's personal jurisdiction. See Sher v. Johnson, 911 F.2d 1357, 1361 (9th Cir. 1990). When, as here, the court acts without holding an evidentiary hearing, "the plaintiff need make only a prima facie showing of jurisdictional facts to withstand the motion to dismiss." Ballard v. Savage, 65 F.3d 1495, 1498 (9th Cir. 1995). In other words, "the plaintiff need only demonstrate facts that if true would support jurisdiction over the defendant." Id. The plaintiff may not rely on "bare allegations" alone, Schwarzenegger v. Fred Martin Motor Co., 374 F.3d 797, 800 (9th Cir. 2004), but the court assumes the complaint's allegations are true unless "directly contravened" by other evidence, Harris Rutsky & Co. Ins. Servs., Inc. v. Bell & Clements Ltd., 328 F.3d 1122, 1129 (9th Cir. 2003). Any factual conflicts contained in the parties' affidavits are resolved in the plaintiff's favor. Doe v. Unocal Corp., 248 F.3d 915, 922 (9th Cir. 2001) (per curiam).

B. Rule 12(b)(3) Improper Venue

Under Rule 12(b)(3), a defendant may move to dismiss a complaint for improper venue. Fed. R. Civ. P. 12(b)(3). Once the defendant has challenged the propriety of venue in a given court, the plaintiff bears the burden of showing that venue is proper. See Piedmont Label Co. v. Sun Garden Packing Co., 598 F.2d 491, 496 (9th Cir. 1979). In assessing a motion to dismiss for improper venue, a court may consider facts outside of the pleadings, but must draw all reasonable inferences and resolve all factual conflicts in favor of the non-moving party. Murphy v. Schneider Nat'l, Inc., 362 F.3d 1133, 1138 (9th Cir. 2004). If the court determines that venue is improper, the court must either dismiss the action or, if it is in the interests of justice, transfer the case to a district or division in which it could have been brought. 28 U.S.C. § 1406(a); see King v. Russell, 963 F.2d 1301, 1304 (9th Cir. 1992). ///// /////

III. DISCUSSION

A. Personal Jurisdiction

When no federal statute governing personal jurisdiction applies, the district court applies the law of the state in which it sits, here California. Schwarzenegger, 374 F.3d at 800 (citing Fed. R. Civ. P. 4(k)(1)(A)). "Because California's long-arm statute allows the exercise of personal jurisdiction to the full extent permissible under the U.S. Constitution, our inquiry centers on whether exercising jurisdiction comports with due process." Picot v. Weston, 780 F.3d 1206, 1211-12 (9th Cir. 2015) (internal quotation marks and citation omitted; citing Cal. Civ. Proc. Code § 410.10). Federal due process requires some "minimum contacts" between the defendant and the relevant forum so that the court's exercise of personal jurisdiction "does not offend traditional notions of fair play and substantial justice." Int'l Shoe Co. v. Washington, 326 U.S. 310, 316 (1945) (internal quotation marks and citations omitted).

There are two forms that personal jurisdiction may take: general and specific. Picot, 780 F.3d at 1211. CBC does not contend defendants are subject to general jurisdiction in California, and instead argues specific jurisdiction exists. See Opp'n at 1. The test for specific personal jurisdiction has three parts: first, the plaintiff must show the defendant purposefully directed its activities at residents of the forum or purposefully availed itself of the privilege of doing business in the forum state; second, the plaintiff must show its claim arises out of or is related to the forum-related activities; and third, if the plaintiff satisfies the first two prongs, the burden shifts to the defendant to present a "compelling case" that the exercise of personal jurisdiction would be unreasonable or unfair. Picot, 780 F.3d at 1211-12 (quoting Schwarzenegger, 374 F.3d at 802; citations omitted).

1. Purposeful Direction

The first prong of the specific jurisdiction test refers to both purposeful direction and purposeful availment, in the disjunctive. In cases sounding in tort, the Ninth Circuit typically employs a purposeful direction analysis. Id. at 1212 (citing Schwarzenegger, 374 F.3d at 802-03); Mavrix Photo, Inc. v. Brand Techs., Inc., 647 F.3d 1218, 1228 (9th Cir. 2011) (employing purposeful direction analysis in action for copyright infringement). Because trademark infringement involves tortious conduct, the court here addresses only purposeful direction, without reaching purposeful availment. Purposeful direction is evaluated under the three-part "effects" test established in Calder v. Jones, 465 U.S. 783 (1984), which requires a plaintiff to show the defendant "(1) committed an intentional act, (2) expressly aimed at the forum state, (3) causing harm that the defendant knows is likely to be suffered in the forum state." Picot, 780 F.3d at 1214 (quoting Schwarzenegger, 374 F.3d at 803). "The inquiry whether a forum State may assert specific jurisdiction over a nonresident defendant focuses on the relationship among the defendant, the forum, and the litigation." Walden v. Fiore, 571 U.S. ___, 134 S. Ct. 1115, 1121 (2014) (internal quotation marks and citation omitted).

a) Intentional Act

In the context of the Calder effects test, "intent" means "an intent to perform an actual, physical act in the real world, rather than an intent to accomplish a result or consequence of that act." Schwarzenegger, 374 F.3d at 806. CBC alleges defendants market and sell beer products that infringe CBC's Beach Blonde Ale trademark. Compl. ¶¶ 22-33, 38, 58-59. This is a sufficient allegation of an intentional act within the meaning of the Calder test. See Wash. Shoe Co. v. A-Z Sporting Goods Inc., 704 F.3d 668, 674 (9th Cir. 2012) (purchasing and selling boots that allegedly infringed plaintiff's copyrighted design constituted "intentional acts" under Calder test).

b) Express Aiming

The second prong of the purposeful direction inquiry is whether the defendant expressly aimed its act at the forum state. Picot, 780 F.3d at 1214. "The 'express aiming' analysis depends, to a significant degree, on the specific type of tort or other wrongful conduct at issue." Schwarzenegger, 374 F.3d at 807. In intellectual property cases, "the Ninth Circuit has held that specific jurisdiction exists where a plaintiff files suit in its home state against an out-of-state defendant and alleges that defendant intentionally infringed its intellectual property rights knowing [the plaintiff] was located in the forum state." Amini Innovation Corp. v. JS Imps., Inc., 497 F. Supp. 2d 1093, 1105 (C.D. Cal. 2007) (citing Columbia Pictures Television v. Krypton Broad. of Birmingham, Inc., 106 F.3d 284 (9th Cir. 1997), reversed on other grounds by Feltner v. Columbia Pictures Television, Inc., 523 U.S. 340 (1998), and Panavision Int'l, L.P. v. Toeppen, 141 F.3d 1316, 1321 (9th Cir. 1998); collecting subsequent cases); see also Wash. Shoe Co., 704 F.3d at 675-76; Adobe Sys. Inc. v. Blue Source Grp., Inc., 125 F. Supp. 3d 945, 961 (N.D. Cal. 2015). Courts often refer to this theory of specific jurisdiction as "individualized targeting" of the plaintiff. See, e.g., Brayton Purcell LLP v. Recordon & Recordon, 606 F.3d 1124, 1130 (9th Cir. 2010).

Here, CBC alleges defendants intentionally infringed its Beach Blonde Ale mark with knowledge of CBC's ownership of the mark and with knowledge CBC is located in California. See, e.g., Opp'n at 5-6; Compl. ¶¶ 24, 39, 62. CBC alleges the USPTO rejected defendants' application to register marks in 2013 because the marks were confusingly similar or identical to CBC's existing registered trademark, and the USPTO informed defendants of CBC's superior rights. Compl. ¶ 39; Goschke Decl. ¶ 6. In addition, plaintiff's CEO, Jack Goschke, contacted defendants in March 2015 to inform defendants of CBC's rights and to ask defendants to stop using the mark. See Goschke Decl. ¶ 8; Harting Decl. ¶ 27. CBC contends defendants had knowledge of plaintiff's residence in the forum state because plaintiff's trademark registration identifies CBC as a resident of California and of this district. Opp'n at 5. The court notes plaintiff's name—California Brewing Company—also signals it is a resident of California. Defendants have not offered any evidence contradicting these allegations and have not denied knowledge of plaintiff's mark registration or location. Mr. Harting's declaration admits defendants were aware of CBC's trademark registration and investigated the registration after Mr. Goschke contacted defendants. Harting Decl. ¶ 27.

CBC alleges defendants have used plaintiff's mark for the purpose of promoting defendants' business and attracting new business in competition with plaintiff. For example, CBC avers defendants use metatags and search engine optimization to attract consumers searching for "Beach Blonde Ale" to their website and social media pages, and use "Beach Blonde Ale" branding throughout their website and social media posts. Goschke Decl. ¶¶ 12, 14, 16, 20. Because plaintiff and defendants each sell beer using the name "Beach Blonde Ale," with CBC's use allegedly beginning first in time, it is plausible defendants divert consumers searching for plaintiff's product to defendants' web pages to profit from the goodwill and recognition associated with the Beach Blonde Ale mark. In addition, CBC has submitted evidence defendants sell their product to consumers in California through national retailers and market to California consumers through social media, Wilks Decl. ¶¶ 2-3; Gillette Decl. ¶¶ 2-3; Liedtke Decl. ¶¶ 2-9; Goschke Decl. ¶¶ 16-20, 28-29; defendants' website states they ship their beer nationwide, Goschke Decl. ¶ 21; and defendants' CEO has said defendants want to grow significantly, id. ¶ 22. The court finds these allegations of individualized targeting with knowledge of plaintiff's location sufficient to establish express aiming under Ninth Circuit precedent. See, e.g., Wash. Shoe Co., 704 F.3d at 675-79.

In their reply brief, defendants argue these allegations cannot form the basis of the court's jurisdiction after the Supreme Court's recent decision in Walden v. Fiore, 571 U.S. ___, 134 S. Ct. 1115 (2014). Reply at 3-4, 6-9. In Walden, the plaintiffs alleged an agent of the Drug Enforcement Administration (DEA) violated their Fourth Amendment rights by seizing cash from them at a Georgia airport on their return trip to their Nevada residence. 134 S. Ct. at 1119-20. The Court held the fact the agent knew a delay in returning the funds would affect persons with connections to Nevada was not sufficient to establish specific jurisdiction over the agent in Nevada. Id. at 1124-25. The Court emphasized the specific jurisdiction inquiry must focus on the relationship between the defendant's conduct and the forum state, and "a defendant's relationship with a plaintiff or third party, standing alone, is an insufficient basis for jurisdiction." Id. at 1122-23; accord Picot, 780 F.3d at 1214. To illustrate these principles, the Court distinguished Calder, explaining:

The crux of Calder was that the reputation-based "effects" of the alleged libel connected the defendants to California, not just to the plaintiff. The strength of that connection was largely a function of the nature of the libel tort. However scandalous a newspaper article might be, it can lead to a loss of reputation only if communicated to (and read and understood by) third persons.

The instant action is more analogous to Calder than to Walden, because the nature of defendants' alleged tortious conduct connects defendants to California. Cf. Schwarzenegger, 374 F.3d at 807 ("The 'express aiming' analysis depends, to a significant degree, on the specific type of tort or other wrongful conduct at issue."). Just as publication to third persons is a necessary element of libel, likelihood of consumer confusion is a necessary element of trademark infringement. See KP Permanent Make-Up, Inc. v. Lasting Impression I, Inc., 408 F.3d 596, 602 (9th Cir. 2005). Specific jurisdiction over 3 Daughters and LM is not based on "random, fortuitous, or attenuated" contacts defendants made with CBC, Walden, 134 S. Ct. at 1123 (quoting Burger King Corp. v. Rudzewicz, 471 U.S. 462, 475 (1985)), but rather on defendants' alleged conduct in marketing and selling an infringing product to California consumers with an alleged intent to directly compete with CBC. Accordingly, exercising personal jurisdiction over defendants in this action is not inconsistent with Walden. Cf. Tresona Multimedia LLC v. Legg, No. 14-02141, 2015 WL 470228, at *4 (D. Ariz. Feb. 4, 2015) ("The central lesson of Walden is that . . . jurisdiction must be based on a defendant's contacts with the forum. Case law has established that certain actions by an out-of-state defendant—such as . . . directly competing with a person (Brayton)—create contacts with that person's forum.").

Moreover, the court is not persuaded by defendants' argument that acts by third party retailers are irrelevant to the analysis. Although standalone acts by third parties cannot establish specific jurisdiction, see Walden, 134 S. Ct. at 1123, here, there is evidence defendants sold their goods to national retailers with the intent to develop a national market, see, e.g., Goschke Decl. ¶¶ 21-23. If such allegations are true, it would not be reasonable for defendants to disclaim any connection to sales in California. Cf. Seirus Innovative Accessories, Inc. v. Cabela's, Inc., No. 09-102, 2009 WL 9141752, at *3 (S.D. Cal. Nov. 2, 2009) (defendant who sold products through a national retailer should have reasonably expected sales in state where retailer marketed products); Hilsinger Co. v. FBW Investments, 109 F. Supp. 3d 409, 426 (D. Mass. 2015). Otherwise, defendants could avoid jurisdiction in a forum simply by acting through a third party and pleading ignorance.

At this stage of the proceedings, the court finds plaintiff has satisfied express aiming.

c) Foreseeable Harm

With respect to the third part of the Calder test, the court finds plaintiff's allegations sufficient to establish defendants knew the resulting harm would be suffered in California. Here, it was foreseeable that plaintiff would be harmed by infringement of its Beach Blonde Ale mark, and that some of the harm would occur in California, where defendants knew CBC resided at least as early as March 2015, Harting Decl. ¶ 27, and likely as early as September 2013, Compl. ¶ 39; Goschke Decl. ¶ 6. See Brayton, 606 F.3d at 1131. As discussed above, Mr. Harting admits plaintiff contacted him and asked him to stop using its Beach Blonde Ale mark in March 2015, and he subsequently investigated plaintiff's use and registration of the mark. Harting Decl. ¶ 27. In addition, plaintiff alleges the USPTO rejected defendants' application to register the word mark "Beach Blonde Ale" on or about September 5, 2013, in light of plaintiff's existing mark registration, and CBC's registration identifies it as a resident of this district. Compl. ¶ 39; Goschke Decl. ¶¶ 6, 10. Defendants have not submitted any evidence suggesting it was not foreseeable that harm would be suffered in California.

The court finds plaintiff has established purposeful direction under the Calder test.

2. The "But For" Test

The second prong of the test for specific personal jurisdiction focuses on the connection between the defendant's acts and the harm those acts caused. It requires the plaintiff to show the claim would not have arisen but for the defendant's contacts with the forum state. Ballard, 65 F.3d at 1500. Other decisions have articulated the test as requiring a "direct nexus" between the defendant's contacts with the forum and the cause of action. Fireman's Fund Ins. Co. v. Nat'l Bank of Coops., 103 F.3d 888, 894 (9th Cir. 1996).

Despite its apparently strict language, many district courts in the Ninth Circuit have not applied the "but for" test stringently. See, e.g., Planned Parenthood v. Am. Coalition of Life Activists, 945 F. Supp. 1355, 1368 (D. Or. 1996) ("The 'but for' test should not be narrowly applied; rather, the requirement is merely designed to confirm that there is some nexus between the cause of action and defendant's contact with the forum." (citing Shute v. Carnival Cruise Lines, 897 F.2d 377, 385 (9th Cir. 1990), reversed on other grounds, 499 U.S. 585 (1991))).

Whether a stricter or more lenient interpretation of Ballard's "but for" test is appropriate, defendants' alleged contacts satisfy both versions. As stated above, this action arises from defendants' alleged individualized targeting of plaintiff and use of plaintiff's mark in advertising, marketing, and sales reaching California consumers. Plaintiff's injury would not have occurred but for defendants' contacts with California, where plaintiff's principal place of business is located, Compl. ¶ 11. See Rio Props., Inc. v. Rio Int'l Interlink, 284 F.3d 1007, 1021 (9th Cir. 2002). Defendants' motion addresses only purposeful direction, the first prong of the specific jurisdiction test, effectively conceding the second. The court finds the second prong is satisfied.

3. Reasonableness

Because plaintiff has established defendants' contacts were purposefully directed at California and caused the alleged injuries, the burden shifts to defendants to present a "compelling case" of the unreasonableness of personal jurisdiction over it. See Schwarzenegger, 374 F.3d at 802 (quoting Burger King, 471 U.S. at 476-48). In assessing the overall reasonableness and fairness of exercising personal jurisdiction, the court considers, among other things,

(1) the extent of a defendant's purposeful interjection; (2) the burden on the defendant in defending in the forum; (3) the extent of conflict with the sovereignty of the defendant's state; (4) the forum state's interest in adjudicating the dispute; (5) the most efficient judicial resolution of the controversy; (6) the importance of the forum to the plaintiff's interest in convenient and effective relief; and (7) the existence of an alternative forum.

Here, as well, defendants' motion does not address the reasonableness prong. Accordingly, defendants have not met their burden of presenting a "compelling case" of the unreasonableness of this court's exercising personal jurisdiction over them.

Plaintiff has made a sufficient showing of jurisdictional facts to withstand defendants' motion to dismiss. Defendants' motion to dismiss is DENIED.

B. Venue

A district court may dismiss or transfer a case "to any district or division in which it could have been brought" if venue is "wrong." 28 U.S.C. § 1406(a). Venue over trademark and UCL claims is governed by the general venue statute. See Adobe, 125 F. Supp. 3d at 959. The general venue statute provides in relevant part, "A civil action may be brought in . . . a judicial district in which any defendant resides, if all defendants are residents of the State in which the district is located." 28 U.S.C. § 1391(b)(1). Section 1391 also provides that "an entity with the capacity to sue and be sued in its common name under applicable law . . . shall be deemed to reside . . . in any judicial district in which such defendant is subject to the court's personal jurisdiction with respect to the civil action in question . . . ." Id. § 1391(c). Here, the court has found defendants are subject to the court's personal jurisdiction with respect to this action, so defendants are both deemed to "reside" in this district. See id. Accordingly, venue in this district is proper under § 1391(b)(1).

Moreover, § 1391 also allows a civil action to be brought in "a judicial district in which a substantial part of the events or omissions giving rise to the claim occurred . . . ." 28 U.S.C. § 1391(b)(2). In trademark cases, infringement takes place in any district in which consumers are likely to be confused by the challenged goods. See E & J Gallo Winery v. Grenade Beverage LLC, No. 1:13-00770, 2013 WL 6048140, at *4 (E.D. Cal. Nov. 14, 2013); see also Cottman Transmission Sys., Inc. v. Martino, 36 F.3d 291, 295 (3d Cir. 1994). Here, the complaint alleges a likelihood of consumer confusion in this district, where plaintiff is based, as a result of defendants' sales, marketing, and advertising to California consumers. The court finds plaintiff has sufficiently alleged a substantial part of the events giving rise to the claim occurred in this district. Because venue is proper in this district under both 28 U.S.C. §§ 1391(b)(1) and (b)(2), the court DENIES defendants' motion to dismiss the case under 28 U.S.C. § 1406(a).

C. Transfer

Alternatively, defendant moves to transfer venue under 28 U.S.C. § 1404. When the district court finds venue is proper, it may still exercise discretion, "[f]or the convenience of parties and witnesses, [and] in the interest of justice," to transfer an action "to any other district where it might have been brought." 28 U.S.C. § 1404(a). The Ninth Circuit has set out the following non-exclusive list of factors to consider in adjudicating a motion to transfer: "(1) the location where the relevant agreements were negotiated and executed, (2) the state that is most familiar with the governing law, (3) the plaintiff's choice of forum, (4) the respective parties' contacts with the forum, (5) the contacts relating to the plaintiff's cause of action in the chosen forum, (6) the differences in the costs of litigation in the two forums, (7) the availability of compulsory process to compel attendance of unwilling non-party witnesses, . . . (8) the ease of access to sources of proof," (9) "the presence of a forum selection clause," if any, and (10) "the relevant public policy of the forum state," if any. Jones v. GNC Franchising, Inc., 211 F.3d 495, 498-99 (9th Cir. 2000). The Ninth Circuit requires the defendant to make a "strong showing" of inconvenience to overcome the preference traditionally accorded a plaintiff's choice of forum. Decker Coal Co. v. Commonwealth Edison Co., 805 F.2d 834, 843 (9th Cir. 1986).

Here, defendants' motion does not address the Jones factors or provide any reasons explaining why transfer to the Middle District of Florida would be more convenient or in the interests of justice. See ECF No. 10-1 at 4 n.1. Accordingly, defendants have not met their burden of showing transfer is appropriate. See Decker Coal, 805 F.2d at 843. Defendants' motion to transfer venue under 28 U.S.C. § 1404(a) is DENIED.

IV. CONCLUSION

For the foregoing reasons, defendants' motion to dismiss or to transfer venue is DENIED.

IT IS SO ORDERED. DATED: April 18, 2016.

/s/_________

UNITED STATES DISTRICT JUDGE