UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF WISCONSIN

MARK K. ABRAMOFF, JAMES D.
STRATTE, BLAINE R. HEILMAN
d/b/a RALPH MARLIN & COMPANY,
and RALPH MARLIN & CO., INC.,
a Wisconsin corporation,

Plaintiffs,

 JOHNNY WANG, PHILLIP YANG
d/b/a NATURE WEAR, VISCOUNT
U.S.A. , INC. , and 51 SALES TEAM,
a California corporation, and
GARY D. WHITMAN and SPORTS TIES
UNLIMITED, an Arizona corporation,

Defendants.

ORDER

Fishy, fishy in the brook,

Daddy catch him on a hook,

Mommy fry him in a pan,

Baby eat him like a man.

(Mother Goose)

Holy mackerel, what a case! Perhaps the nursery rhyme should be changed. Daddy could just cut Mommy and Baby out of the action and wear the Fish around his neck--like a tie. Hey, that's a great idea! But why use a real fish? He could use a fake one--cut right out of pure polyester--and make it into a "designer" necktie. And he wouldn't have to use just one kind of fish, he could use tuna, trout, muskies, walleyes, northerns, and, for the macho types, barracudas. And he could start a company with a fishy sounding name (how does Ralph "Marlin" sound?) to market them around the country.

Well, it probably didn't really happen quite that way, but the Ralph Marlin Company of Wauwatosa, Wisconsin sells neckties that look like fish. Its designs have been copyrighted. Recently, Marlin filed suit in this court, claiming that two groups--one in California and one in Arizona--are violating its copyrights and other federal and state laws by selling ties that look like its fish tie products. The claims against the California defendants, I have been told, are settled. Those against the Arizona defendants, Sports Ties Unlimited and its president, Gary D. Whitman, remain.

Before I accept this case hook, line and sinker, Sports Ties and Whitman claim that this court cannot exercise jurisdiction over them. They have moved to dismiss, pursuant to Rule 12(b)(2) and (3) of the Federal Rules of Civil Procedure. Ralph Marlin claims that the defendants have nothing to carp about over jurisdiction and that an injunction stopping the marketing of infringing ties should be issued.

According to unrefuted affidavits, Sports Ties, an Arizona corporation, has never maintained offices, bank accounts, telephone listings, or properly interests in Wisconsin. It has never been licensed to transact business in Wisconsin. As to Whitman, he has never physically been in Wisconsin, and he has held no bank accounts, ownership in property, or had any telephone listings here. But Hr. Whitman is sued in his orificial capacity as an agent of Sports Ties; thus, they must sink or swim together.

Sports Ties says that it has sent only nine ties into Wisconsin, six as free samples and three to Wisconsin purchasers after money was received in Arizona. 1 But it has placed advertisements in nationally circulated magazines and a Wisconsin magazine, the Badger Sportsman.

The plaintiffs contend that these contacts--the sales and the advertising--slim though they be, bring the defendants under Wisconsin's long-arm statute, Wis. Stat. § 801.05. ! agree that they do. The defendants have satisfied the "solicitation" prong of § 801.05(4)(a), and thus it may be presumed that the due process requirements of International Shoe Co. v. Washington, 326 U.S. 310 (1985) are met. See Madison Consulting Group v. State of South Carolina, 752 F.2d 1193 (7th Cir. 1985). Although the presumption may be rebutted by an assessment of the contacts, I find that it is not. The national advertising and particularly the Badger Sportsman ad convince me that jurisdiction here is proper.

The Wisconsin magazine ad is reprinted here:

Clearly, the ad is a solicitation to Wisconsinites to do business with the Arizona defendants. If the defendants "knowingly" caused the ad to appear in a Wisconsin publication, and there may be some question about that as the defendants seem to hint that it may be fishy (i.e., phoney), they can be forced to defend this suit here. See Hall's Specialties, Inc. v. Schupbach, 758 F.2d 214 (7th Cir. 1985), regarding solicitation advertisements of this sort.

If the ad does, in fact, turn out not to have been knowingly placed by the defendants, I will reconsider my finding. The defendants may, within a reasonable time, ask me to take another look at their jurisdictional motion if they have new evidence to offer on the question of the authenticity of the ad. At this point, however, they must fish or cut bait here in Wisconsin.

Which brings me to the motion for a preliminary injunction. I would like to hear oral arguments on the point, and accordingly they are set for September 23, 1987 at 8:30 a.m.

Therefore, the motion to dismiss on jurisdictional grounds is, at this time, DENIED. Further proceedings on the injunction request will be conducted.

SO ORDERED at Milwaukee, Wisconsin this 14th day of September, 1987.

BY THE COURT:

TERENCE T. EVANS

UNITED STATES DISTRICT JUDGE