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UNITED STATES GOLF ASSN. v. U.S. AMATEUR GOLF ASSN

August 5, 1988

UNITED STATES GOLF ASSOCIATION, Plaintiff,
v.
U.S. AMATEUR GOLF ASSOCIATION, Defendant.



The opinion of the court was delivered by: POLITAN

 NICHOLAS H. POLITAN, UNITED STATES DISTRICT JUDGE.

 Before the Court is plaintiff's motion seeking preliminary injunctive relief in order to protect itself against what plaintiff perceives to be irreparable injury, and to protect the golfing public against the confusion and deception that plaintiff asserts defendant has created and threatens to perpetuate. Also before the Court is defendant's motion to dismiss for lack of in personam jurisdiction or, in the alternative, transfer this action on the basis of improper venue. In disposing of the parties' motions, it becomes necessary to address only the issue of whether venue is proper in the District of New Jersey for the action brought by plaintiff.

 Plaintiff, United States Golf Association, also known as the USGA, is the governing body of amateur golf in the United States, providing a variety of services to and for amateur golfers. On April 29, 1988 plaintiff filed a Complaint in this Court against defendant pursuant to the Federal Trademark Act of 1946 (commonly known as the Lanham Act) for federal service mark infringement arising out of defendant's use of the trade name "U.S. Amateur Golf Association" and its abbreviation "USAGA". Defendant has been in business for several months and offers what it refers to as a service which is essentially a networking system for golfers. In an attempt to solicit business, defendant mailed from California over 1,400 promotional packages, consisting primarily of literature describing the services rendered by defendant. Of the 1,400 promotional packages, 22 were sent to parties in New Jersey. Defendant is neither a resident nor a corporation of New Jersey. Defendant is a resident of Los Angeles, California within the jurisdiction of the United States District Court for the Middle District of California. Defendant has conducted no business in New Jersey nor has any employee or other representative of the partnership entered New Jersey. The partnership owns no assets of any kind outside of Los Angeles, California. No business has been conducted as a result of the distribution of the 22 promotional packages to New Jersey.

 In measuring an application for a preliminary injunction, the Court must first determine if plaintiff has adequately set forth jurisdiction and venue when it is challenged. Plaintiff argues that prior to deciding whether plaintiff is properly in federal court, and/or in the correct district, that this Court must decide the motion for a preliminary injunction. The cases plaintiff cites for this proposition are not persuasive, nor has my research uncovered authority to support plaintiff's contention. In fact, the cases suggest the opposite result. Maybelline Co. v. Noxell Corp., 813 F.2d 901 (8th Cir. 1987); Noxell Corp. v. Firehouse No. 1 Bar-B-Que Rest., 245 U.S. App. D.C. 242, 760 F.2d 312 (1985); Dollar Sav. Bank v. First Sec. Bank of Utah, 746 F.2d 208 (3rd. Cir. 1984). In these cases, preliminary injunctions issued by District Courts were vacated by the Court of Appeals because the District Courts had erred in not first establishing whether or not venue was properly placed in the respective District Courts where the actions were initiated. As noted in Maybelline, ". . . an appeal from an order granting or refusing injunctive relief pursuant to 28 U.S.C. § 1292(a)(1) presents for appellate review 'the entire order, not merely the propriety of injunctive relief.' * * * Therefore, the district court's denial of the motion to dismiss for improper venue is properly before us." 813 F.2d 901, 903, footnote 1.

 This Court is satisfied that it has personal jurisdiction over defendant. "A federal district court may assert personal jurisdiction over a nonresident of the state in which the court sits to the extent authorized by the law of that state." Provident National Bank v. California Federal Savings & Loan Association, 819 F.2d 434, 436 (3rd Cir. 1987) (quoting Fed.R.Civ.P. 4(e)). New Jersey Court Rules R. 4:4-4(c)(1) provides for service "consistent with due process of law." The New Jersey long-arm statute is intended to confer jurisdiction to the fullest extent under the Constitution. See Avdel Corp. v. Mecure, 58 N.J. 264, 268, 277 A.2d 207 (1971). Therefore, the standards of the Fourteenth Amendment apply.

 Decades ago, the United States Supreme Court held that the exercise of personal jurisdiction comports with due process if the non-resident defendant has such contacts with the forum state "such that the maintenance of the suit does not offend 'traditional notions of fair play and substantial justice.'" International Shoe Co. v. Washington, 326 U.S. 310, 316, 90 L. Ed. 95, 66 S. Ct. 154 (1945). The Supreme Court has subsequently defined and redefined the prerequisites of in personam jurisdiction. In Hanson v. Denckla, 357 U.S. 235, 2 L. Ed. 2d 1283, 78 S. Ct. 1228 (1958), the Court explained the now familiar requirement of purposeful availment:

 
the unilateral activity of those who claim some relationship with a nonresident defendant cannot satisfy the requirement of contact with the forum State. The application of that rule will vary with the quality and nature of the defendant's activity, but it is essential in each case that there be some act by which the defendant purposefully avails itself of the privilege of conducting activities within the forum State, thus invoking the benefits and protections of its laws.

 Id. at 253. Nor is the fact that a defendant's acts may have effects within the forum state alone sufficient to confer jurisdiction. Rather, defendant must reasonably anticipate being summoned to respond in the forum court. World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297, 62 L. Ed. 2d 490, 100 S. Ct. 559 (1980). The Supreme Court recently had occasion to review the due process personal jurisdiction inquiry. In Burger King Corp. v. Rudzewicz, 471 U.S. 462, 471-72, 85 L. Ed. 2d 528, 105 S. Ct. 2174 (1985), the Court stated that: "the Due Process Clause protects an individual's liberty interest in not being subject to the binding judgments of a forum with which he has established no meaningful 'contacts, ties or relations.'" [Citations omitted.]

 The Third Circuit has further elaborated on the methods by which a plaintiff may demonstrate the factual basis giving rise to jurisdiction. Plaintiff must prove either that defendant's actions gave rise to the cause of action being sued upon (specific jurisdiction), or that defendants have 'continuous and systematic' contacts with the forum (general jurisdiction). Provident, supra at 437.

 The standard for specific in personam jurisdiction has been set out in the case of McGee v. International Life Insurance Co., 355 U.S. 220, 2 L. Ed. 2d 223, 78 S. Ct. 199 (1957). The Supreme Court held that California properly asserted jurisdiction over defendant, noting "it is sufficient for purposes of due process that the suit was based on a contract which had substantial connection with that State." Id. at 223. The Court observed that "with this increasing nationalization of commerce has come a great increase in the amount of business conducted by mail across state lines." Id. at 223. New Jersey courts have also found that direct mail solicitation has been held to confer personal jurisdiction "beyond doubt" over a non-resident defendant. Kugler v. Market Development Corp., 124 N.J. Super. 314, 318, 306 A.2d 489 (Ch. Div. 1973).

 It has been held that in cases involving trademark infringement, the wrong takes place where the "passing off" occurs. Vanity Fair Mills, Inc. v. T. Eaton Co., 234 F.2d 633, 639 (2d Cir. 1956), cert. denied 352 U.S. 871, 1 L. Ed. 2d 76, 77 S. Ct. 96, 111 U.S.P.Q. (BNA) 468 (1956); Hertz System, Inc. v. Hervis Corp., 549 F. Supp. 796 (S.D.N.Y. 1982); Scott Paper Company v. Scott's Liquid Gold, Inc., 374 F. Supp. 184 (D.Del. 1974). The Court in Scott analogized a trademark claim to libel cases and held that the trademark claim arises wherever injury from the infringing advertisement occurs. Id. at 190, footnote 6.

 Jurisdiction may also be conferred over non-residents in tort cases based upon a single deliberate contact with New Jersey where that contact resulted in the alleged injury. Starline Optical Corp. v. Caldwell, 598 F. Supp. 1023, 1025 (D.N.J. 1984); Blessing v. Prosser, 141 N.J. Super. 548, 359 A.2d 493 (App. Div. 1976); Beshada v. Johns-Manville Corp., 182 N.J. Super. 376, 440 A.2d 1372 (Law Div. 1981); Beckwith v. Bethlehem Steel Corp., 182 N.J. Super. 376, 440 A.2d 1372 (Law Div. 1981). This result is consistent with the Hanson v. Denckla, supra, decision adopted by the New Jersey courts, that a voluntary action which is calculated to have an effect in the forum state is sufficient to confer personal jurisdiction upon the defendant. Certisimo v. Heidelberg Company, 122 N.J. Super. 1, 8, 298 A.2d 298 (Law Div. 1972), affirmed 124 N.J. Super. 251, 306 A.2d 79 (App. Div. 1973).

 The Court concludes from the preceding analysis that defendant's deliberate attempt to enter, advertise and promote itself in New Jersey by direct mail solicitation is sufficient to confer specific personal jurisdiction over defendant. However, the Court finds, for ...


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