Southern California Darts Association v. Southern California Darts Association Inc et al

Filing 8

NOTICE OF MOTION AND MOTION for Preliminary Injunction re Re Trademark Infringement.. If this is filed during normal business hours, please contact the courtroom deputy assigned to the judge. If you are filing this document after 5:00 Monday through Friday, on a weekend or holiday, and need immediate judicial review, please call 213-894-2485 to advise that a Preliminary Injunction has been electronically filed. Failure to call the courtroom deputy, or the after hours filing contact number, may result in a delay of judicial review. Motion filed by PLAINTIFF Southern California Darts Association. Motion set for hearing on 4/16/2012 at 09:00 AM before Judge R. Gary Klausner. (Attachments: # 1 Memorandum, # 2 Declaration of Naomi Straus, # 3 Declaration of Matthew Canale, # 4 Declaration of L. David Irete, # 5 Exhibit of L. David Irete (Part 1 of 4), # 6 Exhibit of L. David Irete (Part 2 of 4), # 7 Exhibit of L. David Irete (Part 3 of 4), # 8 Exhibit of L. David Irete (Part 4 of 4), # 9 Appendix, # 10 Proposed Order, # 11 Proof of Service)(Kawahito, James)

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KA WAHITO SHRAGA & WESTRICK LLP
James K. Kawahito (No. 234851)
e-mail: jkawahito@kswla~ers.com
NOELLE SHANA'B:AN CUTTS (No. 259175)
e-mail: [e-mail]
1990 South Bundy Dr., Suite 280
Los Angeles, CA90025
Telephone: [phone]
Facsimile: (31 0) 593-2520

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ATTORNEYS FOR PLAINTIFF
SOUTHERN CALIFORNIA DARTS ASSOCIATION.

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UNITED STATES DISTRICT COURT

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FOR THE CENTRAL DISTRICT OF CALIFORNIA

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WESTERN DIVISION

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SOUTHERN CALIFORl'JIA DARTS
ASSOCIATION, a California
unincorporated association,
Plaintiff,
vs.
SOUTHERN CALIFORNIA DARTS
ASSOCIATION, INC., a California
corporation, DINO M. ZAFFINA, an
individual, and DOES 1-10,

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Defendants.

CASE NO. 2:12-CV-01899 RGK

MEMORANDUM OF POINTS
AND AUTHORITIES IN
SUPPORT OF PLAINTIFF'S
MOTION FOR PRELIMINARY
INJUNCTION
[DECLARATIONS OF L. DAVID
IRETE; NAOMI STRAUS; AND
MATT CANALE FILED
CONCURRENTLY HEREWITH;
[PROPOSED] ORDER LODGED
CONCURRENTLY HEREWITH]

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Date: April16, 2012
Time: 9:00a.m.
Courtroom: 850

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MOTION FOR PRELIMINARY INJUNCTION

TABLE OF CONTENTS

1
2

I.

INTRODUCTION ........................................................................................ 1

3

II.

STATEMENT OF THE FACTS .................................................................. 3

4

A.

Southern California Darts Association .............................................. 3

5

B.

Expungement of Defendant Zaffina From SCDA ............................. 4

6

C.

Formation of Zaffina Co .................................................................... 5

7

D.

Zaffina Co. Press Releases and State Court Action ........................... 5

8

E.

Evidence of Actual Confusion from Defendants' Infringing Activity6

9

F.

Evidence of Actual Harm from Defendant's Infringing Activity ...... 6

10

III.

ARGUMENT ................................................................................................ 7

11

A.

Legal Standard ................................................................................... 7

12

B.

Plaintiffs Have a Strong Likelihood ofPrevailing on their Claims ... 7
1.

13

Violation of 15 U.S.C. § 1125(a) ............................................. 7
a.

14

SCDA Has Priority of Use in its Southern California
Darts Association Trade Name and Marks ................... 8

15
b.

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SCDA Has Established a Strong Likelihood of
Consumer Confusion ................................................... 11

17
c.

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Defendant Zaffina Is Personally Liable For The
Infringing Acts ............................................................. 14

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d.

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Defendants' Reliance On Its Incorporation As A Basis
For Its Infringing Conduct Is Without Merit.. ............. 14

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2.

22
C.

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State-Law Claims ................................................................... 15

SCDA Will Suffer Irreparable Harm and Has No Adequate Remedy
at Law If the Court Does Not Issue an Injunction ........................... 16

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25

D.

The Balance of Hardships Tips Heavily In Favor of SCDA ........... 17

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E.

The Injunction Will Preserve the Status Quo .................................. 18

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F.

A Bond Should Not Be Required ..................................................... 18

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IV.

CONCLUSION .......................................................................................... 19
- 1-

MOTION FOR PRELIMINARY INJUNCTION

TABLE OF AUTHORITIES

1

2

Federal Cases

3

Accuride Int 'l, Inc. v. Accuride Corp.,

4
5
6

7

871 F.2d 1531 (9th Cir. 1989) ............................................................................... 8.
Alpha Indust., Inc. v. Alpha Steel Tube & Shapes, Inc.,
616 F.2d 440 (9th Cir. 1980) ............................................................................... 11
Am. Petrojina, Inc. v. Petrojina of California, Inc.,

8

No. CV 74-3330, 189 U.S.P.Q. 67, 82,

9

1975 WL 21190 (C.D. Cal. Dec. 3, 1975) aff'd,

10
11
12

596 F.2d 896 (9th Cir. 1979) ............................................................................... 15
Ball v. Am. Trial Lawyers Assn.,
14 Cal. App. 3d 289, 300-01,
92 Cal. Rptr. 228, 235 (Ct. App. 1971) ............................................................... 16

13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

Brookfield Commc 'ns, Inc. v. West Coast Entm 't Corp.,
174 F.3d 1036 (9th Cir. 1999) ......................................................................... 8, 13
Chalk v. United States Dist. Ct.,
840F.2d 701 (9thCir.1988) ............................................................................... 18
Committee for Idaho's High Desert, Inc. v. Yost,
92 F. 3d 814 (9th Cir. 1996) .............................................................................. 7, 9
Entrepreneur Media, Inc . v . Smith,
279 F.3d 1135 (9th Cir.2002) .............................................................................. 12
Freecycle Network, Inc. v. Dey,
505 F.3d 898 (9th Cir. 2007) ................................................................................. 7
GoTo.com, Inc. v. Walt Disney Co.,
202 F.3d 1199 (9th Cir. 2000) ....................................................................... 11, 18
Halicki Films, LLC v. Sanderson Sales and Mktg.,
547 F.3d 1213(9th Cir. 2008) ................................................................................ 8
Lahoti v. VeriCheck, Inc.,
586 F.3d 1190 (9th Cir. 2009) ............................................................................... 8
- 11 -

MOTION FOR PRELIMINARY INJUNCTION

1

2
3
4

5

6
7
8
9
10
11

12
13
14
15
16
17
18
19

Mattel, Inc. v. Walking Mountain Prods.,
353 F.3d 792 (9th Cir. 2003) ............................................................................... 11

Minnesota State Archery Ass 'n I, Inc. v. Minnesota State Archery Ass 'n Inc.,
66 U.S.P.Q.2d (BNA) 1348,
2003 WL 1589868 (D. Minn. Mar. 20, 2003) ........................................... 9, 10, 14

Moltan Co. v. Eagle-Picher Indus., Inc.,
55 F.3d 1171 (6th Cir. 1995) ............................................................................... 19

N. Am. Aircoach Sys. v. N. Am. Aviation,
231 F.2d 205 (9th Cir. 1955) ............................................................................... 12

New W Corp. v. NYMCo. ofCal., Inc.,
595 F.2d 1194 (9th Cir. 1979) ......................................................................... 8, 15

Pipers v. Holiday Inns, Inc.,
No. C 79-1716 SW, 215 U.S.P.Q. 466,
1981 WL 48158, at *3 (N.D. Cal. Mar. 17, 1981) .............................................. 15

Playboy Enters., Inc. v. Chen,
No. CV 96-3417 DDP (VAPx) 45 U.S.P.Q.2D 1400
1997 WL 829339 at* 18 (C.D. Cal. 1997) .......................................................... 14

Rearden LLC v. Rearden Commerce, Inc.,
597 F. Supp. 2d 1006 (N.D. Cal. 2009) .............................................................. 13

Rent-A-Center, Inc. v. Canyon Television & Appliance,

20

944 F.2d 597 (9th Cir. 1991) ............................................................................... 17

21

Smith v. Montara, 648 F.2d 602 (9th Cir. 1981) ............................................... 7, 14

22

Steinway & Sons v. Robert Demars & Friends,

23
24
25
26
27

10 U.S.P.Q. (BNA) 954,
1981 U.S. Dist. LEXIS 15169 (C.D. Cal. Jan. 28, 1981) ................................... 17

Stephen W Boney, Inc. v. Boney Services, Inc.,
127 F.3d 821 (9th Cir. 1997) ................................................................................. 8

SunEarth, Inc. v. Sun Earth Solar Power Co., Ltd., No.
11-4991 CW, 2012 WL 368677 (N.D. Cal. Feb. 3, 2012) .................................. 13

28
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MOTION FOR PRELIMINARY INJUNCTION

1

2
3

4

5
6
7

Tanner Motor Livery, Ltd. v. Avis, Inc.,
316 F.2d 804 (9th Cir. 1963) ............................................................................... 18
Trans go, Inc. v. Ajac Transmission Parts Corp.,
768 F.2d at 1021 (9th Cir. 1985) ......................................................................... 14
U S. Jaycees v. San Francisco Jr. Chamber of Commerce,
354 F. Supp. 61 (N.D. Cal. 1972) ......................................................................... 8
U S. Jaycees v. San Francisco Jr. Chamber of Commerce,
513 F.2d 1226 (9th Cir. 1975) ............................................................................... 8

8

9 State Statutes
O CAL. Bus. & PROF. CODE § 17203 ......................................................................... 16

1

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CAL. Bus. & PROF. CODE§§ 14411, 14415 ........................................................... 15

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Federal Statutes

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Lanham Act, 15 U.S.C. § 1125(a) ........................................................................... 7

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Lanham Act, 15 U.S.C. §1116(a) ............................................................................ 7

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Other Authorities

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1 J. MCCARTHY, TRADEMARKS AND UNFAIR COMPETITION§ 9:6 (4th ed.) ............ 8

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1 J. McCARTHY, TRADEMARKSANDUNFAIRCOMPETITION § 9:8 (4th ed.) .......... 15

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3 J. MCCARTHY, TRADEMARKS AND UNFAIR COMPETITION§ 25:24 (4th ed.) ....... 14

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21

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- ivMOTION FOR PRELIMINARY INJUNCTION

MEMORANDUM OF POINTS AND AUTHORITIES

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I.

INTRODUCTION

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Plaintiff Southern California Darts Association ("SCDA" or "Plaintiff')

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requests a preliminary injunction to prevent irreparable harm from the conduct

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giving rise to its claims for trademark infringement and unfair competition against

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Defendants Southern California Darts Association, Inc. ("Zaffina Co.") and Dino

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M. Zaffina ("Zaffina") (collectively "Defendants"). Defendants' conduct has led

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to actual confusion in the marketplace and should be immediately enjoined.

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SCDA has operated as an unincorporated association of competitive darts

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enthusiasts since the early 1960s. It is the founding member of the American

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Darts Organization ("ADO"), which oversees competitive darts events throughout

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the United States. Since inception, SCDA has organized hundreds of darts

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tournaments and darts-related events. Its events have drawn darts enthusiasts

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from around the world and garnered international media attention. One of

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SCDA's main functions is to organize and run darts leagues for its members

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("Association Members") in Southern California. SCDA has longstanding

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relationships with pubs, restaurants, and social clubs throughout region (the "Host

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Pubs") who host league events and contribute sponsorship fees.

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For nearly fifty (50) years, SCDA has used the trade name "SOUTHERN

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CALIFORNIA DARTS ASSOCIATION" to identify the group and to inform

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members and other darts enthusiasts of affiliated events. It has also used the

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marks "SoCal Darts" and "SCDA," as well as various logos featuring a dart board

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with "Southern California Dart Association" around the perimeter (collectively,

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the "SCDA Marks").

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In or about July 2010, Defendant Zaffina, at the time a member ofSCDA,

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became upset about SCDA's failure to include his middle ini.tial in the weekly

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league scoring reports. A dispute with the SCDA Board ensued, and Zaffina was

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expelled from the association for unsportsmanlike conduct. Unbeknownst to the
- 1MOTION FOR PRELIMINARY INJUNCTION

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Board, in early 2011, after his expulsion, Zaffina registered a corporation with the

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California Secretary of State under the name of a defunct entity, Southern

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California Darts Association, Inc. 1

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From that point forward, Defendants co-opted the names "Southern

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California Darts Association," "SCDA," and "SoCal Darts," and indicated that

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they intended to start a competing darts league in Southern California. They also

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claimed to have obtained exclusive rights to the aforementioned names, and began

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threatening Host Pubs and Association Members if they participated in any league

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or other events under those names. Zaffina Co. then sued fifty-nine (59)

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Association Members and numerous Host Pubs in state court claiming that they

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committed "trade libel" by participating in SCDA darts league events.

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All factors lead to the conclusion that the requested injunction should issue:

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•

The SCDA Marks have developed secondary meaning through

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roughly fifty (50) years of continuous use throughout the United States, are

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protectable, and are being infringed by Defendants' use of identical names and

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marks. As a result, Plaintiff is suffering immediate and irreparable harm.
Evidence of actual confusion exists among darts players and Host

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Pubs who mistakenly believe Defendants are associated with Plaintiff.

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The balance of hardships weighs in favor of Plaintiff. Defendants are

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free to develop a darts league using any name that does not mislead the public or

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trade on the goodwill Plaintiffhas built over fifty (50) years in the SCDA Marks.

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Moreover, Defendants have not actually started a darts league.
Therefore, Plaintiff respectfully requests that this Court issue a preliminary

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injunction enjoining Defendants from using the SCDA Marks, forcing them to
disable the internet domain names associated with their illicit use of the SCDA
Marks, and requiring them to inform Host Pubs of the injunction.

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For a period in the 1960's and 1970's, several members ofSCDA formed a
separate, nonprofit corporation, Southern California Darts Association, Inc.
However, this entity apparently went inactive in 1977.
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-2MOTION FOR PRELIMINARY INJUNCTION

1

II.

STATEMENT OF THE FACTS
Southern California Darts Association

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A.

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SCDA is an unincorporated association of competitive darts enthusiasts,

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operating continuously in the Southern California area since its inception in the

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early 1960's. (Declaration ofL. David Irete ["Irete Decl."]

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purpose is to promote competitive darts and to coordinate league play, both

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locally and at the national and international levels. (ld.

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3; Ex. A.) SCDA's

the 1960s to a high of nearly 5,000 members in the early 1980s. (ld.

at~

Currently, SCDA has around one hundred (1 00) active members. (Id.
at~

6.)

at~

7.)

8; Ex. B). SCDA is a member in good

standing with the ADO, the governing body of organized darts in the U.S., which
considers SCDA to be its founding member. (Jd.at ~ 9.)

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2.) SCDA's

membership has ranged in size from a few dozen players at the club's inception in

SCDA conducts regular meetings. (Id.
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at~

at~

Since at least 1963, SCDA has made continual use of the name Southern
California Darts Association, the nickname SoCal Darts, and the acronym SCDA.
(Id.

at~

10.) SCDA advertises its services on a website, www.socaldarts.com,

whereby it informs members of current and future events and links to another
website where it posts the scoring from the league events. (Id.

at~

12; Ex. D.)

SCDA also communicates with its members through a Facebook page. (Id.
13.) In the past, SCDA issued a newsletter, "Darts & Dashes." (Id.

at~

at~

13; Ex. E,

F.) These newsletters reflected SCDA's participation in darts tournaments against
teams from all over the world.
SCDA has longstanding relationships with the Host Pubs located
throughout Southern California. (Id.

at~

15.) For many years, until the events

giving rise to this Action, these Host Pubs hosted SCDA league events and
contributed annual sponsorship fees that allowed SCDA to operate. (Id.)
In addition to league play, SCDA participates in and organizes regional and
national tournaments, and advertises these tournaments using its SCDA Marks,

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-3MOTION FOR PRELIMINARY INJUNCTION

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including a logo of a dartboard with the words "Southern California Darts

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Association" around the border. (Id.

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also sent players to international tournaments. (Id.

at~

16; Exs. G, H, I, J, K, L, M.) SCDA has
at~

17; Ex. N.)

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From 1970 to 1999, SCDA organized the North American Open Darts

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Tournament ("NAODT"), a competitive tournament entered by darts leagues from

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around the world. (Jd.

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obtained sponsorships for the NAODT from large international companies such as

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National Car Rental, Watneys of London Beer, Stroh's Beer, and Unicorn Darts.

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(Jd.) SCDA plans to revive the NAODT in the near future. (Id. at~ 20.)

at~

18; Exs. 0, P, Q.) On the basis of its goodwill, SCDA

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SCDA has also been acknowledged in publications by other darts

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organizations and in a national sports magazine. (Declaration ofNaomi Straus

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["Straus Decl."]

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at~~

3,4,5, Exs. A, B, C, D, E.)

In 1966, several members, with the permission of SCDA, formed a

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separate, unaffiliated corporation under the name "Southern California Darts

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Association, Inc." to also help promote darts and to run a darts store. (Irete Decl.,

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~

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California Secretary of State to lapse in 1977. However, at all times pertinent

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thereto, SCDA continued to operate as it always had.

21, Ex. R.) This unaffiliated corporation allowed its registration with the

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B.

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Defendant Zaffina is a former member ofSCDA. (Irete Decl.

Removal of Defendant Zaffina From SCDA
at~

22.) In

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July and August of2010, Zaffina became upset about how scores were computed

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and the omission of his middle initial on SCDA score sheets. (Id.

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developed into a heated disagreement between him and the SCDA Board. (Id.)

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As a result of this confrontation, the Board revoked Zaffina' s membership by a

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at~

23.) This

vote in in accordance with SCDA bylaws, on the basis of unsportsmanlike
behavior. (Id. at ,-r 24.) Zaffina ceased to be a member of SCDA as of August 23,
2010. (Id.

at~

25.) The circumstances surrounding Zaffina's removal from

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SCDA and Zaffina's subsequent retaliatory actions have received significant press

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coverage. 2

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c.

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In early 2011, Zaffina registered Zaffina Co. with the California Secretary

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7

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Formation of Zaffina Co.

of State under the name "Southern California Darts Association, Inc." (Straus
Decl.

at~

8; Ex. H.) SCDA's current board president, L. David !rete, was

unaware that Zaffina had taken such actions until the fall of 2011. (!rete DecI. at ~
26.) SCDA is informed and believes that Zaffina Co. is owned, operated,
managed, and run by Defendant Zaffina. (Straus Decl. at~ 8; Ex. H.)
Before forming Zaffina Co., Defendant Zaffina registered the domain name
www.southerncaliforniadartsassociation.com. (Straus Decl. at~ 9; Ex. I.)
Defendants then put up a website on that URL announcing that "Southern
California Darts Association, Inc. is a dart player's dream, providing the best dart

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leagues and tournaments in Southern California." (Straus Decl. at~ 10; Ex. J.) It

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also notes that "Southern California Darts Association, Inc. and its four

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subsidiaries, SCDA, So Cal Darts Association, So Cal Darts, and SCDA Products

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will give players and fans an excellent darting experience" and that it will be

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starting a darts league in 2012. (Jd.)

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D.

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In the fall of 2011, Defendants began contacting Host Pub owners and

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Association Members, stating that Zaffina Co. owns the exclusive right to use the

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name "Southern California Darts Association," and threatening legal action

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against anyone using that name without Zaffina Co.'s permission, including Host

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Pubs and Association Members. (!rete Decl. at~ 27.) Many of Defendants'

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communications have come in the form of "press releases," which are printed on

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letterhead bearing the name "Southern California Darts Association, Inc." and the

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Zaffina Co. Press Releases and State Court Action

See Dastardly Deeds In Darts. Straus Decl. at~ 7; Ex. G; also available at
http://www.laweekly. com/20 12-02-02/news/dino-m-zaffina-southern-californiadarts-association/.

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1 dartboard logo used on the website. (Jd. at ,-r 28, Exh. S.) Defendants have issued
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eighteen ( 18) press releases to date, maintaining that Zaffina Co. has exclusive

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rights to the name "Southern California Darts Association," and touting legal

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actions Zaffina Co. has taken or plans to take against its imagined infringers. (!d.)

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Thereafter, Zaffina Co. brought a state court action naming fifty-nine (59)

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Association Members and eight (8) Host Pubs for playing in league events or

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hosting those events under the banner - "Southern California Darts Association."

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(Los Angeles Superior Court, Case No. EC 056642) ("State Court Action"). It did

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not bring suit against SCDA in the State Court Action. The matter has been

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transferred to Complex Court and is awaiting the initial status conference.

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E.

Evidence of Confusion from Defendants' Infringing Activity

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Defendants' representations of ownership of the name "Southern California

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Darts Association," and their promotion of a yet-to-be established darts league

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under that name have engendered confusion in the darts community. For

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example, The Cat and Fiddle Restaurant and Pub, a longtime Host Pub, contacted

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am SCDA member on September 18, 2011, asking "what is going on?" regarding

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letters it had received "about SCDA name being misused and misrepresented."

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(Declaration ofMatthew Canale at ,-r 3, Ex. A.) Organizations across the U.S.,

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Canada, and the U.K. have also contacted SCDA and ADO asking whether there

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have been changes to SCDA. (Jd. at ,-r 33; Ex. T.) Creating further confusion,

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Zaffina has been disseminating business cards stating he is President and CEO of

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Southern California Darts Association. (Jd. at ,-r 34, Ex. T.)

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F.

Evidence of Actual Harm from Defendant's Infringing
Activity

As a result of the confusion caused by Defendants, many of the Host Pubs,

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including the Cat and Fiddle, have refused to allow SCDA league play in their

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establishments. (Jd. at ,-r 35.) Host Pubs have also stopped paying SCDA

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- 6MOTION FOR PRELIMINARY INJUNCTION

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sponsorship fees, and in some cases, member dues. (Id.) This has forced SCDA

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to cancel its fall 2011 season. (!d.)

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III.

ARGUMENT

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A.

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Federal Rule of Civil Procedure 65(b) and the Lanham Act, 15 U.S.C.

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7
8
9

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15
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Legal Standard

§ 1116(a), provide the Court with the "power to grant injunctions, according to the
principles of equity and upon such terms as the Court may deem reasonable ... to
prevent a violation under Section 1125(a) of this title." A court may issue an
interlocutory injunction if plaintiff demonstrates "'either: (1) a likelihood of
success on the merits and the possibility of irreparable injury; or (2) that serious
questions going to the merits were raised and the balance of hardships tips sharply
in its favor."' Clear Channel Outdoor Inc. v. City of Los Angeles, 340 F.3d 810;
813 (9th Cir. 2003) (citations omitted).
B.

Plaintiffs Have a Strong Likelihood of Prevailing on their
Claims

1. Violation of 15 USC.§ 1125(a)
"Section 43(a) of the Lanham Act, 15 U.S.C. § 1125(a), forbids the use of

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false designations of origin and false descriptions or representations in the

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advertising and sale of goods and services." Smith v. Montara, 648 F .2d 602, 603

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(9th Cir. 1981). To prevail on this claim, SCDA must show that Defendants: "(1)

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use[ d] in commerce ... any word, false designation of origin, false or misleading

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description, or representation of fact, which (2) is likely to cause confusion or

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misrepresents the characteristics ofhis or another's goods or services." Freecycle

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Network, Inc. v. Oey, 505 F.3d 898, 902 (9th Cir. 2007).

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An unincorporated association is entitled to protection of its trade name

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under the Lanham Act against confusing uses. See Committee for Idaho's High

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Desert, Inc. v. Yost, 92 F. 3d 814, 818 (9th Cir. 1996). "The fact that an

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organization is non-profit and sells no goods or services does not take it out of the

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-7MOTION FOR PRELIMINARY INJUNCTION

1

protection of the law of trademarks, service marks and unfair competition." 1 J.

2

McCARTHY, TRADEMARKS AND UNFAIR COMPETITION§ 9:6 (4th ed.).

3

A party asserting a claim under Section 43(a) of the Lanham Act need not

4

have a current trademark registration. Rather, the section broadly confers

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protection against infringement of unregistered marks as well as registered marks.

6

Broolifield Commc 'ns, Inc. v. West Coast Entm 't Corp., 174 F.3d 1036, 1046 n.6

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8
9
10
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12
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(9th Cir. 1999). Actions for trade name infringement can likewise be brought
under Section 43(a). Accuride Int 'l, Inc. v. Accuride Corp., 871 F.2d 1531, 1534
(9th Cir. 1989). Whether called "trade name or trademark infringement ... unfair
competition or false designation of origin, the test is identical: is there a
'likelihood of confusion?"' New W Corp. v . NYM Co. of Cal., Inc., 595 F.2d
1194, 1201 (9th Cir. 1979).
a. SCDA Has Priority of Use in its Southern California Darts
Association Trade Name and Marks.
Trade names and unregistered marks are entitled to protection against

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confusing or misleading uses once they have been used in commerce. 15 U.S.C.

16

§ 1125(a); Halicki Films, LLC v. Sanderson Sales and Mktg., 547 F.3d 1213,

17

1225-26 (9th Cir. 2008). "As with the right to the trade name, the right to control

18

use of the trademark depends on priority of use." Stephen W Boney, Inc. v. Boney

19

Services, Inc., 127 F.3d 821, 829 (9th Cir. 1997). For trade names and

20

unregistered marks, a plaintiff must also establish that its mark is either inherently

21

distinctive, or has acquired distinctiveness through secondary meaning. See

22

Lahoti v. VeriCheck, Inc., 586 F.3d 1190, 1197 (9th Cir. 2009). "The doctrine that

23

geographic or descriptive terms can acquire a secondary meaning is well

24

established .... When, by association with a business, a trade name has acquired a

25

special significance as the name thereof, it will be protected by the courts even

26

though it may have been a descriptive term in its original meaning." U S. Jaycees

27
28

v. San Francisco Jr. Chamber of Commerce, 354 F. Supp. 61, 75 (N.D. Cal.
1972), affd, 513 F.2d 1226 (9th Cir. 1975) (internal citations and quotations
-8MOTION FOR PRELIMINARY INJUNCTION

1

2

omitted).
In Committee for Idaho's High Desert, Inc. v. Yost (hereinafter High Desert),

3

the plaintiff was a non-profit environmental organization that had operated

4

continuously under the name "Committee for Idaho's High Desert" since at least

5

1980. High Desert, 92 F. 3d 814, 819-20 (9th Cir. 1996). In 1993, a group of

6
7
8
9

individuals discovered that the plaintiff had allowed its corporate standing to
lapse, and formed a new corporation named Committee for Idaho's High Desert,
Inc. !d. at 817. After incorporation, one of the individual defendants represented
that he was president of the Committee, and testified at a public hearing in support
of a development proposal he knew was "diametrically and publically opposed by

10
11
12
13

[plaintiff]." Id. at 818. In light of the plaintiff's continuous and exclusive use of
the trade name and the association of this name with plaintiff's services among the
"relevant 'consumer' group,"' i.e. "members and potential members, public
officials ... and other members of the interested public," the Ninth Circuit

14

affirmed the district court's findings that the plaintiffhad established ownership,

15

first use, and secondary meaning. !d. at 820, 822.

16

In facts nearly identical to the case at bar, a U.S. District Court in

17

Minnesota issued a preliminary injunction against the defendant infringers who

18

had co-opted the name of a non-profit, unincorporated association promoting

19

archery. Minnesota State Archery Ass 'n I, Inc. v. Minnesota State Archery Ass 'n

20

Inc., 66 U.S.P.Q.2d (BNA) 1348,2003 WL 1589868 (D. Minn. Mar. 20, 2003).

21

The Court noted that the non-profit plaintiff was the "largest and oldest archery

22

organization in Minnesota" and had been using the marks "MSAA" and

23

"Minnesota State Archery Association" in connection with services pertaining to

24

organized archery since its founding in 1938. Id. In 2002, the defendant, a

25
26
27
28

disgruntled member of the organization, discovered that the plaintiff had failed to
renew its non-profit corporation registration. The defendant then registered a forprofit corporation using the name "Minnesota State Archery Association, Inc."
and announced that he intended to use the name to form a new archery
-9MOTION FOR PRELIMINARY INJUNCTION

1 organization, and offered to license or sell the name "Minnesota State Archery
2 Association" to the plaintiff for a fee. !d. at *1-2. The court found that the
3

plaintiff had used the marks for years and had "obtained a measure of both

4

national and international name recognition and good will in connection with its

5
6

7
8
9

activities." !d. at *5-6. This created a significant likelihood of success on the
merits of the plaintiffs Section 43(a) claim, and the court granted its request for a
preliminary injunction. !d. at *7-8.
More compelling than the facts in High Desert and Minnesota State
Archery Ass 'n, here, SCDA has used the name Southern California Darts

Association and associated marks for nearly fifty (50) years and developed a

10

worldwide reputation. (Irete Decl. at~ 10.) SCDA is one of the oldest darts

11

organizations in California and in the United States. (Straus Decl. at~ 5, Ex. E.)

12

It is recognized by darts organizations across the country, and the name "Southern

13

California Darts Association" is uniquely associated with SCDA in the minds of

14

darts consumers. The recognition SCDA has received in national sports

15

magazines and on darts websites demonstrates the goodwill that it has built up in

16

the name over the years. (Straus Decl.

17

the use ofthe name has been exclusive. For example, in 1981, the SCDA board

18

sent a letter to the Little People International Billy Barty Foundation, admonishing

19

it for using the SCDA initials on a poster advertising a darts tournament without

20

obtaining SCDA's permission. (Irete Decl. ~ 11, Ex. C.) SCDA has and

21

continues to advertise its services using the Trade Name and Marks on fliers,

ifif 3-6 Exs. A, B, C, D, E, F.) Moreover,

22 newsletters, tournament programs, and its website. (Irete Decl. ~ 12-14, 16, Exs.
23
24
25
26
27

D, E, F, G, H, I, J, K, L, M, N.)
In addition to the above facts establishing the strength of SCDA's Marks in
the darts community, this Court may also look to Defendants' intent in selecting
their marks as evidence of the existence of secondary meaning. Defendants
intentionally adopted marks identical to the ones used by SCDA precisely for the
stated purpose of starting a competing darts league. (Irete Decl., ~~ 28, 29, Ex. S;

28
- 10MOTION FOR PRELIMINARY INJUNCTION

1

Straus Decl., ~ 10, Exh. J.) Similar to the facts in High Desert, Defendants'

2

intentional act in choosing the same name is compelling evidence of the existence

3

of a secondary meaning, as it shows they recognized the valuable goodwill in

4

these marks. High Desert, 92 F. 3d at 818.
b. SCDA Has Established a Strong Likelihood of Consumer

5

Confusion.

6
7
8
9
10
11
12
13
14

Based on its protectable interest in its name and marks, SCDA can readily
establish a Section 43(a) Lanham Act claim for unfair competition. There is no
question that Defendants are using SCDA's Marks in commerce and that a
likelihood of consumer confusion exists. Such confusion exists when
"'consumers viewing the mark would probably assume that the product or service
it represents is associated with the source of a product or service identified by a
similar mark."' Hollywood Athletic Club, 938 F.Supp. 612 at 614 (quoting Alpha
Indust., Inc. v. Alpha Steel Tube & Shapes, Inc., 616 F.2d 440, 443 (9th Cir.
1980)).

15

To determine whether there is a likelihood of confusion, courts in the Ninth

16

Circuit address the following Sleekcraft factors: (1) the similarity of the marks; (2)

17

the relatedness of the two companies' goods; (3) the marketing channels used; (4)

18

the strength of the plaintiff's mark; ( 5) the defendant's intent in selecting its mark;

19

( 6) evidence of actual confusion; (7) the likelihood of expansion into other

20

markets; and (8) the degree of care likely to be exercised by the purchaser.

21

GoTo.com, Inc. v. Walt Disney Co., 202 F.3d 1199, 1205 (9th Cir. 2000) (citing

22

AMF Inc. v. Sleekcraft Boats, 599 F.2d 341, 348 (9th Cir. 1979), abrogated in

23

part on other grounds by Mattel, Inc. v. Walking Mountain Prods., 353 F.3d 792

24

(9th Cir. 2003)).

25
26
27
28

The first three factors, i.e. the similarity of the marks, the relatedness of the
goods or services, and the use of common marketing channels, constitute "the
controlling troika in the Sleekcraft analysis." GoTo.com v. Disney, 202 F.3d 1199
at 1205. In this case, (1) the SCDA Marks used by Defendants are identical in
- 11 MOTION FOR PRELIMINARY INJUNCTION

1

sight, sound, and meaning to Plaintiff's; (2) SCDA's Marks and Defendants'

2

name and marks are both used in connection with services related to competitive

3

darts in the Southern California area; and (3) Defendants are marketing their

4

anticipated league through the same channels as SCDA (e.g. through a website,

5

letters, and verbal communications with host pubs). (Irete Decl., ~~ 27, 28, 34;
Exs. S, U; Straus Decl. ,-r 10, Exh. J.) Furthermore, Defendants used a logo that is

6

virtually identical to SCDA's logo. (Irete Decl. ,-r 28, Exh. S.) "The greater the

7

similarity between the two marks at issue, the greater the likelihood of confusion."

8

Entrepreneur Media, Inc. v. Smith, 279 F.3d 1135, 1144 (9th Cir.2002). Here, the

9

name and marks used are nearly identical.
10
11

I

Defendants' Infringing Mark

SCDAMark

12
13
14
15

16
17
18
19
With regard to the fourth Sleekcraft factor, the strength of the plaintiff's
20
21
22
23

mark, for the reasons set forth above, SCDA has developed secondary meaning in
the trade name "Southern California Darts Association" and the other SCDA
Marks, and they are exceptionally strong in the darts community. Once a mark
obtains secondary meaning, it "will be afforded as complete protection as if it

24

were a 'strong mark' at the inception." N. Am. Aircoach Sys. v. N Am. Aviation,

25

231 F.2d 205,210 (9th Cir. 1955).

26

Similarly, the fifth and sixth Sleekcraft factors, the defendant's intent in

27

selecting its mark, and evidence of actual confusion, weighs heavily in SCDA's

28

favor. Here, as a former member of SCDA, there is no question that Zaffina chose
- 12MOTION FOR PRELIMINARY INJUNCTION

1 to incorporate Zaffina Co. to capitalize on SCDA's name. Moreover, Defendants
2

have used and continue to represent that they have the right to control the use of

3

SCDA's Marks, thereby engendering confusion. (Irete Decl., ~~ 27-35.) At least

4

one Host Pub contacted SCDA, questioning whether Defendants were a part of or

5

affiliated with SCDA. (Canale Decl.

6

Canada, and the U.K. have contacted SCDA and ADO asking whether there have

7
8
9

10
11
12
13

~

3, Exh. A.) Organizations across the U.S.,

been changes to SCDA. (Irete Decl., ~ 33.) 3 Moreover, Zaffina has disseminated
business cards stating he is President and CEO of Southern California Darts
Association, thereby creating confusion about who is running the organization,
and whether Zaffina has authority to act on behalf of SCDA. (!d.

at~

34, Exh. U.)

As for the remaining factors, "[t]he likelihood of expansion in product
lines factor" is "relatively unimportant where two companies [such as here]
already compete" in common marketing channels. Broolfzeld Commn 's, Inc. v.
West Coast Entm 't Corp., 174 F.3d 1036, 1044 (9th Cir. 1999). Moreover,

14

Defendants have indicated their intention to organize a competitive darts league

15
16

this year. (Straus Decl. ~ 10, Exh. J.).

17

evidence underlying the three "most important" factors which should be

18

"examin[ed] first" (i.e. [ 1] the similarity of the marks, [2] the relatedness of the

19

goods or services, and [3] the use of common marketing channels) weighs heavily

20

in favor of finding a high likelihood of confusion among consumers concerning

21

similar services marked identically in the parties' common market. Broolfzeld v.

22

West Coast, 174 F.3d at 1055 n.16. Furthermore, when considered in light ofthe

23

Even if SCDA did not have such evidence of actual confusion, the importance of
the actual confusion factor "is diminished at the preliminary injunction stage of
the proceedings" because "actual confusion is hard to prove, so the absence of
such evidence is generally not noteworthy." See SunEarth, Inc. v. Sun Earth Solar
Power Co., Ltd., No. 11-4991 CW, 2012 WL 368677, at *11 (N.D. Cal. Feb. 3,
2012) (quoting Rearden LLC v. Rearden Commerce, Inc., 597 F. Supp. 2d 1006,
1023 (N.D. Cal. 2009)).

24
25
26
27
28

Although courts should not apply the foregoing factors "mechanically," the

3

- 13MOTION FOR PRELIMINARY INJUNCTION

1

evidence of Defendant's malicious intent, the remaining factors weigh heavily in

2

SCDA's favor, and none can be said to weigh decisively against it.

3
4
5
6
7
8

Defendants' conduct therefore constitutes a violation of Section 43(a) of the
Lanham Act because they are offering services under the SCDA's Marks without
its consent, thus creating a likelihood of confusion, deception, or mistake that
Defendants' services are provided with SCDA's approval, or that the parties are
otherwise affiliated or related. See Smith, 648 F .2d at 604; High Desert, 92 F .3d
at 818; Minnesota State Archery Association L 66 U.S.P.Q.2d at *6.
c. Defendant Zaffina Is Personally Liable For The Infringing

9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25

Acts.
Defendant Zaffina is personally liable for intentionally selecting SCDA's
Marks when forming Zaffina Co., and for using SCDA's Marks in connection
with competitive darts, which is likely to confuse the public. See High Desert, 92
F.3d at 823. Moreover, as President and CEO ofZaffina Co., Defendant Zaffina
is personally liable for any trademark infringement that he directed or authorized.

See Transgo, Inc. v. Ajac Transmission Parts Corp., 768 F.2d at 1021 (9th Cir.
1985) (affirming personal liability of a corporation's president and sole
stockholder for acts of unfair competition that he directed and authorized);

Playboy Enters., Inc. v. Chen, No. CV 96-3417 DDP (VAPx) 45 U.S.P.Q.2D
1400 1997 WL 829339 at *18 (C.D. Cal. 1997) (liability of sole shareholder,
officer, and director of a corporation "in no way depends on piercing the corporate
veil or alter ego. It is grounded rather on the Lanham Act's reference to 'any
person' who violates elements of the statute.") (citing 3 J. McCARTHY,
TRADEMARKS AND UNFAIR COMPETITION § 25:24 (4th ed.))
d. Defendants' Reliance On Its Incorporation As A Basis For
Its Infringing Conduct Is Without Merit.

26
27
28

- 14MOTION FOR PRELIMINARY INJUNCTION

1

The only apparent justification that Defendants have proffered for their

2

flagrant appropriation of SCDA's Marks is their theory that registering a name

3

with the California Secretary of State conferred upon them the unmitigated right

4

to use the registered name. Defendants' position is without merit. "Since rights to

5

a trade name, like a trademark, arise from prior usage, the fact that a junior user

6
7

8
9
10
11
12

obtained a fictitious name certificate or has a corporate charter for his name is no
defense to an action for unfair competition or trade name infringement brought by
the owner of a prior conflicting trade name." Am . Petrofina, Inc. v. Petrofina of

California, Inc., No. CV 74-3330, 189 U.S.P.Q. 67, 82, 1975 WL 21190 (C.D.
Cal. Dec. 3, 1975) aff'd, 596 F.2d 896 (9th Cir. 1979). In California, filing of
articles of incorporation or fictitious business names establishes only a rebuttable
presumption that the registrant is entitled to use its name. See CAL Bus. & PROF.
CODE § § 14411, 14415. This presumption may be rebutted by proof of Plaintiff's

13

common law rights to the name. Pipers v. Holiday Inns, Inc., No. C 79-1716 SW,

14

215 U.S.P.Q. 466, 1981 WL 48158, at *3 (N.D. Cal. Mar. 17, 1981) aff'd, 685

15

F.2d 445 (9th Cir. 1982); see also 1 J. McCARTHY, TRADEMARKS AND UNFAIR

16

COMPETITION§ 9:8 (4th ed.) ("Since rights to a corporate name, like a trademark,

17

arise from prior usage, the fact that a junior user has a corporate charter for his

18

name is no defense").

19

Because SCDA has established rights to its trade name and other marks

20

through fifty years of continual use, Defendants' claim that it can usurp those

21

rights simply by registering a similar name with the California Secretary of State

22

is without merit.

23
24
25
26
27
28

2.

State-Law Claims

The conduct described above - federal trademark infringement and federal
unfair competition - constitutes violations of California Business & Professions
Code§ 17200 as well as common law unfair competition under California law.

New West Corp. v. NYM Co. of Cal., Inc., 595 F.2d 1194, 1201 (9th Cir. 1979).

- 15 MOTION FOR PRELIMINARY INJUNCTION

1

SCDA's state law claims similarly provide for injunctive relief. See, e.g.,

2

CAL. Bus. & PROF. CODE§ 17203 ("Any person who engages, has engaged, or

3

proposes to engage in unfair competition may be enjoined in any court of

4

competent jurisdiction."). "In California a non-profit organization may maintain a

5
6
7

8
9

10
11

suit for 'unfair competition' to protect its tradename." Ball v. Am. Trial Lawyers

Assn., 14 Cal. App. 3d 289, 300-01, 92 Cal. Rptr. 228, 235 (Ct. App. 1971).
The analysis for SCDA's federal and state law causes of action focuses on
the same central issue: likelihood of confusion. "As a general matter, trademark
claims under California law are 'substantially congruent' with federal claims and
thus lend themselves to the same analysis." Grupo Gigante SA De CV v. Dallo &

Co., Inc., 391 F.3d 1088, 1100 (9th Cir. 2004) (citation omitted); Accuride Intern.,
Inc. v. Accuride Corp., 871 F.2d 1531, 1538 (9th Cir. 1989) ("[Plaintiffs] causes

12

of action for statutory unfair competition under Cal. Bus. & Prof. Code § 17200

13

and for common law unfair competition are similarly dependent upon a showing

14

of likelihood of confusion."). The same arguments, evidence, and authorities

15

relied upon above are equally applicable to SCDA's state law claims.

16
17
18

C.

SCDA Will Suffer Irreparable Harm and Has No Adequate
Remedy at Law If the Court Does Not Issue an Injunction

The preliminary injunction standard further requires SCDA to show it is

19

"likely to suffer irreparable harm in the absence of preliminary relief, that the

20

balance of equities tips in [its] favor, and that an injunction is in the public

21

interest." Winter v. Natural Res. Def Council, Inc., 555 U.S. 7, 20, 129 S. Ct.

22

365, 374, 172 L. Ed. 2d 249 (2008).

23
24
25
26
27
28

The likelihood of "irreparable injury may be presumed from a showing of
likelihood of success on the merits." Marlyn Nutraceuticals, Inc. v. Mucos

Pharma GmbH & Co., 571 F.3d 873, 877 (9th Cir. 2009) (quoting El Pollo Loco,
Inc. v. Hashim, 316 F.3d 1032, 1038 (9th Cir. 2003). More specifically, "once the
plaintiff establishes a likelihood of confusion, it is ordinarily presumed that the
- 16MOTION FOR PRELIMINARY INJUNCTION

1 plaintiff will suffer irreparable harm." Vision Sports, Inc. v. Melville Corp., 888
2
3
4

5

6
7
8

9

10
11
12

F.2d 609, 612 n.3 (9th Cir. 1989).
In this case, SCDA has established a high likelihood of confusion on all of
its claims, and this, in itself, should satisfY the requirement for irreparable harm.
But even without the benefit of such a presumption, SCDA can affirmatively
establish its risk of suffering immediate, on-going, and irreparable harm.
First, many Host Pubs have already revoked their sponsorships and asked
Association Members not to play under the SCDA trade name, on the basis of
Defendants' representations that Zaffina Co. "owns" the name. (Irete Decl., ~~
32.) This has stymied Plaintiffs main purpose, which is to organize competitive
darts play. Moreover, SCDA has lost and continues to lose the monetary benefit
of the sponsorship fees, and, in some cases, member dues paid by Host Pubs. (Id.
at~ 35.) As a result, SCDA had to cancel the fall2012 league. (Id.)

13

In addition, SCDA has spent decades developing the goodwill and

14

reputation of its darts services. (Irete Decl., ~~ 2-5.) SCDA suffers irreparable

15

harm because the value of its reputation is diminished as a result ofDefendants'

16

conduct. Defendants are also interfering with SCDA' s ability to control the

17

reputation ofSCDA's trade name as well as the public perception ofSCDA's

18

services. (Irete Decl., ~ 36.) IfDefendants are left unchecked, SCDA will

19

encounter great difficulty restoring and maintaining its goodwill and reputation

20

with the public-which, by its very nature, is an irreparable injury. Steinway &

21

Sons v. Robert Demars & Friends, 10 U.S.P.Q. (BNA) 954, 1981 U.S. Dist.

22

LEXIS 15169, *20-21 (C.D. Cal. Jan. 28, 1981); see also Rent-A-Center, Inc. v.

23
24
25
26
27
28

Canyon Television & Appliance, 944 F.2d 597, 603 (9th Cir. 1991) ("[I]ntangible
injuries, such as damage to ... goodwill, quality as irreparable harm").

D.

The Balance of Hardships Tips Heavily In Favor of SCDA

Traditional principles of equity also involve an analysis of the relative
balance of hardships between SCDA and Defendants. On the one hand, Plaintiff
- 17MOTION FOR PRELIMINARY INJUNCTION

1

has shown both (1) its investment in establishing reputation and goodwill among

2 the darts community in the United States and abroad, as well as (2) actual
3

confusion caused by Defendants' infringing activities and threat of ongoing

4

consumer confusion. For these reasons, allowing Defendants to market similar

5

services through the use of marks that are identical to SCDA's established trade

6
7

8
9
10
11
12
13

name and SCDA marks would impose a significant hardship.
On the other hand, issuing a preliminary injunction would only preclude
Defendants from marketing or advertising their services as "Southern California
Darts Association" and the related trade names used by SCDA. However, they
would be free to market their new, for-profit darts league under other, unrelated
names. As Defendants have not yet established any league play, they could easily
change their website and other promotional materials to reflect another name.
For these reasons, the balance of hardships tips in SCDA's favor and the
injunction should be issued on these grounds as well.

14

E.

15

One of the purposes of an interim injunction is to preserve the status quo.

The Injunction Will Preserve the Status Quo

16

Chalkv. United States Dist. Ct., 840 F.2d 701,704 (9th Cir. 1988). The

17

injunction here will serve to preserve the status quo ante litem-i.e., the status at

18

the time when Defendants were not using Plaintiffs Southern California Darts

19

Association marks without SCDA's consent. Go To. com v. Disney, 202 F.3d at

20

1210 ("The status quo ante litem refers not simply to any situation before the

21

filing of the lawsuit, but instead to 'the last uncontested status which preceded the

22

pending controversy."') (citing Tanner Motor Livery, Ltd. v. Avis, Inc., 316 F.2d

23

804, 809 (9th Cir. 196.3)).

24

F.

25

Under Federal Rule of Civil Procedure 65( c), the Court has wide discretion

26
27
28

A Bond Should Not Be Required

in setting a bond as a condition to preliminary injunctive relief, including the
option of not requiring a bond at all. See, e.g., Moltan Co. v. Eagle-Picher Indus.,
- 18MOTION FOR PRELIMINARY INJUNCTION

1 Inc., 55 F.3d 1171, 1176 (6th Cir. 1995) (affirming district court's refusal to

2

require any bond based on "the strength of [plaintiffs] case and the strong public

3

interest involved"). Given the high likelihood of success on the merits as

4

demonstrated above, SCDA should not be required to post a bond. Moreover,

5

6

7

SCDA is a non-profit association with a miniscule operating budget, and it would
invoke an undue hardship if it were required to post one. (Irete Decl., ~ 37.)

IV.

CONCLUSION
Therefore, SCDA respectfully requests that this Court issue an Order

8
9

10

enjoining Defendants, pending final judgment in this matter, from: (1) using the
SCDA Marks in any manner; (2) using any internet or other URLs containing the
words "Southern California Darts Association," "SCDA," or "SoCal Darts"; (3)

11

representing to the public, including but not limited to Association Members and

12

Host Pubs, that Defendants have rights to the SCDA Marks. SCDA also requests

13

that the order affirmatively require Defendants to: (1) file a notice of

14

discontinuance of the trade name or a change of corporation name with the

15

Secretary of State; and (2) issue a notice to the Host Pubs, Association Members,

16

and other darts organizations containing a fair summary of this court's decision,

17

attached to the Proposed Order as Exhibit A.

18
19
20
21

22
23

Dated: March 19, 2012

KA WAHITO SHRAGA & WESTRICK LLP
James K. Kawahito
By: /s/ James Kawahito
Attorneys for Plaintiff Southern California Darts
Association

24
25
26
27

28

- 19MOTION FOR PRELIMINARY INJUNCTION