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Cavit Cantina Viticoltori Consorzio Cantine Sociali Del Trentino Societa' Cooperativa v. Browman Family Vineyards

September 28, 2009

CAVIT CANTINA VITICOLTORI CONSORZIO CANTINE SOCIALI DEL TRENTINO SOCIETA' COOPERATIVA (AN ITALIAN CORPORATION), PLAINTIFF,
v.
BROWMAN FAMILY VINEYARDS, INC. (A CALIFORNIA CORPORATION), DEFENDANT.



The opinion of the court was delivered by: Jed S. Rakoff, U.S.D.J.

MEMORANDUM

On March 10, 2009, plaintiff Cavit Cantina Viticoltori Consorzio Cantine Sociali del Trentino Societa' Cooperativa ("Cavit"), an Italian wine producer, brought this action against defendant Browman Family Vineyards, Inc. ("Browman"), a California wine producer, asserting federal-law claims for trademark infringement, unfair competition, and trademark dilution, as well as New York statutory and common-law claims. Cavit sells wine under the "Cavit" label, while Browman sells wine with the brand name "Cavus." On March 11, 2009, Browman filed an action in Northern District of California seeking a declaratory judgment of non-infringement (the "California Action").

On April 7, 2009, plaintiff filed a motion to enjoin the California Action. The following day, defendant cross moved for transfer to the Northern District of California on the ground of either improper venue or convenience, or, in the alternative, for dismissal on the ground of improper venue or lack of personal

jurisdiction. The Court received full briefing from the parties and heard oral argument on May 7, 2009. By Order dated May 14, 2009, the Court ruled that venue was improperly laid in the Southern District of New York, granted defendant's motion to transfer the case to the Northern District of California, and denied plaintiff's motion to enjoin the California Action. This Memorandum sets for the reasons for that decision.

According to the complaint, Cavit is an Italian cooperative that sells wines throughout the world under the "Cavit" name and has several registered "Cavit" trademarks. Compl. ¶¶ 2, 6-8. Cavit asserts that it sells millions of cases of "Cavit"-brand wines in the United States annually and that it sells wine in the Southern District of New York. Id. ¶¶ 11, 6. The complaint alleges that Browman began selling wines under the name "Cavus" as early as November 2007 and that "Cavus" wines are sold in the Southern District of New York. Id. ¶¶ 16-17. It is this last allegation, however, that defendant strenuously contests on its motion.

In connection with their cross-motions, the parties submitted numerous affidavits and other supporting materials which establish the following essentially uncontested facts.*fn1 Browman has two acres of vineyards in Napa Valley and began selling wine in 2008. Declaration of Darryl Browman dated April 7, 2009 ("First Browman Decl.") ¶¶ 2-3. At the time of filing this lawsuit, the company had produced only a few hundred cases of wine and, of those, had sold 178. See First Browman Decl. ¶ 3; Ex. 1 to Declaration of Jeffrey M Goehring dated April 22, 2009 ("Goehring Decl."); Second Declaration of Darryl Browman dated April 28, 2009 ("Second Browman Decl.") ¶ 2. Browman has never sold wine in or shipped wine to New York State, and it is not licensed to do so. First Browman Decl. ¶ 4. It has not advertised Cavus wine in New York State (except for the vineyard's web site, which is accessible from New York State but through which it is not possible to purchase wine), and it does not have any contractual relationship with any licensed wine distributors in New York State. Id. Browman sells its Cavus wine primarily through a retailer in St. Helena, California called Acme Fine Wines, and it primarily advertises its wine in California. Id. ¶ 3.

In May 2008, however, a representative from a wine distributor called Angel's Share Wines ("Angel's Share") visited the Browman vineyard in Napa Valley and purchased 10 cases of Cavus wine. Id. ¶ 5; Second Browman Decl. ¶ 6. Angel's Share is located in Brooklyn, in the Eastern District of New York. Declaration of Marc D. Taub dated April 20, 2009 ("Taub Decl.") ¶ 16. Browman advised Angel's Share that it could not ship wine to New York, and Angel's Share subsequently sent a common carrier to Browman's Napa Valley warehouse to pick up the wine. Second Browman Decl. ¶ 6. Browman did not have any direct knowledge of or control over the resale of the wine. Id.

Whether through Angel's Share or some other means, bottles of Cavus wine did make their way to New York State for resale. Specifically, the materials before the Court show that Cavus wine is available in three locations in New York State: 1) a retailer called Pop's Wines & Spirits in Island Park, New York -- in the Eastern District of New York -- lists Cavus on its website, see Ex. 2 to Goehring Decl.; 2) a retailer called Rochambeau Wines and Liquors in Dobbs Ferry, New York -- in the Southern District of New York -- lists Cavus on its website, see Ex. 3 to Goehring Decl.; and 3) a restaurant called Bryant & Cooper Steakhouse in Roslyn, NY -- in the Eastern District of New York -- features Cavus on its wine list, see Ex. 5 to Goehring Decl. In addition, a retailer called Pluckemin Inn Wine Shop in Bedminster, New Jersey lists Cavus on its website. See Ex. 4 to Goehring Decl.

An effort to purchase a bottle of 2004 Cavus wine through the website of Rochambeau Wines and Liquors, the only location in the Southern District in New York where Cavus appears to ...


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