The opinion of the court was delivered by: CHARLES RONALD NORGLE, SR.
HONORABLE CHARLES R. NORGLE
Before the court is defendants' motion to dismiss for lack of personal jurisdiction and improper venue, or in the alternative, to transfer. For the following reasons, defendants' motion to dismiss is denied and the motion to transfer is granted.
Plaintiff, Habitat Wallpaper and Blinds, Inc. ("Habitat"), is a Michigan corporation that owns and operates home fashion retail outlets throughout Illinois. Defendant K.T. Scott Limited Partnership ("K.T. Scott") is involved in the retail sale of home decorating goods and services in Massachusetts. Habitat claims that K.T. Scott offers goods and services identical to those offered by Habitat in retail outlets having the same distinctive decorative and architectural themes as those found in Habitat's outlets. Furthermore, Habitat alleges that K.T. Scott promoted its goods and services with a brochure that incorporated many features copied directly from Habitat's brochure. Based on defendant K.T. Scott's decoration of its stores and the design and content of its brochures, Habitat has asserted claims against the defendants under federal trademark laws and the state laws
for alleged trademark and trade dress infringement and unfair business practice.
The defendants have filed a motion to dismiss the present cause of action for lack of personal jurisdiction over any of the defendants. As plaintiff, Habitat bears the burden of proving sufficient facts to establish personal jurisdiction. Grafon Corp. v. Hausermann, 602 F.2d 781, 783 (7th Cir. 1979); United States Ry. Equip. Co. v. Port Huron & Detroit R.R. Co., 495 F.2d 1127, 1128 (7th Cir. 1974). The jurisdictional allegations in the complaint are taken as true, unless controverted by defendants' affidavits, and any conflicts between affidavits are normally resolved in the plaintiff's favor. Turnock v. Cope, 816 F.2d 332, 333 (7th Cir. 1987).
Unless authorized by a federal statute or a federal rule of civil procedure, this court has personal jurisdiction over nonresident defendants only if an Illinois court would have jurisdiction over such defendants. FMC Corp. v. Varonos, 892 F.2d 1308, 1310 (7th Cir. 1990). To conclude that Illinois has personal jurisdiction, the court must affirmatively answer the following questions: (1) do the facts as alleged bring the defendants within the reach of Illinois' long-arm statute, and (2) is the court's exercise of personal jurisdiction over the defendants consonant with due process? The Illinois long-arm statute provides in relevant part:
(a) Any person, whether or nor a citizen or resident of this state, who in person o through an agent does any of the acts hereinafter enumerated, thereby submits such person, . . . to the jurisdiction of the courts of this state as to any cause of action arising from the doing of any such acts: . . .
(2) The commission of a tortious act within this state[.]
Ill. Rev. Stat. ch. 110, para. 2-209(a). Infringement of intellectual property rights sounds in tort. Leo Feist, Inc. v. Young, 138 F.2d 972, 975 (7th Cir. 1943); Burwood Prods. Co. v. Marsel Mirror & Glass Prods., Inc., 468 F. Supp. 1215, 1218 (N.D. Ill. 1979); see also Video Views, Inc. v. Studio 21, Ltd., 925 F.2d 1010, 1013 (7th Cir.) (dictum), cert. denied, 112 S. Ct. 181 (1991). In tort law, a key operative factor for determining the locus of the tort is the place where the plaintiff sustained its injury. World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286 (1980); Asahi Metal Ind. Co. v. Superior Court of Cal., 480 U.S. 102, 94 L. Ed. 2d 92, 107 S. Ct. 1026 (1987); Gray v. American Radiator & Standard Sanitary Corp., 22 Ill. 2d 432, 176 N.E.2d 761 (1961). As another court in this district has observed, "damage to intellectual property rights . . . by definition takes place where the [property] owner suffers the damage." Acrison, Inc. v. Control & Metering, Ltd., F. Supp. 1445, 1448 (N.D. Ill. 1990) (Shadur, J.) (emphasis in original) (court did not have personal jurisdiction over a non-resident defendant because the plaintiff, a non-Illinois corporation, did not transact business in Illinois and the tort thus occurred outside of Illinois).
Habitat is a Michigan corporation that operates several stores in this district; as such, Habitat will suffer injury in Illinois for any infringement of Habitat's intellectual property rights. Furthermore, Habitat has claimed that the defendants obtained Habitat's allegedly protected property by visiting its Illinois outlets and "spiriting" such property away.
Habitat has properly stated a claim for intellectual property infringement against the defendants, and since such infringement is considered a tort, the defendants fall within the ambit of § 2-209(a)(2).
The demands of due process are met when there are "minimum contacts" between the forum and the defendants so that "maintenance of the suit [in such forum] does not offend traditional notions of fair play and substantial justice." International Shoe Co. v. Washington, 326 U.S. 310, 316 (1945). Due process is satisfied when "[a] defendant's conduct and connection with the forum state are such that he should reasonably anticipate being haled into court there." World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297, 62 L. Ed. 2d 490, 100 S. Ct. 559 (1980).
Habitat's asserted cause of action against the defendants arises out of their tortious conduct in violating Habitat's intellectual property rights. The defendants allegedly copied Habitat's intellectual property in Illinois, and allegedly having obtained such protected property of a company transacting business in Illinois, the defendants would be aware that any infringement upon Habitat's intellectual property would register an injury in Illinois. As such, the defendants cannot be heard to complain that they could not reasonably anticipate being haled into an Illinois court to defend against a complaint by Habitat for intellectual property infringement. Consequently, the conduct that forms the basis of Habitat's complaint provides the necessary "minimum contacts" with Illinois. See Rose v. Franchetti, Nos. 89-2765 and 90-1371 (7th Cir. October 21, 1992) (defendant's knowledge of customer's residence in Illinois, knowledge that item sold would be delivered to ...