Xcentric Ventures LLC v. Karsen Limited et al

Filing 30

ORDER denying 21 plaintiff's Motion for Preliminary Injunction. Signed by Judge Frederick J Martone on 4/4/12.(TLJ)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Xcentric Ventures LLC,
Plaintiff,

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vs.

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Karsen Ltd., et al.,
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Defendants.
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No. CV 11-01055-PHX-FJM
ORDER

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We have before us plaintiff's motion for preliminary injunction (doc. 21), defendant

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Eugene Selihov's response (doc. 25), and plaintiff's reply (doc. 27). Plaintiff contends a

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preliminary injunction should issue under the Copyright Act, Lanham Act, or the common

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law. Defendant Selihov contends that third parties are responsible for posting the allegedly

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infringing information on his website, www.scaminformer.com. He also claims immunity

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under the Digital Millennium Copyright Act ("DMCA") and Communications Decency Act

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("CDA").

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"A plaintiff seeking a preliminary injunction must establish that he is likely to succeed

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on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief,

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that the balance of equities tips in his favor, and that an injunction is in the public interest."

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Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 20, 129 S. Ct. 365, 374 (2008).

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Plaintiff's second amended complaint includes claims for copyright infringement, trademark

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infringement, and unlawful removal of copyright management information.

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"To establish a prima facie case of copyright infringement, a plaintiff must

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demonstrate (1) ownership of a valid copyright, and (2) copying of constituent elements of

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the work that are original." Range Road Music, Inc. v. East Coast Foods, Inc., 668 F.3d

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1148, 1153 (9th Cir. 2012) (internal quotation marks omitted). Defendant argues that, while

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copying may have occurred, he was not the party who copied the material.

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"To prevail on a claim of trademark infringement under the Lanham Act, 15 U.S.C.

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§ 1114, a party 'must prove: (1) that it has a protectible ownership interest in the mark; and

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(2) that the defendant's use of the mark is likely to cause consumer confusion.'" Network

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Automation, Inc. v. Advanced Sys. Concepts, Inc., 638 F.3d 1137, 1144 (9th Cir. 2011).

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Plaintiff does not address the elements of this cause of action in its motion.

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Copyright management information includes information identifying the work or the

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copyright owner. 17 U.S.C. § 1202(c). 17 U.S.C. § 1202(b) prohibits the intentional

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removal or alteration of any copyright management information, as well as distribution with

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knowledge that copyright management information has been removed or altered without

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authority. The parties dispute who removed or altered the information.

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We have not yet held a Rule 16 conference in this case. The parties have not

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conducted discovery. At such an early stage of litigation, we cannot determine whether

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plaintiff is likely to succeed on the merits, whether plaintiff will suffer irreparable injury if

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preliminary relief is not granted, or whether the balance of equities tips in its favor. The

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public interest is not served by judicial involvement until the facts are developed. Plaintiff

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has not shown that the Winter factors favor issuing a preliminary injunction here.

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IT IS ORDERED DENYING plaintiff's motion for preliminary injunction (doc. 21).

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DATED this 4th day of April, 2012.

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