Brian Lichtenberg LLC et al v. Alex & Chloe Inc et al
Filing
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ORDER DENYING 19 PLAINTIFFS EX PARTE APPLICATION FOR A TEMPORARY RESTRAINING ORDER WITHOUT PREJUDICE by Judge Dean D. Pregerson. (lc). Modified on 10/25/2013 (lc).
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UNITED STATES DISTRICT COURT
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CENTRAL DISTRICT OF CALIFORNIA
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BRIAN LICHTENBERG,LLC, a
California limited liability
company; BRIAN LICHTENBERG,
an individual,
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Plaintiff,
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v.
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ALEX & CHLOE, INC., a
California corporation;
CHRISTOPHER WALTER
LICHTENBERG, an individual;
MARKED SHOWROOM, LLC, a
Californai limited liability
company; JACQUELINE YI, an
individual; TU TRAN, an
individual KYLE MOCKETT, an
individual; KAYTEE ENRIGHT,
an individual,
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Defendants.
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Case No. CV 13-06837 DDP (PJWx)
ORDER DENYING PLAINTIFFS’ EX
PARTE APPLICATION FOR A TEMPORARY
RESTRAINING ORDER
[Dkt. No. 19]
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Presently before the court is Plaintiffs Brian Lichtenberg,
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LLC and Brian Lichtenberg’s Ex Parte Application for a Temporary
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Restraining Order.
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parties, the court denies the Application.
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I.
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Having considered the submissions of the
Background
Plaintiff Brian Lichtenberg (“Brian”) designs clothing and
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accessories and distributes his products through Brian Lichtenberg,
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LLC.
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brands, such as “Homiès” as a play on “Hermès” and “Bucci,” a
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parody of “Gucci.”
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font, and other elements of the luxury brand designs.
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shirts, sweatshirts, beanies, and hats bearing the various spoof
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designs.
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celebrities and recognized by the public as Brian’s work.
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Brian’s designs include a series of parodies of designer
Brian’s spoof or parody logos mimic the style,
Brian sells
Brian alleges that his designs are frequently worn by
Brian’s younger brother, Defendant Christopher Walter
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Lichtenberg (“Chris”) is the CEO of Defendant Alex and Chloe, Inc.
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(“A&C”), which operates a website of its own (the “AC website”).
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In 2011, Brian allowed Chris to take orders for Brian’s apparel on
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the AC website.
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collect from the consumer and distribute fifty percent of the
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proceeds to Brian.
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promotional pictures of Brian’s products directly on the AC website
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in an effort to increase traffic to the site.
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Brian would fill orders taken by Chris, who would
In mid-2011, Brian allowed Chris to post
Brian alleges that in early 2012, he came up with the idea to
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parody the luxury brand “Balmain,” and created a drawing for a
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design in the style of the Balmain logo but reading “Ballin Paris”
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(the “Ballin Design,” “Design,” or “Ballin”).
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showed the Design to Chris in confidence in March 2012.
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Brian claims that he
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In late 2012 or early 2013, Brian hired Chris as an employee.1
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Chris performed graphic design duties and provided assistance with
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marketing and promotional activities.
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Chris helped Brian craft and send an e-mail reading, “Ballin’ With
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My Homies” to Brian’s fashion industry contacts to promote Brian’s
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forthcoming line of Ballin apparel.2
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As part of these duties,
Between January 21 and January 31 2013, Chris called in sick
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to work several times.
During that time, Chris contacted Brian’s
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manufacturer in China.
(Declaration of Flair Xu.)
Chris placed
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large orders for labels and garments with the same measurements and
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specifications as Brian’s products, purportedly for use in a new
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clothing line that would be sold “with [Brian]” but on the A&C
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label.
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allegedly sent samples of A&C-labeled Ballin apparel to Brian’s
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industry contacts.3
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(Xu Decl. ¶¶ 19-21.)
During that same ten day span, Chris
On February 1, 2013, Chris and/or A&C posted images of apparel
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featuring the Ballin design on social media.
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apparel was listed for sale on the AC website soon after.
A&C-labeled Ballin
At some
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The record is unclear on when Chris became an employee.
Brian’s declaration states both that Chris began work on January
21, 2013 and that Brian was able to afford Chris’ services in
December 2012. Brian’s declaration further states that Chris
“helped” with a “Ballin” marketing campaign in November. The
Application for a TRO claims that Chris was an employee in November
2012, but also that Chris became a full-time employee in January
2013.
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While the Application asserts that Chris was assigned to
convert Brian’s hand-drawn Ballin Design into electronic format,
the portion of Brian’s declaration cited does not support that
contention.
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At least one of these contacts, Ben Taylor, later forwarded
his correspondence with Chris to Brian. (B. Lichtenberg Decl., Ex.
25.)
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later point in time, Brian brought his own Ballin apparel to market
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on his BLTEE label.
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identical apparel bearing the Ballin Design.
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Both Brian and Chris currently sell virtually
As early as March 14, 2013, Chris and/or A&C sent cease and
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desist letters to Brian’s distributors, claiming that Chris
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invented the Ballin Design and demanding that distributors cease
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selling Brian’s Ballin products.
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social media presence, with which he frequently claimed to be the
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author of the design and stated that Brian stole the Ballin design
Chris also maintained an active
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from him.
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Ballin Paris design was made by us here at [A&C], not#LyinBrian lol
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. . . .”.)
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(See, e.g. id. ¶ 131 (“no confusion necessary.
The
Brian frequently posted images of celebrities and models
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wearing Brian’s Ballin merchandise on social media pages.
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some of these personalities expressly granted Brian permission to
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post the photographs.
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several cases, identical images soon appeared on A&C’s pages,
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usually identifying the garments depicted as “an original Alex &
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Chloe Ballin Paris design,” “by Alex & Chloe,” or other words to
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that effect.
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authorize Chris to use the images.
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depicted in an image posted to an A&C website went so far as to
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comment that she was wearing one of Brian’s sweatshirts, not an A&C
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product.
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design including this sweatshirt you are wearing is an Original and
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Official design by [A&C] NOT [Brian] . . . .”
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(B. Lichtenberg Decl. ¶¶ 126, 133.)
(Id. ¶¶ 133-144.)
(Id. ¶ 131.)
At least
In
The subjects of the photos did not
In one instance, a model
A&C responded, “[a]ctually the BALLIN PARIS
(Id.)
In March 2013, Plaintiffs filed a suit against Chris and A&C
in Los Angeles County Superior Court.
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Plaintiffs obtained a
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temporary restraining order, but were not successful in their
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motion for a preliminary injunction.
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their state court action and, on September 17, 2013, filed the
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instant suit in this court.
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causes of action against Defendants, including causes of action
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under state law and the Lanham Act, 15 U.S.C. §1125.
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now seek a Temporary Restraining Order (“TRO”).
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II.
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Plaintiffs then dismissed
Plaintiffs’ complaint alleges seven
Plaintiffs
Legal Standard
A temporary restraining order is meant to be used only in
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extraordinary circumstances.
To establish entitlement to a TRO,
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the requesting party must show (1) that she is likely to succeed
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on the merits, (2) that she is likely to suffer irreparable harm
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in the absence of preliminary relief, (3) that the balance of
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equities tips in her favor, and (4) that an injunction is in the
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public interest.
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7, 20 (2008).
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combination of probable success on the merits and the possibility
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of irreparable harm, or (2) raises serious questions and the
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balance of hardships tips in favor of a TRO.
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Continental Air Lines, Inc., 819 F.2d 935, 937 (9th Cir. 1987).
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“These two formulations represent two points on a sliding scale in
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which the required degree of irreparable harm increases as the
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probability of success decreases.”
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however, the party must demonstrate a “fair chance of success on
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Winter v. Natural Res. Defense Counsel, 555 U.S.
A TRO may be warranted where a party (1) shows a
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Id.
See Arcamuzi v.
Under both formulations,
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the merits” and a “significant threat of irreparable injury.”4
Id. III.
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Discussion
Plaintiffs have provided extensive evidentiary support for
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their Application in the form of declarations, e-mails,
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photographs, and screen shots spanning approximately one thousand
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pages.
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thoroughly.
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Application focuses on unfair competition under the Lanham Act.
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Plaintiffs’ Complaint, however, lumps together Lanham Act claims
Plaintiffs’ legal theories, however, are developed less
Much of Plaintiffs’ memorandum in support of their
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for trademark infringement, trade dress infringement, false
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designation of origin, and trademark dilution into one single
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cause of action.
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focus on the trademark claim.
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entitled to protection of its unregistered trademark names . . .
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.”).)
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Plaintiff’s Application for a TRO appears to
(App. at 16 (“Plaintiffs are
The analysis for an unregistered trademark is similar to that
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for trade dress.
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F.3d 819, 824 (9th Cir. 1993).
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unregistered trademark or trade dress is nonfunctional, is
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distinctive or has acquired secondary meaning, and that a
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defendant’s use of a similar mark or trade dress is likely to
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confuse consumers.
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Int’l Jensen, Inc. v. Metrosound U.S.A., Inc., 4
Plaintiffs must show that an
Id. at 824-25.
Plaintiffs’ Application and Complaint, however, do not
clearly identify the particular mark or trade dress that forms the
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Even under the “serious interests” sliding scale test, a
plaintiff must satisfy the four Winter factors and demonstrate
“that there is a likelihood of irreparable injury and that the
injunction is in the public interest.” Alliance for the Wild
Rockies v. Cottrell, 632 F.3d 1127, 1135 (9th Cir. 2011).
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basis of Plaintiffs’ unfair competition claim.
Plaintiffs’
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Application, for example, refers to unregistered marks “Ballin
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Paris,” “Homies,” “Fèline,” “Caninè,” and “Bucci,” but also the
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“cut, color, style, fabric, stitching, label sizes, text, logo
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placement, font, and packaging” of Brian’s products.
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‘Ballin Paris’” (Compl. ¶ 102,), but immediately thereafter refers
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to wrongful appropriation of “fabrics, stitching, and label
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location” (Compl. ¶ 103), and yet elsewhere defines the “BRIAN
(App. at 14,
The complaint refers in one place to “the name ‘Ballin’ and
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LICHTENBERG Trademark” as comprised of “fashion apparel,
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merchandise and accessories.” (Compl. ¶ 22.)
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sense of which marks or trade dress Plaintiffs seek to protect, it
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is impossible for this court to analyze functionality,
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distinctiveness, or likelihood of confusion, and thus to determine
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the likelihood that Plaintiffs will succeed on the merits of any
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of their infringement claims.5
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Without a better
Plaintiffs also seek a TRO on the basis of their Lanham Act
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false advertising claim, California Uniform Trade Secrets Act
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claim, and intentional interference with contract and prospective
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economic relations claims.
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contesting authorship of the Ballin Design, Defendants’ opposition
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does not address these claims.
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far less attention to these claims than the infringement claims,
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the record presented could support a finding of likely success on
Beyond generally and conclusorily
While Plaintiffs themselves devote
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Plaintiffs cannot possibly hope, for example, to succeed on
a claim that they have a claim to a trademark in “fashion apparel,
merchandise and accessories.” Some combination of the various
elements identified above, however, might conceivably warrant
trademark or trade dress protection.
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the merits.
There is ample evidence that Chris appropriated
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Brian’s promotional photos and made statements claiming or
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suggesting that the apparel depicted therein was his, not Brian’s.
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See Southland Sod Farms v. Stover Seed Co., 108 F.3d 1134, 1139
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(9th Cir. 1997) (listing elements of Lanham Act false advertising
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claim).
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Brian’s customers, encouraged them to stop doing business with
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Brian, and claimed Brian is a thief.
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Lockheed Martin Corp., 29 Cal. 4th 1134, 1153 (2003) (listing
It also appears beyond dispute that Chris contacted
See Korea Supply Co. v.
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elements of intentional interference with prospective economic
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advantage claim); Quelimane Co. v. Stewart Title Guaranty Co., 19
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Cal. 4th 26, 55 (1998) (listing elements of interference with
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contract claim).
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Nevertheless, the court does not address Plaintiffs’
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likelihood of success in further depth because Plaintiffs have
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failed to adequately show irreparable harm.
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irreparable harm, courts should take into account whether a movant
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“proceeded as quickly as it could have” in seeking a TRO.
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Inc. v. Samsung Electronics Co., Ltd., 678 F.3d 1314, 1325 (Fed.
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Cir. 2012) (analyzing a preliminary injunction).
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stage, courts consider whether the movant would have been able to
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file a noticed preliminary injunction motion had it acted
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diligently.
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2:11–CV–02873–MCE, 2011 WL 5374748, at *4 (E.D. Cal. Nov.4, 2011)
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(denying application for TRO for twenty-five day delay); Mammoth
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Specialty Lodging, LLC v. We-Ka-Jassa Inv. Fund, LLC, CIVS10-0864
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LKK/JFM, 2010 WL 1539811, at *2 (E.D. Cal. Apr. 16, 2010); Rosal
In analyzing
Apple,
At the TRO
See, e.g., Occupy Sacramento v. City of Sacramento,
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v. First Fed. Bank of California, No. C 09-1276 PJH, 2009 WL
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837570, at *2 (N.D. Cal. Mar. 26, 2009).
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Here, the vast majority of Chris’ alleged misappropriation of
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photographs and wrongful contact with Brian’s distributors and
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customers appears to have taken place in between February and
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April 2013, approximately six to eight months ago.
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recent such instance appears to have occurred on May 18, 2013,
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over five months ago.
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Plaintiffs attribute the roughly thirty-day delay between the
The most
(Declaration of Reda Bouaissa ¶ 66.)6
While
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filing of their complaint and the instant Application to the
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necessity of preparing voluminous documentary support, Plaintiffs
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make no attempt to explain why they did not seek preliminary
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relief here until six to eight months after the alleged wrongful
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acts occurred.7
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any evidence, that Chris’ alleged wrongful acts persisted beyond
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May 2013 or are continuing.
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conclude that Plaintiffs will suffer irreparable harm in the
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absence of a TRO.
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Plaintiffs do not contend, nor has the court found
Accordingly, the court cannot
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The court notes that Plaintiffs’ citations to the record in
support of their showing of irreparable harm are extremely
unfocused. Plaintiffs cite, for example, over a dozen exhibits and
approximately one hundred paragraphs of witness declarations for
the proposition that Chris’ actions are currently doing injury to
Brian’s reputation. Several of Plaintiffs’ citations, however, are
completely unrelated to that claim. (See, e.g., B. Lichtenberg
Decl. ¶ 72 (“On or about January 25, 2013, I learned that Chris was
still sick from the day before and was ‘bed ridden’ and feeling
horrible.”)
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The state court denied Plaintiffs preliminary injunctive
relief on April 19, 2013. (Defendendants’ Request for Judicial
Notice, Ex. J.)
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IV.
Conclusion
For the reasons stated above, Plaintiffs’ Application for a
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Temporary Restraining Order is DENIED, without prejudice.
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IT IS SO ORDERED.
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Dated:
October 25, 2013
DEAN D. PREGERSON
United States District Judge
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