Romye Robinson et al v. Delicious Vinyl Records Inc et al

Filing 16

MINUTES (IN CHAMBERS) by Judge Christina A. Snyder: The Court denies Plaintiffs' Ex Parte Application for a Temporary Restraining Order 7 . Although the Court finds that a temporary restraining order should not issue at present, the Court ORDER S defendants to show cause as to why a preliminary injunction should not issue. Plaintiffs' are ordered to serve a copy of this minute order on defendants forthwith. The Court sets the following hearing and briefing schedule for plaintiffs' request for a preliminary injunction: Defendants must file an opposition to plaintiffs' request for a preliminary injunction by 5/24/2013. Plaintiffs may file a reply to defendants' opposition, if any, by 7/1/2013. A hearing regarding plaintiffs' request for a preliminary injunction will take place on 7/8/2013 at 10:00 AM. Court Reporter: Not Present. (gk)

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.

CV 13-4111 CAS (PLAx)

Title

ROMYE ROBINSON, ET AL. V. DELICIOUS VINYL RECORDS,
LLC, ET AL.

Present: The Honorable

Date

June 18, 2013

CHRISTINA A. SNYDER

Catherine Jeang
Deputy Clerk

Not present
Court Reporter / Recorder

N/A
Tape No.

Attorneys Present for Plaintiffs:

Attorneys Present for Defendants

Not present

Not present

Proceedings:

I.

(In Chambers:) PLAINTIFFS’ EX PARTE APPLICATION
FOR TEMPORARY RESTRAINING ORDER (filed June 12,
2013) [Dkt. No. 7]

INTRODUCTION & BACKGROUND

On June 7, 2013, plaintiffs Romye Robinson and Imani Wilcox filed suit against
defendants Delicious Vinyl Records, LLC, (“DVR”), Trevant Hardson, and Derrick
Stewart. Plaintiffs’ complaint asserts the following fourteen claims for relief: (1) breach
of the Settlement/Dissociation Agreement; (2) breach of the Tour Agreement; (3) breach
of the Recording Contract; (4) common law trademark infringement of the Pharcyde
mark; (5) common law trademark infringement of the Bizarre Ride mark; (6) violation of
right of publicity pursuant to Cal.Civ. Code § 3344; (7) violation of common law right of
publicity; (8) unfair competition pursuant to 15 U.S.C. § 1125(a); (9) unfair competition
pursuant to Cal. Bus. & Prof. Code §17200; (10) false advertising pursuant to Cal. Bus. &
Prof. Code § 17500; (11) unjust enrichment; (12) injunctive relief; (13) accounting; and
(14) declaratory relief.
Plaintiffs and defendants Stewart and Hardson were all original members of the
musical group Pharcyde. Stewart and Hardson allegedly left the band in 1997 and 1999,
respectively. By reason of a series of agreements between the parties, plaintiffs contend
that they are the sole owners and have the sole right to make use of the Pharcyde common
law trademarks and service marks, including the PHARCYDE and BIZARRE RIDE II
THE PHARCYDE.

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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.

CV 13-4111 CAS (PLAx)

Date

June 18, 2013

Title

ROMYE ROBINSON, ET AL. V. DELICIOUS VINYL RECORDS,
LLC, ET AL.

However, defendants have allegedly continued to use the Pharcyde marks for
promoting their own concerts, in violation of plaintiffs’ rights under federal trademark
law and in breach of the parties’ agreement. In particular, Hardson and Stewart have
scheduled live performances in various cities under the name “The Pharcyde” a few days
or weeks prior to a scheduled concert by plaintiffs in the same city. According to
plaintiffs, these incidents have led to confusion among consumers and caused plaintiffs to
suffer lost revenues. This alleged practice is ongoing; defendants have scheduled their
next concert under The Pharcyde name for June 20, 2013.
On June 13, 2013, plaintiffs filed the instant ex parte application for a temporary
restraining order (“TRO”). Dkt. No. 7. Plaintiffs seek an order from this Court enjoining
defendants from continuing to use plaintiffs’ protected marks. Defendants have yet to
file a response.
II.

LEGAL STANDARD

The standards for issuing a temporary restraining order and a preliminary
injunction are “substantially identical.” Stuhlbarg Int’l Sales Co. v. John D. Brushy &
Co., 240 F.3d 832, 839 n.7 (9th Cir. 2001). A preliminary injunction is an “extraordinary
remedy.” Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 24 (2008). “A plaintiff
seeking a preliminary injunction must establish 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.” Am.
Trucking Ass’n, Inc. v. City of Los Angeles, 559 F.3d 1046, 1052 (9th Cir. 2009); see
also Cal Pharms. Ass’n v. Maxwell-Jolly, 563 F.3d 847, 849 (9th Cir. 2009).
Alternatively, “‘serious questions going to the merits’ and a hardship balance that tips
sharply toward the plaintiff can support issuance of an injunction, assuming the other two
elements of the Winter test are also met.” Alliance for the Wild Rockies v. Cottrell, 632
F.3d 1127, 1132 (9th Cir. 2011). A “serious question” is one on which the movant “has a
fair chance of success on the merits.” Sierra On-Line, Inc. v. Phoenix Software, Inc., 739
F.2d 1415, 1421 (9th Cir. 1984).

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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.

CV 13-4111 CAS (PLAx)

Title

ROMYE ROBINSON, ET AL. V. DELICIOUS VINYL RECORDS,
LLC, ET AL.

III.

Date

June 18, 2013

ANALYSIS

Irrespective of the merits of plaintiffs’ claims, the Court concludes that plaintiffs
have not demonstrated that they are likely to suffer irreparable injury that justifies
immediate, ex parte relief. Plaintiffs state that they first sent cease and desist letters
concerning defendants’ use of the Pharcyde marks in February and June of 2012, and that
defendants’ alleged misconduct has been ongoing throughout this time. See Decl. of
Romye Robinson ¶¶ 15–16. Given the timespan that has elapsed since February and June
2012, plaintiffs have not shown that there is an emergency that will lead to “immediate
and irreparable injury” if a temporary restraining order does not issue. See Fed. R. Civ.
Proc. 65. Accordingly, the Court denies plaintiffs’ ex parte application for a TRO.
Although the Court finds that a temporary restraining order should not issue at
present, the Court ORDERS defendants to show cause as to why a preliminary injunction
should not issue. Plaintiffs’ are ordered to serve a copy of this minute order on
defendants forthwith. The Court sets the following hearing and briefing schedule for
plaintiffs’ request for a preliminary injunction:
•

Defendants must file an opposition to plaintiffs’ request for a preliminary
injunction by June 24, 2013.

•

Plaintiffs may file a reply to defendants’ opposition, if any, by July 1, 2013.

•

A hearing regarding plaintiffs’ request for a preliminary injunction will take
place on July 8, 2013, at 10:00 AM, in Courtroom 5 of this Court, located at
312 North Spring Street, Los Angeles CA, 90012.

IT IS SO ORDERED.
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Initials of Preparer

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CMJ

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