Opinion
00 Civ. 5927 (LAK).
January 22, 2001.
ORDER
Plaintiff alleges that defendant Fugazy Executive Travel, Inc. ("FET") is a licensee of its right to use the mark "FUGAZY," that it has not complied with the license agreement, and that its used of the mark therefore has violated the Lanham Act. Defendants have moved to dismiss the action for improper venue and, in the case of the individual defendants, lack of personal jurisdiction or, alternatively, to transfer the action to the District of Massachusetts where defendants reside and do business. Plaintiff has cross-moved for partial summary judgment. In all of the circumstances, the Court finds it necessary to address only the venue issue.
FET is a Massachusetts corporation with its principal place of business in Boston and an office in Illinois. It is engaged in the travel agency business, but it has no offices and does no advertising in New York. Among its customers are four who, since becoming customers, have added branch offices in New York, and FET meets the travel needs of New York employees of those customers. These New York clients, however, account for less than one percent of its gross sales. Moreover, these New Yorkers arrange their travel by contacting a travel agent outside New York who arranges to have itineraries and tickets printed on a remote printer in New York. Not surprisingly in these circumstances, FET does not target New York customers for sales and does not engaging in marketing or promotion here. The individual defendants, it might be noted, are Massachusetts residents.
Venue is governed by Section 1391 of the Judicial Code which, insofar as it is relevant here, permits venue to be laid in this Court only if this is "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).
As the parties recognize, this Court previously has held that § 1391(b) is to be read disjunctively. I.M.D. USA, Inc. v. Shalit, 92 F. Supp.2d 315 (S.D.N.Y. 2000). In any case, §§ 1391(b)(1) and (b)(3) do not apply because plaintiff has failed to make out a colorable case that (i) any of the defendants resides or (ii) FET is subject to personal jurisdiction here.
In trademark infringement cases, the focus of the venue inquiry is on the identification of districts in which the consumer deception occurred. See, e.g., Cottman Transmission Systems, Inc. v. Martino, 36 F.3d 291, 295-96 (3d Cir. 1994). Moreover, Section 1391(b)(2) contemplates the possibility that substantial parts of the events or omissions giving rise to a claim may occur in a number of districts. E.g., Bates v. C S Adjusters, Inc., 980 F.2d 865, 867 (2d Cir. 1992); Sanuk Enterprises v. Grand Circle Corp., No. 00 Civ. 3046 (LAK), 2000 WL 559238, at *1 (S.D.N Y May 9, 2000); Karriem v. American Kennel Club, 949 F. Supp. 220, 221 (S.D.N.Y. 1996). This in turn implies that venue in trademark infringement cases often may be laid in a broad range of districts, as infringing material often is broadly disseminated. See, e.g., Sanuk, 2000 WL 559238, at *1. But that is not necessarily to say that a trademark infringement case may be brought in any district in which allegedly infringing material was found. Venue, after all, serves basic interests of fairness. Where, as here, the defendants did nothing to target consumers in New York, and where indeed its only customers were employees of New York branches opened by four clients of defendants whose relationships with them antedated the opening of their New York branches, the Court is not satisfied that a substantial part of the acts or omissions giving rise to plaintiff's claim occurred here. The fact that FET operates an Internet web site that may be accessed from New York does not alone warrant any different conclusion, at least in circumstances in which there has been no targeting of business in New York. See, e.g., Medquist MRC, Inc. v. Dayani, 191 F.R.D. 125, 127 (N.D.Ohio. 1999).
Section 1406(a) of the Judicial Code, 28 U.S.C. § 1406(a), provides in substance that a court that concludes that venue is improperly laid in its district, "if it be in the interest of justice," may transfer the case to another district "in which it could have been brought." This case plainly could have been brought in the District of Massachusetts, as all defendants reside in Massachusetts (§ 1391(b)(1)), a substantial part of the acts or omissions giving rise to the claim occurred there (§ 1391(b)(2)), and all defendants are subject to personal jurisdiction there. A transfer would be in the interest of justice because it would avoid the need for refiling in consequence of a dismissal for improper venue. Accordingly, defendants' motion to dismiss or transfer this case is granted to the extent that the action is transferred to the District of Massachusetts and otherwise denied as moot in view of the fact that the individual defendants are subject to personal jurisdiction there. The Court does not rule on plaintiff's cross-motion for partial summary judgment, which is addressed more appropriately by the transferee court.
SO ORDERED.