Young Champions Recreation Programs Incorporated v. Toop Sports Incorporated et al

Filing 14

ORDER that Plaintiff's request for a temporary restraining order, without notice, is denied. IT IS FURTHER ORDERED that Plaintiff's Application for TemporaryRestraining Order and Motion for Preliminary Injunction Regarding Trademark, Serv ice Mark and Copyright Infringement 4 is set for a hearing on Monday, October 6, 2014 at 4:00 p.m., Courtroom 504, Sandra Day O'Connor U. S. Courthouse, 401 West Washington, Phoenix, Arizona 85003. IT IS FURTHER ORDERED that Plaintiff sha ll give Defendants actual notice of its Application for Temporary Restraining Order and Motion for Preliminary Injunction Regarding Trademark, Service Mark and Copyright Infringement 4 , whether by service of process or not, no later than 5 p.m. on October 3, 2014. Signed by Judge Neil V. Wake on 10/1/14. (CLB)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Young Champions Recreation Programs
Incorporated,

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Plaintiff,

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No. CV-14-02142-PHX-NVW
ORDER

v.
Toop Sports Incorporated, et al.,
Defendants.
Before the Court is Plaintiff’s Ex Parte Application for Temporary Restraining
Order and Motion for Preliminary Injunction Regarding Trademark, Service Mark and
Copyright Infringement (Doc. 4).
“Someone seeking a preliminary injunction must demonstrate ‘that he is likely to
succeed on the merits, that he is likely to suffer irreparable harm in the absence of
preliminary relief, that the balance of equities tips in his favor, and that an injunction is in
the public interest.’” Nat’l Meat Ass’n v. Brown, 599 F.3d 1093, 1097 (9th Cir. 2010)
(quoting Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 20 (2008)), rev’d on other
grounds, 132 S. Ct. 965 (2012). The Application fails to allege an adequate likelihood of
irreparable harm to carry Plaintiff’s burden. Plaintiff asserts “it is anticipated that a large
shipment of unlicensed Young Champions merchandise…is about to be released to
customers throughout the United States.” Doc. 4 at 4. But Plaintiff neither explains the
basis for this belief nor provides any information about when, exactly, this shipment is set
to leave the warehouse. Nothing in Plaintiff’s Application reveals whether the goods that

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are “about to” be released will ship a week from now, a month from now, or at some

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point further in the future. A bare, conclusory assertion that “the harm to Plaintiff [from

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the shipment] will be imminent, irreparable and incapable of remedy solely by money

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damages,” id. at 17, is insufficient.

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The facts alleged in the Application also do not justify the issuance of an order ex

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parte. A court “may issue a temporary restraining order without written or oral notice to

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the adverse party or its attorney only if: (A) specific facts in an affidavit or a verified

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complaint clearly show that immediate and irreparable injury, loss, or damage will result

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to the movant before the adverse party can be heard in opposition; and (B) the movant’s

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attorney certifies in writing any efforts made to give notice and the reasons why it should

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not be required.” Fed. R. Civ. P. 65(b)(1). For the reasons explained above, Plaintiff

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cannot satisfy subpart (A) of this rule. As for subpart (B), Plaintiff’s counsel states in his

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Declaration that, based on his experience in similar cases, Defendants’ past conduct—

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including their “refusing to disclose the identity of where the Goods are made” and their

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unwillingness to assist Plaintiff in vetting Defendants’ manufacturing process—leads him

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to believe they will “secret[] away” and “hid[e]” the goods if given notice of a hearing

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before a temporary restraining order issues. Doc. 4-2 at 2-3. Even if there were a link

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between stonewalling a vetting process and hiding a batch of Defendants’ goods, it is not

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clear why Plaintiff fears the “secret[ing] away” and “hid[ing]” of such goods. After all, it

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is precisely the distribution of these goods that Plaintiff asks the Court to restrain.

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Counsel’s Declaration does not offer a compelling reason “why [notice] should not be

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required.”

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IT IS THEREFORE ORDERED that Plaintiff’s request for a temporary restraining
order, without notice, is denied.

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IT IS FURTHER ORDERED that Plaintiff’s Application for Temporary

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Restraining Order and Motion for Preliminary Injunction Regarding Trademark, Service

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Mark and Copyright Infringement (Doc. 4) is set for a hearing on Monday, October 6,

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2014 at 4:00 p.m., Courtroom 504, Sandra Day O’Connor U. S. Courthouse, 401 West

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Washington, Phoenix, Arizona 85003.

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IT IS FURTHER ORDERED that Plaintiff shall give Defendants actual notice of

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its Application for Temporary Restraining Order and Motion for Preliminary Injunction

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Regarding Trademark, Service Mark and Copyright Infringement (Doc. 4), whether by

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service of process or not, no later than 5 p.m. on October 3, 2014.

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Dated this 1st day of October, 2014.

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