Auburn University v. Moody et al (CONSENT)

Filing 16

ORDERED and ADJUDGED as follows: (1) Plaintiff Auburn University's 2 Motion for Preliminary Injunction is hereby GRANTED; (2) Defendants,Michael Moody and SIXFINGERYEAR.COM, and their officers, agents, servants, and employees, and all persons acting in conjunction with the defendants or at their direction, be and are, until further order of the court, RESTRAINED and ENJOINED from producing, manufacturing, marketing, distributing, selling or offering for sale, the unlicensed orange and blu e six finger foam hand novelty souvenirs bearing, or which have ever borne, the AUBURN and WAR EAGLE marks as well as any other foam hand novelty product that contains any of Auburns marks including AUBURN, WAR EAGLE, AUBURN UNIVERSITY, and AUBURN TI GERS; (3) that the defendants shall immediately remove all items and images of items from the SIXFINGERYEAR.COM website shopping cart that presently have affixed or have ever had affixed to it any of the Auburn marks; (4) That the defendants shall on or before November 6, 2008, DELIVER to Auburn for safekeeping (1) their entire inventory of unlicensed orange and blue six finger foam hand novelty souvenirs bearing, or which have ever borne, the AUBURN and WAR EAGLE marks as further set out and (2 ) any and all advertising and promotional materials, signs, business cards or other material which contain the Auburn marks; (5) That defendant Michael Moody shall cause to be PUBLISHED a corrective statement on the website SIXFINGERYEAR.COM as furth er set out; and (6) that plaintiff shall post a bond in the amount of $5,000 with the Clerk of Court by no later than close of business on Monday, November 3, 2008. The Clerk of the Court is DIRECTED to issue a writ of injunction and the United States Marshal shall personally serve defendants Mike Moody and SIXFINGERYEAR.COM with a copy of this order at the address of record. Signed by Honorable Charles S. Coody on 10/30/2008. (cb, ) (Additional attachment(s) added on 10/30/2008: # 1 Main Document) (cb, ). Modified on 10/30/2008 to correct the docket text to show Sixfingeryear.com rather than Sixfingerhand.com (cb, ).

Download PDF
IN THE UNITED STATES DISTRICT COURT F O R THE MIDDLE DISTRICT OF ALABAMA E A S T E R N DIVISION A U B U R N UNIVERSITY, P l a i n t if f , v. M IK E MOODY and S I X F I N G E R Y E A R .C O M D e f e n d a n ts . ) ) ) ) ) ) ) ) ) ) C I V IL ACT. NO. 3:08cv796-CSC (W O ) ORDER T h is matter is presently before the court on the plaintiff's motion for a preliminary in ju n c tio n , filed on September 29, 2008. The court held a hearing on the plaintiff's motion o n October 23, 2008. Pursuant to 28 U.S.C. § 636(c)(1) and M.D. Ala. LR 73.1, the parties h a v e consented to the United States Magistrate Judge conducting all proceedings in this case a n d ordering the entry of final judgment.1 The court has jurisdiction of this matter pursuant to 28 U.S.C. §§ 1331, 2201 and 2202. Upon consideration of the evidence before the court an d the arguments of counsel, the court concludes that the plaintiff's motion for preliminary in ju n c tio n is due to be granted. A party requesting preliminary injunctive relief must show: "(1) a substantial lik e lih o o d of success on the merits; (2) a substantial threat of irreparable injury during the At the hearing on the motion for a preliminary injunction, Moody testified that he "was sixfingeryear.com" and that he alone was responsible for the creation and maintenance of the website. The United States Magistrate Judge also explained to Moody that this case was assigned to a Magistrate Judge and he had the right to consent or request reassignment. See Attached Explanation. By submitting the requisite form, the parties have consented to a Magistrate Judge's jurisdiction. See 28 U.S.C. § 636(c). 1 p e n d e n cy of the lawsuit unless the injunction issues; (3) the threatened injury to the movant o u tw e ig h s injury caused by the injunction to the nonmovant; and (4) the injunction would n o t adverse to the public interest." Klay v. United Healthgroup, Inc., 376 F.3d 1092, 1097 (11 th Cir. 2004) quoting Siegel v. Lepore, 234 F.3d 1163, 1176 (11 th Cir. 2000) (en banc) (per c u ria m ); Am. Red Cross v. Palm Beach Blood Bank, Inc., 143 F.3d 1407 (11 th Cir. 1998); H a itia n Refugee Ctr., Inc. v. Christopher, 43 F.3d 1431 (11 th Cir. 1995). A preliminary in ju n c tio n is an extraordinary and drastic remedy which should not be granted unless the m o v a n t clearly carries the burden of persuasion as to all prerequisites. United States v. J e ffer so n County, 720 F.2d 1511 (11 th Cir. 1983). The court has carefully reviewed the p la in tiff's motion, has carefully considered the evidence presented at the hearing and c o n c lu d e s that the plaintiff has demonstrated that it meets each of the prerequisites for the is s u a n c e of a preliminary injunction. The plaintiff holds valid, federally registered trademarks and service marks for A U B U R N ® , WAR EAGLE ® , AUBURN UNIVERSITY ® , and AUBURN TIGERS ® . Any p ro d u c t bearing these marks must be approved by Auburn University and licensed for sale o r distribution. The court finds that after being duly notified of the plaintiff's trademarks, s e rv ic e s marks and licensing requirements, the defendants infringed upon and will continue to infringe upon the plaintiff's marks by offering for sale and selling unlicensed orange and b lu e six finger foam hand novelty souvenirs bearing those marks unless enjoined by this C o u rt. Consequently, the court concludes that the plaintiff has demonstrated a substantial lik elih o o d of success on the merits, that the threat of irreparable injury exists, that the harm 2 su ffe re d by the plaintiff would exceed the harm suffered by the defendants, and that it is in th e best interest of the public not to be deceived or confused by any unauthorized use of A u b u rn 's trademarks and service marks by the defendants. A separate memorandum opinion m o re fully explaining the court's findings and reasoning will issue within the next several day s. A c c o r d in g ly , it is ORDERED and ADJUDGED as follows: 1. T h a t plaintiff Auburn University's motion for a preliminary injunction be and is hereby GRANTED. 2. T h a t the defendants, Michael Moody and SIXFINGERYEAR.COM, and their o ffic e rs , agents, servants, and employees, and all persons acting in conjunction with the d e fe n d a n ts or at their direction, be and are, until further order of the court, RESTRAINED a n d ENJOINED from producing, manufacturing, marketing, distributing, selling or offering fo r sale, the unlicensed orange and blue six finger foam hand novelty souvenirs bearing, or w h ic h have ever borne, the AUBURN ® and WAR EAGLE ® marks as well as any other foam h a n d novelty product that contains any of Auburn's marks including AUBURN ® , WAR E A G L E ® , AUBURN UNIVERSITY ® , and AUBURN TIGERS ® . 3. T h a t the defendants shall immediately remove all items and images of items fro m the SIXFINGERYEAR.COM website shopping cart that presently have affixed or have 3 e v e r had affixed to it any of the Auburn marks.2 4. T h a t the defendants shall on or before November 6, 2008, DELIVER to A u b u rn for safekeeping (1) their entire inventory of unlicensed orange and blue six finger fo a m hand novelty souvenirs bearing, or which have ever borne, the AUBURN ® and WAR E A G L E ® marks, as well as any other foam hand novelty product that presently has affixed o r has ever had affixed to it, any of Auburn's marks including AUBURN ® , WAR EAGLE ® , A U B U R N UNIVERSITY ® , and AUBURN TIGERS ® and (2) any and all advertising and p rom o tio n a l materials, signs, business cards or other material which contain the Auburn m a rk s. Counsel for the plaintiff and the defendants shall confer and arrange a mutually a g re e ab le method for the delivery. 5. T h a t the plaintiff shall retain all such items received in the condition in which th e y are received until further order of the court. 6. T h a t defendant Michael Moody shall cause to be PUBLISHED a corrective sta tem e n t on the website SIXFINGERYEAR.COM specifically stating that the defendants are not now, nor have they ever been, licensed to sell merchandise bearing the Auburn tr a d e m a r k s and service marks. 7. T h a t in accordance with FED. R. CIV. P. 65(c), the plaintiff shall post a bond in the amount of $5,000 with the Clerk of Court by no later than close of business on Although Moody testified at the preliminary injunction hearing that he had removed the marks AUBURN® and WAR EAGLE® from the six finger orange hands featured on the website's shopping cart, when the image is enlarged those marks are still faintly visible. Consequently, any hand or image of a hand that bears or has ever borne the plaintiff's marks must be removed from the website's shopping cart. 2 4 M o n d a y , November 3, 2008. Said bond shall be posted during the duration of the p re lim in a ry injunction for "the payment of such costs and damages as may be incurred or s u ff e re d by" the defendants or other persons restrained by the preliminary injunction. FED. R . CIV. P. 65(c). Withdrawal of the bond, will automatically terminate the obligations of p erso n s enjoined by said preliminary injunction. The court will vacate the preliminary in ju n c tio n should the Plaintiff fail to post the bond as ordered. T h e Clerk of the Court is DIRECTED to issue a writ of injunction and the United S tates Marshal shall personally serve defendants Mike Moody and SIXFINGERYEAR.COM w i th a copy of this order. The defendants' address of record is 1136 Beth Manor Drive, M o n tg o m e ry , Alabama 36109. D o n e this 30 th day of October, 2008. /s/Charles S. Coody CHARLES S. COODY U N IT E D STATES MAGISTRATE JUDGE 5

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.


Why Is My Information Online?