The opinion of the court was delivered by: ROBERT L. CARTER
ROBERT L. CARTER, District Judge
Plaintiff, Imagineering, Inc., brings this action against defendants Van Klassens, Inc. and Robert Lukingbeal, alleging claims for patent infringement under 35 U.S.C. § 271, for unfair competition under 15 U.S.C. § 1125(a), and alleging pendent state claims for unfair competition and dilution. Defendants have moved, under Rules 12(b)(2) and 12(b)(3), F.R.Civ.P., to dismiss this action for lack of personal jurisdiction and improper venue, or alternately to transfer this action, under 28 U.S.C. § 1404(a), to the Eastern District of Tennessee.
Plaintiff is engaged in the manufacture, advertising and sale of garden furniture under the trade name "Weatherend." Plaintiff also possesses a patent, Patent No. 313,320, for a particular rocking chair. Defendant Van Klassens, Inc. also sells a line of garden furniture, including rocking chairs ("rockers"), that resembles that manufactured by plaintiff. Defendant Lukingbeal is the president of Van Klassens. From 1987 to 1991 a series of communications occurred between plaintiff and defendants, in which plaintiff alleged that a number of pieces of defendants' furniture were imitations of those manufactured by plaintiff and that defendants' sale of such furniture violated unfair competition laws and infringed on plaintiff's rocking chair patent. In November, 1991, defendant Van Klassens filed a declaratory judgment action in the Eastern District of Tennessee (the "Tennessee action"), to disprove plaintiff's allegations. Plaintiff subsequently began this action.
Plaintiff bears the burden of establishing that the court possesses personal jurisdiction over defendants. See Cutco Indus., Inc. v. Naughton, 806 F.2d 361, 365 (2d Cir. 1986); Volkswagen de Mexico, S.A. v. Germanischer Lloyd, 768 F. Supp. 1023, 1027 (S.D.N.Y. 1991) (Cedarbaum, J.). In a case arising under a federal law which does not provide for service of process on a party not an inhabitant of or found within the forum state, federal courts must defer to the forum state's long arm statutes to determine the issue of personal jurisdiction. See Omni Capital Int'l v. Rudolf Wolff & Co., Ltd., 484 U.S. 97, 108 S. Ct. 404, 98 L. Ed. 2d 415 (1987). Therefore New York's long arm statute controls defendants' amenability to suit in this district.
The New York long arm statute, N.Y. CPLR § 302(a)(2) (McKinney 1990), provides:
As to a cause of action arising from any of the acts enumerated in this section, a court may exercise personal jurisdiction over any non-domiciliary . . . who in person or through an agent:
2. commits a tortious act within the state . . .;
The statute requires that the cause of action arise from the acts that constitute the basis for personal jurisdiction. See N.Y. CPLR § 302(a) (McKinney 1990); Business Trends Analysts v. Freedonia Group, Inc., 650 F. Supp. 1452, 1456 (S.D.N.Y. 1987) (Weinfeld, J.). For each of plaintiff's claims in the present case, the cause of action is deemed to arise where the allegedly infringing sales were made. See Farberware Inc. v. Alternative Pioneering Sys., Inc., 1991 U.S. Dist. LEXIS 11666, 19 U.S.P.Q.2d (BNA) 1079 (S.D.N.Y. 1991) (Conboy, J.) (patent infringement); Business Trends, supra, 650 F. Supp. at 1455-56 (S.D.N.Y. 1987) (unfair competition and dilution). Therefore personal jurisdiction will depend on the existence of sales of the allegedly infringing products in New York.
With respect to plaintiff's patent infringement claim, defendants contend that their sales of the infringing products in New York are too negligible to be the basis for personal jurisdiction, relying on their sale of only two rockers in the past five years in New York. While this only constitutes 2 per cent of defendants' total rocker sales, it has consistently been held that section 302(a)(2) "requires no specified level of activity within the State, but only that plaintiff suffer some damage as a result of a tortious act committed . . . in New York." Honda Assocs., Inc. v. Nozawa Trading, Inc., 374 F. Supp. 886, 889 (S.D.N.Y. 1974) (Conner, J.); accord Sun Hill Indus. Inc. v. Holiday Trims Inc., 1991 U.S. Dist. LEXIS 15462, 20 U.S.P.Q.2d (BNA) 1851, 1855 (E.D.N.Y. 1991); Business Trends, supra, 650 F. Supp. at 1455-56; Factors Etc., Inc. v. Pro Arts, Inc., 444 F. Supp. 288, 291 (S.D.N.Y. 1977) (Tenney, J.), aff'd 579 F.2d 215 (2d Cir. 1978), cert. denied, 440 U.S. 908, 59 L. Ed. 2d 455, 99 S. Ct. 1215 (1979). Hence personal jurisdiction may be established over a defendant when New York sales constitute only a small percentage of the ...