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Mon Aimee Chocolat, Inc. v. Tushiya LLC

United States District Court, W.D. Pennsylvania

May 12, 2015

TUSHIYA LLC doing business as MON AME CHOCOLATE; RAMONA THOMAS, An individual, Defendants. ECF No. 15



Pending before the Court is Defendants’ Motion to Dismiss Plaintiff’s Complaint or in the Alternative to Transfer Plaintiff’s Action. (ECF No. 15). For the following reasons, the Motion to Dismiss is denied and the Motion to Transfer is granted. This action will be transferred to the United States District Court for the Northern District of Illinois.


In this diversity trademark infringement action, Plaintiff MON AIMEE CHOCOLAT (“Plaintiff” or MON AIMEE CHOCOLAT”) is a Pennsylvania corporation, with a principal place of business in the Strip District section of Pittsburgh. Plaintiff alleges that since 2001, it has used the MON AIMEE CHOCOLAT name to identify and market its goods and services and, since 2002, has sold various chocolates and other gourmet sweets through its website, MON AIMEE CHOCOLAT alleges that its customers, competitors and the general public have come to associate high quality chocolate and confectionary products sold by Plaintiff with the MON AIMEE CHOCOLAT mark.

Defendant Ramona Thomas (“Thomas”), an Illinois resident, formed Defendant Tushiya, LLC, an Illinois limited liability corporation, (“Tushiya”), on or about November 2, 2007. Thomas is Tushiya’s sole employee. Tushiya is a small, minority owned business in Chicago, Illinois. Tushiya began selling chocolates and confectionary goods under the name LUXE CHOCOLAT, using the website Subsequently, Defendants changed the name of its product line to MON ÂME CHOCOLAT, and on or about May 29, 2014, started using the website On June 2, 2014, Tushiya filed a federal trademark application for MON ÂME CHOCOLATE for use in marketing its products and for on-line ordering services.

Plaintiff alleges it became aware of Defendants’ competing use of the MON ÂME CHOCOLAT mark in June of 2014, and on June 24, 2014, filed its own federal trademark application seeking to formalize its use of the MON AIMEE CHOCOLAT mark. Plaintiff alleges that Defendants’ use of the mark for its products and as a domain name constitutes false designation of origin (Count I), cybersquatting (Count II), and common law infringement and unfair competition (Count III). Plaintiff claims that Defendants’ conduct has caused or will result in confusion among customers and the general public, and has been done for the purpose of defrauding and deceiving the public.

Defendants have filed a Motion to Dismiss Plaintiff’s Complaint or, alternatively, seek the transfer of this action to the United States District Court for the Northern District of Illinois, contending that this Court lacks personal jurisdiction over Defendants. (ECF No. 15). This Court entered an Order on February 23, 2015, permitting limited discovery related to the propriety of the exercise of personal jurisdiction over the Defendants. The parties have filed their briefs in support and in opposition to the Motion to Dismiss, and have sought and been granted leave to file certain exhibits containing proprietary information under seal. (ECF Nos. 16, 20, 22, 28, 30, 31, 32).


A. Rule 12(b)(2)

Federal Rule of Civil Procedure 12(b)(2) allows a party to seek dismissal of a complaint or any portion of a complaint for lack of personal jurisdiction over the defendant. In ruling on a Rule 12(b)(2) motion, “a court must accept the plaintiff’s allegations as true and draw in the plaintiff’s favor all reasonable inferences supported by the well-pleaded factual allegations.” Arrington v. Colortyme, Inc., 972 F.Supp.2d 733, 739 (W.D. Pa. 2013) (citing Carteret Sav. Bank, FA v. Shushan, 954 F.2d 141, 151 n. 1 (3d Cir. 1992)). However, the court need not limit the scope of its review to the pleadings and instead must consider affidavits and other competent evidence submitted by the parties. Patterson by Patterson v. F.B.I., 893 F.2d 595, 603–04 (3d Cir. 1990); Time Share Vacation Club v. Atl. Resorts, Ltd., 735 F.2d 61, 66 n. 9 (3d Cir. 1984).

In weighing the evidence, “[w]here the defendant has raised a jurisdictional defense, the plaintiff bears the burden of establishing either that the cause of action arose from the defendant’s forum-related activities (specific jurisdiction) or that the defendant has ‘continuous and systematic’ contacts with the forum state (general jurisdiction).” Hufnagel v. Ciamacco, 281 F.R.D. 238, 244 (W.D. Pa. 2012), quoting Mellon Bank (East) PSFS, N.A. v. DiVeronica Bros., Inc., 983 F.2d 551, 554 (3d Cir.1993); Miller Yacht Sales, Inc. v. Smith, 384 F.3d 93, 97 (3d Cir. 2004); Metcalfe v. Renaissance Marine Inc., 566 F.3d 324, 330 (3d Cir. 2009).

B. Motion to Transfer Venue

A motion to transfer venue is governed by 28 U.S.C. § 1404(a), when, as here, the action may be brought in both the original and the requested venue. Section 1404(a) provides: “For the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought.”

The United States Court of Appeals for the Third Circuit has held that the burden of establishing the need for transfer in Section 1404(a) motion rests with the movant, and, “in ruling on defendants’ motion, the plaintiff’s choice of venue should not be lightly disturbed.” Jumara v. State Farm Ins. Co., 55 F.3d 873, 879 (3d Cir. 1995). Courts have “broad discretion to determine, on an individualized, case-by-case basis, whether convenience and fairness ...

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