Brian Lichtenberg LLC et al v. Alex & Chloe Inc et al

Filing 99

ORDER GRANTING PLAINTIFFS MOTION FOR PRELIMINARY INJUNCTION IN PART AND DENYING IN PART 73 by Judge Dean D. Pregerson: Defendants, and all persons acting in concert with them, are restrained (SEE DOCUMENT FOR SPECIFICS). (lc). Modified on 7/25/2014. (lc).

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1 2 O 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 12 BRIAN LICHTENBERG,LLC, a California limited liability company; BRIAN LICHTENBERG, an individual, 13 Plaintiffs, 14 v. 15 16 17 18 19 20 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, 21 22 Defendants. ___________________________ ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Case No. CV 13-06837 DDP (PJWx) ORDER GRANTING PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION IN PART AND DENYING IN PART [Dkt. No. 73] 23 24 Presently before the court is Plaintiffs’ Motion for 25 Preliminary Injunction. 26 and heard oral argument, the court grants the motion in part, 27 denies the motion in part, and adopts the following order. 28 /// Having considered the parties’ submissions 1 I. Background 2 A. Factual Background 3 As described more extensively in this court’s prior orders, 4 5 Plaintiff Brian Lichtenberg (“Brian”) designs clothing and 6 accessories and distributes his products through Brian Lichtenberg, 7 LLC.1 8 designs include a series of parodies of designer brands, such as 9 “Homiès” as a play on “Hermès” and “Bucci,” a parody of “Gucci.” (Second Amended Complaint (“SAC”) ¶¶ 16-17.) Brian’s 10 (SAC ¶ 18.) 11 and other elements of the luxury brand designs. 12 shirts, sweatshirts, pants, beanies, and hats bearing the various 13 spoof designs. 14 very successful, and are frequently worn by celebrities and 15 featured in the media. 16 17 18 Brian’s spoof or parody logos mimic the style, font, (SAC ¶¶ 16-18.) (Id.) Brian sells Brian alleges that his designs are (SAC ¶¶ 19-22.) Brian’s younger brother, Defendant Christopher Walter Lichtenberg (“Chris”), is the sole shareholder or principal of Defendant Alex and Chloe, Inc. (“A&C”). (SAC ¶¶ 3-4.) 19 20 21 22 23 24 25 26 27 28 The SAC alleges that in January 2012, Brian developed one particular parody design, “Ballin,” as a play on the luxury brand “Balmain.” (SAC ¶ 43.) By November 2012, Chris was working as a “part-time contractor” for Brian. (SAC ¶ 46.) Chris’ duties included graphic design and promotional work related to Brian’s “Ballin with My Homies” project. (Id.) 1 In connection with those Plaintiff Brian Lichtenberg and Defendant Christopher Lichtenberg are brothers. For clarity’s sake, this Order refers to these parties by their first names. Hereinafter, this Order frequently refers to Plaintiffs Brian Lichtenberg and Brian Lichtenberg, LLC, collectively, as “Brian.” 2 1 duties, Chris allegedly had access to confidential lists of Brian’s 2 customers and industry contacts. (SAC ¶ 47.) 3 The SAC alleges that Chris copied and claimed ownership of the 4 “Ballin” design, contacted Brian’s manufacturer and requested that 5 products identical to Brian’s be made under the A&C label, and used 6 Brian’s confidential customer lists to sell the A&C version of the 7 “Ballin” items. (SAC ¶¶ 51-56.) Chris listed his products for 8 sale on the A&C website in late January or early February 2013, 9 before Brian’s “Ballin” products came to market. (Id.) 10 11 Chris repeatedly claimed to own the “Ballin” design via the 12 internet and social media. 13 several of Brian’s buyers, stated that Brian’s “Ballin” products 14 were counterfeits, and asked that retailers stop selling Brian’s 15 “Ballin” products. 16 public statements claiming that Brian had stolen not only the 17 “Ballin” design, but other parody designs as well. 18 At Chris’s request, social media sites removed images of Brian’s 19 “Ballin” apparel posted to Brian’s pages. 20 21 22 23 24 25 (SAC ¶¶ 66-68.) (SAC ¶¶ 58-60; 63-65.) Chris also contacted Chris then made further (SAC ¶¶ 67-68.) (SAC ¶ 73.) Chris and A&C then expanded their offerings to include other products similar to Brian’s, featuring other parody designs beyond “Ballin.” (SAC ¶ 86.) Chris also appropriated photographs of celebrities wearing Brian’s products, then claimed on the A&C website and elsewhere that those celebrities endorsed A&C. 80-82, 84-85.) 26 27 28 B. Procedural History Plaintiffs filed an initial complaint in this court on 3 (SAC ¶¶ 1 September 17, 2013. Plaintiffs filed an ex parte application for a 2 temporary restraining order on October 17, 2013. 3 briefing, this court denied Plaintiffs’ application on October 25, 4 based largely on Plaintiffs’ failure to show any continuing 5 wrongful acts or threat of irreparable harm. 6 Plaintiffs’ Ex Parte Application for a TRO, Dkt. 44 at 8-9.) After full (Order Denying 7 After subsequent motion practice, Plaintiffs filed the Second 8 Amended Complaint on February 28, 2014. Plaintiffs’ SAC alleges 9 nine causes of action against Defendants, including trade dress 10 infringement, unfair competition and false designation of origin, 11 and trademark dilution under Section 43 of the Lanham Act, 15 12 U.S.C. § 1125, as well as state law causes of action, including 13 unfair business practices in violation of California Business & 14 Professions Code Section 17200. This court denied Defendants’ 15 Motion to Dismiss the SAC on April 15, 2014. (Dkt. 72.) 16 Plaintiffs now seek a preliminary injunction enjoining Defendants 17 from utilizing Plaintiffs’ alleged trade dress and customer and 18 manufacturer information, suggesting that pictures of Plaintiffs’ 19 products are in fact Defendants’ products, interfering with 20 Plaintiffs’ business relationships, and publishing statements 21 challenging Plaintiffs’ creation and ownership of the allegedly 22 protected trade dress. 23 24 25 26 27 II. Legal Standard A private party seeking a preliminary injunction must show that: (i) it is likely to succeed on the merits; (ii) it will suffer irreparable harm in the absence of preliminary relief; (iii) 28 4 1 the balancing of the hardships and equities between the parties 2 that would result from the issuance or denial of the injunction 3 tips in its favor; and (iv) an injunction will be in the public 4 interest. 5 (2008). 6 shows a combination of probable success on the merits and the 7 possibility of irreparable harm; or (ii) raises serious questions 8 on such matters and shows that the balance of hardships tips in 9 favor of an injunction. Winter v. Natural Res. Defense Counsel, 555 U.S. 7, 20 Preliminary relief may be warranted where a party: (i) See Arcamuzi v. Continental Air Lines, 10 Inc., 819 F.2d 935, 937 (9th Cir. 1987). “These two formulations 11 represent two points on a sliding scale in which the required 12 degree of irreparable harm increases as the probability of success 13 decreases.” 14 demonstrate a “fair chance of success on the merits” and a 15 “significant threat of irreparable injury” absent the issuance of 16 the requested injunctive relief.2 17 III. Discussion 18 A. 20 21 22 23 24 25 26 27 28 Under both formulations, the party must Id. Likelihood of Success on the Merits 1. 19 Id. Trade Dress Infringement Trade dress, or the “total image of a product,” is protectable under Section 43(a) of the Lanham Act. Int’l Jensen, Inc. v. Metrosound U.S.A., Inc., 4 F.3d 819, 822 (9th Cir. 1993). To succeed on a trade dress infringement claim, which is analytically similar to an unregistered trademark claim, plaintiffs must show that a trade dress is nonfunctional, is distinctive or has acquired 2 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). 5 1 secondary meaning, and that a defendant’s use of a similar mark or 2 trade dress is likely to confuse consumers. Id. at 823. 3 The SAC lays claim to trade dress comprised of (1) humorous 4 logos parodying famous designer names; (2) large block lettering 5 mimicking the font used by the designer; (3) gold, gold foil, pink, 6 pink foil, white, and black lettering on a red, hot pink, orange, 7 black, bright blue, neon yellow, or lavender fabric; (4) 40-weight 8 cotton “with a certain . . . cut, and dying and (enzyme) washing 9 process;” (5) screen printing (with respect to shirts); (6) a 10 “bulky and shapeless look;” (7) labels of a certain material, 11 construction, and size; (8) woven stitching; (9)hangtags with a 12 Century Gothic font; and (10) embroidery (with respect to hats). 13 (SAC ¶ 18.) 14 15 16 17 18 19 20 21 22 23 a. Secondary Meaning Plaintiffs contend that their trade dress has acquired secondary meaning. (Motion at 11.) “To show secondary meaning, a plaintiff must demonstrate a mental recognition in buyers’ and potential buyers’ minds that products connected with the [trade dress] are associated with the same source.” Art Attacks Ink, LLC v. MGA Entm’t Inc., 581 F.3d 1138, 1145 (9th Cir. 2009) (quoting Japan Telecom v. Japaen Telecom Am., 287 F.3d 866, 866-67 (9th Cir. 2002) (internal quotation omitted); see also Clicks Billiards, Inc. v. Sixshooters, Inc., 251 F.3d 1252, 1260 (9th Cir. 2001). 24 25 26 27 28 Here, Plaintiffs confine their argument with respect to secondary meaning to a single sentence. Plaintiffs assert that “as a result of large amounts of resources expended by Plaintiffs on publicity and [] marketing . . ., consumers identify the trade 6 1 dress of Platintiffs’ BLTEE Products as being directly associated 2 with Plaintiffs.” 3 position with citations to declarations provided by Brian and his 4 Head of Sales, Reda Bouissa. 5 spent millions of dollars in marketing through various channels. 6 (Declaration of Reda Bouissa ¶ 11; Declaration of Brian Lichtenberg 7 ¶ 15.) (Mot. at 11:10-13.) Plaintiffs support their Both Declarants state that Brian has 8 Advertising expenditures alone, however, cannot establish 9 secondary meaning. Rather, “the true test of secondary meaning is 10 the effectiveness of the advertising effort.” Art Attacks, 581 11 F.3d at 1146 (citing Int’l Jensen, 4 F.3d at 824) (internal quotation omitted). Though both Brian and Bouaissa state that 12 13 advertising has led consumers and celebrities to “instantly 14 recognize the BLTEE Line” by “feel and appearance,” neither 15 declarant provides any support for such claims. (Bouiassa Decl. ¶ 16 13; B. Lichtenberg Decl. ¶ 16.) Similarly, declarant Jennifer 17 Green, a fashion producer who knows Brian personally and counts him 18 among her clients, states that (1) Brian’s advertising has made him 19 well known to consumers and (2) Brian’s products, particularly 20 “Ballin Paris” products, are identifiable as Brian’s. (Declaration 21 of Jennifer Green ¶¶ 14-15.) 22 23 Even putting aside the apparent lack of foundation for these 24 statements, declarations from Plaintiff and his personal associates 25 are of little probative value. 26 v. Ananda Church of Self-Realization, 59 F.3d 902, 910 (9th Cir. 27 1995). 28 intimate contact with [a plaintiff’s] business do not reflect the Self-Realization Fellowship Church “Attestations from person[s] in close association and 7 1 views of the purchasing public.” 2 Id. (internal quotations and citations omitted). 3 In their Reply, Plaintiffs cite, for the first time, to five 4 additional declarations. Claude Benoualid, an investor who has 5 considered investing in Brian’s company and has been tracking 6 Brian’s increase in popularity “for years,” states that he finds 7 Brian’s products to be unique. (Declaration of Claude Benoualid ¶¶ 8 3, 5-7.) Two boutique owners, who have had ongoing business 9 relationships with Brian for years, state that Brian’s products are 10 popular. (Declaration of Fraser Ross ¶¶ 3, 6; Declaration of 11 Gabriele Bohlen ¶¶ 2-3.) A fashion stylist who has been a 12 professional client of Brian’s “for many years,” and was 13 “immediately impressed with his talents,” states that celebrities 14 often request Brian’s products. (Declaration of Brittany Bardo ¶¶ 15 2-3, 7.) Lastly, a fashion model who has personally known Brian 16 for years and is a “fan” of his products states that Brian is well 17 known for his spoof clothing line. (Declaration of Jasmine Tookes 18 ¶¶ 4, 7.) 19 20 As with the declarations cited initially, these statements 21 shed little light on the perceptions of the consuming public. Even 22 if these statements were sufficient to demonstrate that consumers 23 generally like Brian’s products, that preference does not 24 necessarily establish that the public associates the trade dress at 25 issue here with Brian. 26 Ninth Circuit, “[t]rademark law is skeptical of the ability of an 27 associate of a trademark holder to transcend personal biases to Furthermore, as explained above and by the 28 8 1 give an impartial account of the value of the holder’s mark.”3 2 Self-Realization Fellowship, 59 F.3d at 910. 3 Plaintiffs have not adequately shown, at this stage, that the 4 alleged trade dress has acquired secondary meaning. Plaintiffs 5 have not, therefore, shown a likelihood of success on their trade 6 dress infringement claim.4 7 8 2. 9 As provided in 15 U.S.C. § 25(c): 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 Trade Dress Dilution Subject to the principles of equity, the owner of a famous mark that is distinctive, inherently or through acquired distinctiveness, shall be entitled to an injunction against another person who, at any time after the owner's mark has become famous, commences use of a mark or trade name in commerce that is likely to cause dilution by blurring or dilution by tarnishment of the famous mark, regardless of the presence or absence of actual or likely confusion, of competition, or of actual economic injury.5 15 U.S.C. § 25(c)(1). To prevail, Plaintiffs must show that (1)they own a famous, distinctive mark or dress; (2) Defendants have used a nearly identical mark in commerce after Plaintiffs’ mark became famous, and (3) Defendants’ use is likely to dilute or blur Plaintiffs’ mark. Levi Strauss & Co. v. Abercrombie & Fitch Trading Co., 633 F.3d 1158, 1161 (9th Cir. 2011). cannot be diluted unless it is famous such that is truly prominent and renowned among the general public.” 26 27 28 Apple, Inc. v. Samsung Elec. Co., Ltd., 920 F.Supp.2d 1079, 1097 (N.D. Cal. 2013) (citation and quotation omitted). For the reasons discussed above, 3 25 “[A] trade dress “[T]he analysis for trade dress and an unregistered trademark under section 43(a) of the Lanham Act is very similar.” Int’l Jensen, 4 F.3d at 822. 4 In light of Plaintiffs’ failure to demonstrate secondary meaning, the court need not address functionality or likelihood of confusion. 5 Other remedies beyond injunctive relief may also be available. 15 U.S.C. § 1125(c)(5). 9 1 Plaintiffs have not demonstrated that their trade dress is 2 sufficiently known to the general public. 3 have not shown a likelihood of success on the merits of their trade 4 dress dilution claim. Plaintiffs therefore 5 3. Unfair Competition and False Designation of Origin 6 7 The Lanham Acts prohibits uses in commerce of: 8 any word, term, name, symbol, or device, or any combination thereof, or any false designation of origin, false or misleading description of fact, or false or misleading representation of fact, which -- 9 10 11 12 13 14 15 (A) is likely to cause confusion, or to cause mistake, or to deceive as to the affiliation, connection, or association of such person with another person, or as to the origin, sponsorship, or approval of his or her goods, services, or commercial activities by another person, or (B) in commercial advertising or promotion, misrepresents the nature, characteristics, qualities, or geographic origin of his or her or another person's goods, services, or commercial activities[.] 15 U.S.C. § 1125(a)(1). In other words, “the Lanham Act . . . 16 prohibits the use of false designations of origin, false 17 descriptions, and false representations in the advertizing [sic] 18 and sale of goods and services.” Jack Russell Terrier Network v. 19 Am. Kennel Club, Inc., 407 F.3d 1027, 1036 (9th Cir. 2005). These 20 prohibitions include false endorsements. See Cairns v. Franling 21 Mint Co., 292 F.3d 1139, 1149 (9th Cir. 2002); see also Brown v. 22 Elec. Arts, Inc., 724 F.3d 1235, 1239 n.1 (9th Cir. 2013). 23 24 Plaintiffs’ SAC allages that “Defendants . . . stole press and 25 publicity photos from [Brian] regarding [celebrities] Nina Garcia 26 and Justin Bieber, who were wearing [Brian’s] products. 27 . . . copied and pasted the photos to the A&C website, making it 28 appear such celebrities were wearing the [Defendants’] imitation 10 Defendants 1 products.” (SAC ¶ 80.) The SAC includes other, similar 2 allegations that Defendants misappropriated photographs of 3 celebrities wearing Brian’s products, and specifically names over a 4 dozen celebrities. 5 submitted numerous examples of such uses. 6 Ex. C; Tookes Decl. ¶ 14.) (SAC ¶¶ 81-82, 84-85.) Defendants have (e.g. Green Decl. ¶ 24, 7 False advertising claims under the Lanham Act require five 8 elements: 9 10 11 (1) a false statement of fact by the defendant in a commercial advertisement about its own or another's product; 12 (2) the statement actually deceived or has the tendency to deceive a substantial segment of its audience; 13 (3) the deception is material, in that it is likely to influence the purchasing decision; 14 15 16 17 (4) the defendant caused its false statement to enter interstate commerce; and (5) the plaintiff has been or is likely to be injured as a result of the false statement, either by direct diversion of sales from itself to defendant or by a lessening of the goodwill associated with its products 18 Skydive Arizona, Inc. v. Quattrochi; 673 F.3d 1105, 1110 (9th Cir. 19 2012). Defendants appear to argue that Plaintiffs cannot succeed 20 because Defendants have only referred to the “Ballin Paris” design, 21 as opposed to “Ballin Paris” products. (Opposition at 17.) Thus, 22 Defendants appear to assert, Plaintiffs cannot show that Defendants 23 made any false statements of fact. 24 25 Defendants are mistaken. First, Plaintiffs need not show that 26 a particular statement was literally false. 27 falsity within the meaning of the Lanham Act, a plaintiff may show 28 that the statement was literally false, either on its face or by 11 “To demonstrate 1 implication, or that the statement was literally true but likely to 2 mislead or confuse consumers.” 3 Co., 108 F.3d 1134, 1139 (9th Cir. 1997). Southland Sod Farms v. Sover Seed 4 Plaintiffs provide several examples of Defendants’ false 5 statements. One image from an A&C website, for example, depicts a 6 celebrity wearing one of Brian’s t-shirts in a music video. (Green 7 Decl., Ex. C.) The accompanying text, however, identifies the 8 celebrity as “wearing an ALEX & CHLOE original Ballin Paris 9 design.” (Id.) Such a statement is false by implication or, at 10 best, likely to mislead consumers. Furthermore, Defendants’ 11 contention that all of their communications refer to the “Ballin 12 Paris” design is not borne out by the record. In one instance, for 13 example, a fashion model posed for photos in one of Brian’s 14 sweatshirts outside Brian’s press showroom. (Tookes Decl. ¶ 11.) 15 The model granted Brian permission to use the photos and posted 16 them to her own social media site as well. (Id. ¶¶ 12-13.) Later, 17 the image appeared on A&C’s product sales page, with no limiting 18 reference to a “design,” but rather to a “‘Ballin Paris’ Printed 19 Fleece Sweatshirt by Alex & Chloe.” (Id. ¶¶ 14.) 20 21 Consumers’ confusion and displeasure, and harm to Plaintiffs, 22 is evident from numerous internet posts, as well as from 23 declarations from retailers whose customers demanded refunds. 24 (e.g. Bohlen Decl. ¶¶ 16-17.) 25 likelihood of success on the merits of their unfair competition 26 claim. 27 4. Plaintiffs have demonstrated a high Interference with Economic Relations 28 12 1 The SAC alleges claims for intentional interference with 2 existing contracts and prospective economic relations. An 3 intentional interference with prospective economic relations claim 4 requires (1) an economic relationship between plaintiff and a third 5 party with the probability of future economic benefit to the 6 plaintiff, (2) defendant’s knowledge of that relationship, (3) 7 defendant’s intentional, independently wrongful act to disrupt the 8 relationship, (4) actual disruption, and (5) economic harm to the 9 plaintiff. Marsh v. Anesthesia Serv. Med. Group. Inc., 200 10 Cal.App.4th 480, 504 (2011) (citing Korea Supply v. Lockheed Martin 11 Corp., 29 Cal.4th 1134, 1153 (2003)). 12 intentional interference with contract claim are similar. 13 Quelimane Co. v. Stewart Title Guar. Co., 19 Cal.4th 26, 55 (1998). 14 The elements of an See Plaintiffs have offered extensive evidence that Chris 15 contacted Brian’s customers and urged them to buy A&C products 16 instead of Brian’s products. 17 sent cease and desist letters to sellers of Brian’s products, 18 stating that Chris, and not Brian, created the “Ballin Paris” line 19 of products. (Bouaissa Decl. ¶ 23.) Chris also (Ross Decl. ¶ 7.) 20 Defendants’ position regarding the intentional interference 21 claims is difficult to discern. Defendants argue that these claims 22 cannot succeed because Plaintiffs do not have protectable trade 23 dress and because A&C released its allegedly infringing products 24 first. (Opp. at 20). The relevance of these arguments, which are 25 not supported by any authority or evidence, beyond Chris’ 26 declaration that he released his products first, is unclear. 27 Plaintiffs’ intentional interference claims appear likely to 28 13 1 succeed. 2 5. California Uniform Trade Secrets Act 3 To prevail on a claim under California’s Uniform Trade 4 5 Secrets Act (“CUTSA”), California Civil Code § 3426, a plaintiff 6 must show that (1) he owned a trade secret, (2) the defendant 7 acquired, used, or disclosed that secret through improper means, 8 and (3) the plaintiff was damaged. 9 Pharms., Inc., 160 Cal. App. 4th 288, 297 (2008). Cytodyn, Inc. V. Amerimmune The California 10 Civil Code defines “trade secret” as information that “(1) 11 [d]erives independent economic value . . . from not being generally 12 known to the public . . .; and (2) [i]s the subject of efforts that 13 are reasonable under the circumstances to maintain its secrecy.” 14 Cal. Civ. Code § 3426.1(d). 15 and manufacturer lists, and the parody names “Ballin” and “Ballin 16 Paris,” were trade secrets. 17 18 19 20 21 22 23 24 Plaintiffs assert that their customer (SAC ¶¶ 104-106.) “It is well-established that a customer list may constitute a protectable trade secret.” Gable Leigh, Inc. v. North Am. Miss; No. CV 01-01019 MMM(SHX); 2001 WL 521695 at *15 (C.D. Cal. Apr. 13, 2001). “[W]here the employer has expended time and effort identifying customers with particular needs or characteristics, courts will prohibit former employees from using this information to capture a share of the market.” Mor-Life, Inc. v. Perry, 56 Cal. App. 4th 1514, 1521 (1997). 25 26 27 28 The evidence regarding Plaintiffs’ CUTSA claim is less extensive than that regarding other claims. Brian states that the customer lists are a compilation of company names, contact people, 14 1 notes, and contact information, some of which is non-public. 2 Lichtenberg Decl. ¶ 26.) Brian further states that the lists took 3 years to compile. Both Brian and his Head of Sales told 4 Chris that the contact lists were confidential. 5 Bouiassa Decl. ¶ 19.) (Id.) (B. (Id. ¶ 28; 6 Defendants’ contention that “Defendants contacted vendors 7 already carrying the parody line” appears to suggest that Chris 8 could not have appropriated trade secrets because he only contacted 9 stores that were already and publicly carrying Brian’s products. 10 (Opp. at 21.) That fact, however, has no bearing on whether Chris 11 improperly used confidential information, such as private e-mail 12 addresses and phone numbers, or Brian’s customer notes, in reaching 13 out to those stores. Plaintiffs have shown some evidence that the 14 lists were the product of Brian’s time and effort, and that Brian 15 and his staff took steps to preserve the secrecy of the lists. 16 Plaintiffs have shown a likelihood of success on the CUTSA claim. 17 6. 18 19 20 21 22 23 24 25 26 Defamation Plaintiffs have submitted evidence that Brian developed the “Ballin” design in January 2012. 2.) (B. Lichtenberg Decl. ¶ 30, Ex. Chris left Brian’s employ and began selling his own “Ballin” products in January 2013. Plaintiffs provide numerous examples of Defendants’ statements that Brian did not develop the “Ballin” design. (B. Lichtenberg Decl., Ex. 7.) disseminated claims that Brian stole the “Ballin” design and was selling counterfeit merchandise. (Bohlen Decl. ¶ 13.) 27 28 Defendants also /// 15 1 Defendants conclusorily argue that Plaintiffs’ Defamation 2 claim must fail because Defendants’ statements “are in fact true.” 3 (Opp. at 22.) 4 assertion. 5 claim. Defendants cite to no evidence to support this Plaintiffs are likely to succeed on their defamation 6 B. Remaining Factors 7 8 9 Defendants’ opposition briefly contends that Plaintiffs have failed to demonstrate a likelihood of irreparable harm or that the 10 balance of equities tips in Plaintiffs’ favor. 11 however, focus on Plaintiffs’ trade dress claims. 12 above, Plaintiffs have not adequately demonstrated a likelihood of 13 success on the merits with respect to the trade dress claims. 14 15 16 17 18 19 20 21 22 23 24 Those arguments, As discussed With respect to those claims on which Plaintiffs have shown a likelihood of success, the court is satisfied that the remaining factors have been met. “Evidence of loss of control over business reputation and damage to goodwill” is sufficient to establish irreparable harm. Herb Reed Enters., LLC. v. Florida Entm’t Mgmt., Inc., 736 F.3d 1239, 1250 (9th Cir. 2013). Defendants’ misleading posts about the origins of certain products and suggestions that Brian is a thief, discussed above, certainly have a negative impact on Brian’s reputation and goodwill, and are continuing. Enjoining such acts would serve the public interest, and would not impose any undue hardship upon Defendants.6 25 26 27 28 6 Defendants’ opposition does not explicitly identify any particular hardship, but appears to refer to hardships Defendant might suffer if their sales of Ballin’ merchandise were to be enjoined, presumably on the basis of Plaintiffs’ trade dress claims. 16 1 IV. Conclusion 2 For the reasons stated above, Plaintiffs’ Motion for 3 Preliminary Injunction is GRANTED in part and DENIED in part. 4 Plaintiffs have not demonstrated a likelihood of success on the 5 merits of their trade dress infringement and dilution claims. 6 Plaintiffs have satisfied their burden with respect to their unfair 7 competition, intentional interference, trade secrets, and 8 defamation claims. 9 Accordingly, Defendants, and all persons acting in concert 10 11 12 13 14 with them, are restrained from: 1) the use of pictures of celebrities or others wearing Plaintiffs’ products in any manner that would lead others to believe that such persons are wearing Defendants’ products; 15 16 17 2) using in any way Plaintiffs’ customer, distributor, or manufacturer lists; 18 3) contacting persons or entities with contracts for the purchase 19 or sale of Plaintiffs’s products, or who are in the business of 20 purchasing or selling products similar to Plaintiffs’ products for 21 the purpose of encouraging such persons or entities not to do 22 business with Plaintiffs and/or not to purchase or sell Plaintiffs’ 23 products; and 24 (4) assisting, aiding, or abetting any other person or business 25 entity in engaging in or performing any of the activities referred 26 to in the above paragraphs (1) through (3), or effecting any 27 assignments or transfers, forming new entities or associations, or 28 17 1 utilizing any other device for the purpose of circumventing or 2 otherwise avoiding the prohibitions set forth in paragraphs (1) 3 through (3). 4 5 6 7 8 IT IS SO ORDERED. 9 10 Dated: July 25, 2014 11 DEAN D. PREGERSON 12 United States District Judge 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 18

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