WBS, Inc. v. Stephen Pearcy et al

Filing 78

ORDER DENYING PLAINTIFF'S APPLICATION FOR A TEMPORARY RESTRAINING ORDER 70 , 72 by Judge Dean D. Pregerson . (lc). Modified on 2/10/2017 (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 WBS, INC., a California corporation, 12 Plaintiff, 13 v. 14 15 16 STEPHEN PEARCY, ARTISTS WORLDWIDE, INC., a California corporation, TOP FUEL NATIONAL, a business of unknown formation, 17 Defendants. 18 ___________________________ ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Case No. CV 16-03495 DDP (JCx) ORDER DENYING PLAINTIFF'S APPLICATION FOR A TEMPORARY RESTRAINING ORDER [Dkt. 70, 72] 19 20 Presently before the court is Plaintiff WBS, Inc. ("WBS")'s Ex 21 Parte Application for a Temporary Restraining Order. 22 considered the submissions of the parties, the court denies the 23 application and adopts the following Order. 24 I. 25 Having Background As explained in further detail by another judge of this court, 26 this case concerns certain trademarks originally associated with 27 the band "Ratt." 28 obtained the marks in 1997 via an assignment from a partnership (Dkt. 69 at 2.) Plaintiff asserts that it 1 comprised of certain members of the band. 2 suit against WBS in Los Angeles County Superior Court. 3 cross-complaint alleging, among other things, that Pearcy infringed 4 its RATT marks. 5 the infringement claim and enjoined Pearcy from using the RATT mark 6 in his business or on advertisements and from selling or 7 distributing merchandise or recordings bearing the mark absent 8 approval from WBS or "the RATT General Partnership." 9 In 2001, Pearcy filed WBS filed a In 2002, the state court ruled in WBS' favor on On May 19, 2016, WBS filed the operative Complaint against 10 Defendants Stephen Pearcy, Artists Worldwide ("AWW"), and others 11 for (1) trademark infringement, (2) conversion, (3) tortious 12 interference with prospective economic advantage, (4) unfair 13 competition, and (5) breach of contract. 14 with the Complaint, WBS filed an application for a temporary 15 restraining order ("TRO") and order to show cause ("OSC") why a 16 preliminary injunction should not issue against Defendants. 17 Another judge of this court denied WBS's application. 18 (Dkt. 2.) Concurrently (Dkt. 14.) Now, WBS again seeks a temporary restraining order against 19 Pearcy, alleging that he intends to perform with a band called 20 "RATT" n Minnesota on February 11, 2017. 21 another band touring as "RATT," with WBS authorization, has had 22 shows cancelled due to confusion as to its authenticity. 23 a TRO enjoining Pearcy from using the RATT trademarks allegedly 24 owned by WBS "to promote Pearcy or any band of which he is a 25 member" and from using the marks on websites, merchandise, 26 marketing materials, and from depleting any revenues Pearcy has 27 generated from the use of the marks. 28 // 2 WBS further alleges that WBS seeks 1 2 II. Legal Standard Requests for temporary restraining orders are governed by the 3 same general standards that govern the issuance of a preliminary 4 injunction. 5 Co., Inc., 240 F.3d 832, 839 n. 7 (9th Cir. 2001). 6 is a matter of equitable discretion and is “an extraordinary remedy 7 that may only be awarded upon a clear showing that the plaintiff is 8 entitled to such relief.” 9 Council, Inc., 555 U.S. 7, 22 (2008). 10 See Stuhlbarg Int’l Sales Co., Inc. v. John D. Brush & An injunction Winter v. Natural Resources Defense “A plaintiff seeking a preliminary injunction must establish 11 that he is likely to succeed on the merits, that he is likely to 12 suffer irreparable harm in the absence of preliminary relief, that 13 the balance of equities tips in his favor, and that an injunction 14 is in the public interest.” 15 relief may be warranted where a party: (i) shows a combination of 16 probable success on the merits and the possibility of irreparable 17 harm; or (ii) raises serious questions on such matters and shows 18 that the balance of hardships tips in favor of an injunction. 19 Arcamuzi v. Continental Air Lines, Inc., 819 F.2d 935, 937 (9th 20 Cir. 1987). “These two formulations represent two points on a 21 sliding scale in which the required degree of irreparable harm 22 increases as the probability of success decreases.” 23 both formulations, the party must demonstrate a “fair chance of 24 success on the merits” and a “significant threat of irreparable 25 injury” absent the issuance of the requested injunctive relief.2 Winter, 555 U.S. at 20. Preliminary Id. See Under 26 2 27 28 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 (continued...) 3 1 Id. 2 movant, by a clear showing, carries the burden of persuasion.” 3 Mazurek v. Armstrong, 520 U.S. 968, 972 (1997) (citation omitted). 4 III. Discussion 5 A preliminary injunction “should not be granted unless the To prevail on its trademark cause of action, Plaintiff must 6 show that (1) it has "a protectible ownership interest in the mark; 7 and (2) that Defendants' use of the mark is likely to cause 8 consumer confusion." 9 F.3d 1190, 1202 (9th Cir. 2012) (internal quotation omitted). Rearden LLC v. Rearden Commerce, Inc., 683 10 Plaintiff argues first that it is likely to succeed on the merits 11 of its trademark infringement claim because Defendants are subject 12 to collateral estoppel. 13 ("App") at 5.) 14 issue necessarily decided at the previous proceeding is identical 15 to the one which is sought to be relitigated; (2) the first 16 proceeding ended with a final judgment on the merits; and (3) the 17 party against whom collateral estoppel is asserted was a party or 18 in privity with a party at the first proceeding." 19 FilmTec Corp., 204 F.3d 880, 885 (9th Cir. 2000). 20 (Memorandum in Support Of Application A party may be collaterally estopped where "(1) the Hydranautics v. Although Plaintiff's collateral estoppel argument refers to 21 "the legal history of the parties," the argument is unsupported by 22 any citation to the record. 23 to present evidence in a manner that would allow this court to 24 evaluate it. 25 1026, 1031 (9th Cir.2001). (App. at 5-7.) Parties are obligated See Carmen v. San Francisco Sch. Dist., 237 F.3d Furthermore, Plaintiff does not 26 27 28 2 (...continued) injunction is in the public interest.” Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1135 (9th Cir. 2011). 4 1 identify the issue Pearcy is estopped from pursuing. 2 Plaintiff identifies the 2002 state court judgment as the basis for 3 collateral estoppel, it is not clear to the court how a 4 determination that Pearcy was infringing upon the RATT marks 5 roughly fifteen years ago estops Pearcy from arguing that his 6 recent activities do not infringe.3 7 To the extent Plaintiff's alternative argument regarding likelihood of 8 success on the merits is not well developed. 9 that Pearcy is not entitled to use the RATT marks simply because he Plaintiff is correct 10 is an original member of the band. 11 739-40 (9th Cir. 1999). 12 person who remains continuously involved with a musical group often 13 retains the right to use the mark, Plaintiff again cites no 14 evidence in the record to support the suggestion that this 15 principle creates a likelihood that WBS will prevail. 16 See Robi v. Reed, 173 F.3d 736, Although Plaintiff is also correct that a Id. Lastly, there appears to be a dispute whether Pearcy has 17 obtained a license to use the marks. 18 that he has received permission from both the RATT General 19 Partnership and WBS to utilize the marks. 20 Pearcy ¶¶ 7-9.) 21 ground that Pearcy lacks personal knowledge. 22 has some merit. 23 facts therein are within his personal knowledge (Pearcy Decl. ¶ 1), 24 many of his statements, including the specific statements regarding 25 authorization to use the marks, are made as a matter of Pearcy's Pearcy's declaration states (Declaration of Stephen Plaintiff objects to Pearcy's declaration on the Plaintiff's objection Although Pearcy's declaration states that the 26 3 27 28 Plaintiff makes only occasional, general references to the Declaration of Drew H. Sherman to support all of its factual assertions, including those regarding trademark registrations, the prior state court litigation, and Pearcy's recent activities. 5 1 "current good faith belief and understanding." (Id. ¶¶ 5-9.) 2 Generally, statements made without personal knowledge are entitled 3 to no weight. 4 1412-13 (9th Cir. 1995). 5 belief, however, is not necessarily dispositive. 6 such boilerplate references, a declarant's personal knowledge may 7 be inferred from his position and the nature of his participation 8 in the matters at issue. 9 Cir. 2000); Barthelemy v. Air Lines Pilots Ass'n, 897 F.2d 999, See, e.g. Bank Melli Iran v. Pahlavi, 58 F.3d 1406, A declarant's reference to his good faith Regardless of In re Kaypro, 218 F.3d 1070, 1075 (9th 10 1018 (9th Cir. 1990); Johnson v. Peralta Community College 11 District, No C-94-4255-MMC (PJH), 1997 WL 227903 at * 6 (N.D. Cal. 12 Apr. 28, 1997). 13 personal knowledge of at least some of the facts recited on the 14 basis of his "current good faith belief and understanding." 15 appears undisputed, for example, that Pearcy was formerly an 16 officer of WBS. 17 can infer that Pearcy is personally aware of the activities of the 18 RATT Partnership, of which Pearcy is a member, and that Pearcy is 19 personally aware of authorization that he himself received. 20 ¶¶ 7-8.) 21 without prejudice. 22 IV. 23 Here, it appears beyond dispute that Pearcy has (Pearcy Decl. ¶ 5.) It Similarly, the court (Id. Accordingly, Plaintiff's objections are overruled, Conclusion Plaintiff has not made a clear showing that it is likely to 24 succeed on the merits of its trademark infringement claims. 25 scope of Plaintiff's collateral estoppel is not sufficiently clear, 26 nor is Plaintiff's argument supported by citations to the record. 27 Furthermore, it is unclear whether Pearcy has obtained 28 authorization to use the marks from the RATT Partnership, WBS, or 6 The 1 both, and therefore has an affirmative defense to Plaintiff's 2 infringement claims. 3 TRO is denied.4 Accordingly, Plaintiff's Application for a 4 5 6 IT IS SO ORDERED. 7 8 9 Dated: February 10, 2017 DEAN D. PREGERSON United States District Judge 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 4 28 Nothing in this Order shall be read to preclude Plaintiff from seeking preliminary injunctive relief. 7

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