Balloon Bouquets, Inc. v. Balloon Telegram Delivery, Inc.

• Decision Date: 24 July 1984
• Citation: 18 Mass.App.Ct. 935,466 N.E.2d 523
• Parties: BALLOON BOUQUETS, INC. v. BALLOON TELEGRAM DELIVERY, INC.
• Court: Appeals Court of Massachusetts

Page 523

466 N.E.2d 523

18 Mass.App.Ct. 935

BALLOON BOUQUETS, INC. v. BALLOON TELEGRAM DELIVERY, INC.

Appeals Court of Massachusetts Middlesex.

Argued May 21, 1984.

Decided July 24, 1984.

Lawrence M. Green, Boston (Edward R. Schwartz, Wayland, with him), for plaintiff.

Before ARMSTRONG, KASS and WARNER, JJ.

RESCRIPT.

1. The plaintiff filed a complaint in the Superior Court in Middlesex County, alleging trademark infringement, trademark dilution, false designation of origin, trade disparagement, libel, and unfair competition. The defendant, a Louisiana corporation, filed a motion to dismiss for lack of personal jurisdiction. See Mass.R.Civ. P. 12(b)(2), 365 Mass. 755 (1974). On the basis of the verified complaint, affidavits and exhibits submitted by both parties, the motion was allowed and a judgment entered dismissing the action. The plaintiff appeals, arguing that the defendant's business contacts with Massachusetts are sufficient to confer personal jurisdiction under G.L. c. 223A, § 3(a ), as amended through St.1976, c. 435, and to satisfy due process. We agree with the plaintiff and reverse the judgment. ¹

2. "Facing a motion to dismiss under Mass.R.Civ. P. 12(b)(2), the plaintiff[ ] bear[s] the burden of establishing sufficient facts on which to predicate jurisdiction over the defendant." Good Hope Indus., Inc. v. Ryder Scott Co., 378 Mass. 1, 3, 389 N.E.2d 76 (1979). The following facts are established by the parties' pleadings, affidavits, and exhibits. The defendant compiles and distributes a national directory of balloon delivery companies. The directory lists the names and addresses of its subscribers, along with information about their services and prices. The defendant also acts as a clearinghouse for balloon delivery orders. For a fee, it forwards orders among the subscribers, and also forwards orders received directly from customers through a toll-free number listed in telephone directories. The defendant also provides public relations services for subscribers, and offers consulting services and legal assistance. Subscribers are encouraged to display the defendant's logo and emblem in their advertisements.

The defendant's direct contact with Massachusetts is as follows. It has solicited balloon delivery companies in the Commonwealth, and at least four companies have become subscribers. These companies are listed in the defendant's directory, and they receive a copy of it. The defendant collects fees from these subscribers for the directory listings and for delivery orders. It also lists a toll free number in the telephone directories for Boston and other Massachusetts cities and towns through which it accepts orders from customers for balloon deliveries and forwards them to its subscribers in Massachusetts and elsewhere. Finally, the defendant distributes several copies of its quarterly newsletter in Massachusetts. The newsletter informs balloon delivery dealers of recent developments in the trade. It has also been used by the defendant to raise doubts about the validity of the plaintiff's trademark and to solicit co-petitioners for a challenge to the trademark in the United States Patent and Trademark Office.

3. The Massachusetts long-arm statute, G.L. c. 223A, § 3, provides that "[a] court may exercise personal jurisdiction over a person who acts directly or by an agent, as to a cause of action in law or equity arising from the person's (a ) transacting any business in this Commonwealth ...." The statute authorizes the assertion of personal jurisdiction "to the limits allowed by the Constitution of the United States." "Automatic" Sprinkler Corp. of America v. Seneca Foods Corp., 361 Mass. 441, 443, 280 N.E.2d 423 (1972). The due process clause of the Fourteenth Amendment requires that the defendant have sufficient contacts with the forum State to assure that assertion of jurisdiction "does not offend 'traditional notions of fair play and substantial justice.' " International Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 158, 90 L.Ed. 95 (1945), quoting from Milliken v. Meyer, 311 U.S. 457, 463, 61 S.Ct. 339, 342, 85 L.Ed. 278 (1940). See World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 291-292, 100 S.Ct. 559, 564-565, 62 L.Ed.2d 490 (1980), and cases cited therein. "[T]he defendant's conduct and connection with the forum State [must be] such that he should reasonably anticipate being haled into court there." Id. at 297, 100 S.Ct. at 567.

The defendant notes that it does not have a license to do business in Massachusetts, owns no property in Massachusetts, has never personally used the plaintiff's trademark in Massachusetts, and has no employees, office, bank account or local phone listing in Massachusetts. Although some common manifestations of "transacting business" are not present, the record nevertheless belies the defendant's assertion that it conducts no "direct" business in the Commonwealth. The nature of defendant's business is such that it is conducted almost entirely through the mails and by telephone. "Widespread use of the telephone and the mails make[s] actual physical presence unnecessary in many cases." Good Hope Indus., Inc. v. Ryder Scott Co., supra 378 Mass. at 11, 389 N.E.2d 76, quoting from McGraw v. Matthaei, 340 F.Supp. 162, 164 (E.D.Mich.1972). Through these media, the defendant has entered into agreements with its Massachusetts subscribers, and has maintained an ongoing business relationship with them.

The defendant's activities go well beyond the mere solicitation of business. Cf. Walsh v. National Seating Co., 411 F.Supp. 564,...