judgment or decree," and I neither have found, nor been cited to, any authority for ordering destruction of any infringing goods in connection with a preliminary injunction. With respect to the more temporizing remedies of recall and impounding, I acknowledge that another district court in this Circuit has recently ordered entry of a preliminary injunction requiring the recall of infringing goods. See Home Shopping Club, Inc. v. Charles of the Ritz Group, Inc., 92- CIV-8173 (CSH), 1993 U.S. Dist. LEXIS 8311, available at 1993 WESTLAW 228853 (S.D.N.Y. June 18, 1993). The record before me does not inform as to the amount of infringing goods in the marketplace or the cost of their recall, or the number of outlets to which they were shipped. Because "it is impossible to properly balance the competing hardships caused by the granting or denial of a recall order[,]" Bausch & Lomb, Inc. v. Nevitt Sales Corp., 810 F. Supp. 466, 478 (W.D.N.Y. 1993), citation omitted, I am unable to grant such a remedy at this time. I find, however, that the record warrants requiring defendant to provide notice to both its customers and to the consuming public that (i) its cameras are not Kodak products and that Kodak makes neither representations nor warranties with respect thereto and (ii) the expiration dates shown on the Value Packs may or may not be identical to those placed on the film originally by Kodak and that such alteration of the expiration dates may result in consumers' using outdated film.
A written announcement of the existence of this litigation and of the sum and substance of the notice in conformance with this decision shall be published and displayed in any outlet to which defendant shipped either Kodak film or Snap Shots on or after February 10, 1993. The parties are to confer and cooperate concerning the form and content of such notices and are to submit to the Court proposed drafts thereof within 5 business days of the date of this order. In addition to such posting, publication of the notices shall be made in the New York Times and in the next regularly scheduled Filmart catalog. All notice costs are to be borne by the defendant.
F. Defendant's Motion to Transfer
Photaz states that it does not "reside" in the Western District for purposes of venue, which would make venue here improper under 28 U.S.C. § 1391(b). Nevertheless, its motion to transfer venue is premised on 28 U.S.C. § 1404 ("for the convenience of parties and witnesses, in the interest of justice"). Photaz argues that its only ties to this district are the sales of its products made to Kodak employees in connection with this action. It also argues that both parties do significant business in the Southern District, and that that district would be equally convenient to both parties. (Photaz's offices are located in the Eastern District.)
28 U.S.C. § 1391(b) provides that venue of a civil action "wherein jurisdiction is not founded solely on diversity of citizenship" is proper "only in (1) a judicial district where any defendant resides, . . . (2) a judicial district in which a substantial part of the events or omissions giving rise to the claim occurred, . . . or (3) a judicial district in which any defendant may be found, if there is no district in which the action may otherwise be brought."
Section 1391(c) provides that, for purposes of venue, a corporation resides "in any district [within a State] within which its contacts would be sufficient to subject it to personal jurisdiction if that district were a separate State. . . ."
Photaz is a mail and phone order business; while the bulk of its business may be in the Metropolitan area, it sends its catalogs into the Western District and has filled orders in the Western District. This activity is sufficient to establish venue in this district and I do not find Photaz's arguments about the convenience of transfer to the Southern District sufficiently compelling to overcome the presumption in favor of a plaintiff's choice of venue. Accordingly, the motion for transfer is denied.
WHEREFORE, plaintiff's motion for a preliminary injunction is granted and defendant's cross-motion for transfer of the case is denied. Accordingly, defendant is enjoined from (i) using or imitating Kodak's trademarks and/or trade dress, (ii) selling Kodak film, whether packaged as film or sold as a camera component, on which the expiration date listed differs from the expiration date placed by Kodak on the original package of such film, (iii) selling or shipping, directly or indirectly, any goods in its custody or control which infringe Kodak's trademark, trade dress, or copyrighted camera instructions; the parties shall submit to the Court within 5 business days draft notices consistent with this decision.
MICHAEL A. TELESCA
United States District Judge
DATED: Rochester, New York
August 4, 1993