The opinion of the court was delivered by: Richard Conway Casey, United States District Judge
Plaintiff Panacea Solutions, Inc. ("Panacea" or "Plaintiff") brought this action for trademark infringement in November 2005 against defendants Marcel Roll ("Roll"), Connectors Verbindungstechnik AG ("Connectors AG"), and Wave Biotech AG ("Wave AG") (collectively, "Defendants"). After Panacea filed the complaint, Defendants moved to dismiss the action for a lack of personal jurisdiction, see Fed. R. Civ. Pro. 12(b)(2), or, in the alternative, on the ground of forum non conveniens.
For the following reasons, Defendants' motion to dismiss for lack of personal jurisdiction is GRANTED.
Discovery has not yet occurred in this case. However, in addition to the memoranda of law submitted by the parties regarding the instant motions, Defendants have provided two declarations of Defendant Roll and a declaration from the attorney representing Defendants in proceedings brought by Panacea in Switzerland. And Plaintiff has submitted an affidavit of its Chief Executive Officer, Vijay Singh, in opposition to the motion to dismiss (the "Singh affidavit").
Panacea alleges the following. Panacea is a Delaware corporation with its principal place of business in Bernardsville, New Jersey. Defendant Roll is a citizen of Switzerland. He is the Chief Executive Officer of Wave AG. (Roll Decl. 1.) Defendants Connectors AG and Wave AG are both Swiss corporations with their principal places of business in Tagelswangen, Switzerland. (Compl. ¶¶ 4-7.)
Panacea asserts that its Chief Executive Officer Vijay Singh is the inventor of the Singh Bioreactor, a method and device for culturing cells. The invention consists of a specialized disposable plastic bag that can be filled with cells and liquid and then agitated in a gentle rocking mechanism to produce cell suspension, bulk mixing, and oxygen transfer. Panacea owns and uses numerous trademarks that identify the Singh Bioreactor and related products, including the trademarks WAVE BIOTECH, WAVEBAG, WAVE BIOREACTOR, and BIOWAVE. These trademarks are registered with the U.S. Patent and Trademark Office. (Compl. ¶¶ 2, 13, 15, 17.)
The Singh affidavit explains that Singh and Roll previously had a business relationship by which they entered into an agreement to distribute the Singh bioreactor. (Singh Aff. 4.) Singh asserts that Roll came to New York in 1998 to negotiate the agreement, and returned in April 1999 and March 2000 to discuss the joint business venture while attending a trade show. Id. In 2003, the relationship between Singh and Roll and their respective companies deteriorated. Id. at 5.
According to the complaint, although Panacea never authorized Defendants to use any of its trademarks in the United States, Defendants have recently begun using Panacea's trademarks to advertise, offer for sale, and sell bioreactors in the United States. Specifically, Panacea alleges that Defendants placed an infringing advertisement for bioreactors in the August 2005 edition of Genetic Engineering News, a journal described by Plaintiff as "a publication available in the United States (including without limitation in New York, New York)." (Compl. ¶ 20.)
Panacea alleges also that Defendants have begun using the websites www.wavebiotech.net and www.wavebag.com to market bioreactors to customers "in the United States (including without limitation [customers] in New York, New York)." (Id.) The websites contain an online form through which an interested person may request product information. (Roll Decl. Ex. C.) According to the Plaintiff, marketing materials posted by Wave AG on Defendants' websites indicate that Wave AG's products, which allegedly use and infringe Panacea's trademarks, are distributed in "Europe, Asia, [and the] USA." (Pl.'s Mem. 3-4.)
A plaintiff opposing a motion to dismiss for lack of personal jurisdiction bears the burden of proving that the court has personal jurisdiction over the defendants. DiStefano v. Carozzi North America, Inc., 286 F.3d 81, 84 (2d Cir. 2001) (per curiam). The Court construes the complaint, affidavits, and other supporting materials in the light most favorable to the plaintiff, resolving doubts in the plaintiff's favor. Id.; Best Van Lines, Inc. v. Walker, No. 03cv6585, 2004 U.S. Dist. Lexis 7830, at *4 (S.D.N.Y. May 5, 2004). Prior to ...