Uptime Sports Nutrition Inc. et al v. Up Energy Drink LLC

Filing 56

PLAINTIFF UPTIME ENERGY INC.S PRELIMINARY INJUNCTION ORDER by Judge John F. Walter: Until the conclusion of a trial in this litigation or further order of the Court,Defendants, their partners, officers, directors, employees, agents, and represen tatives, and all persons, firms and corporations in active concert or participation with any of them are further ordered to immediately remove any YouTube or other online videos that any of them posted that include a photograph, drawing, or othe r depiction of the white bottle that Defendants used for their UP energy drinks starting in or about May 2017 or bottle that is confusingly similar to the UPTIME Trade Dress. Defendants are directed to file with this Court and serve upon Plaintiff within thirty (30) days after entry of this Order a single report in writing under oath setting forth in detail the manner and form in which Defendants have complied with the injunction, as set forth above. (NOTE CHANGES MADE BY COURT. SEE DOCUMENT FOR FURTHER DETAILS) (yl)

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1 2 3 4 5 6 7 8 9 10 JENNIFER LEE TAYLOR (SBN 161368) jtaylor@mofo.com SABRINA LARSON (SBN 291661) slarson@mofo.com MORRISON & FOERSTER LLP 425 Market Street San Francisco, CA 94105 NOTE: Telephone: (415) 268-7000 Facsimile: (415) 268-7522 CHANGES MADE BY THE COURT KATHIANA AURELIEN (SBN 299902) kaurelien@mofo.com MORRISON & FOERSTER LLP 707 Wilshire Boulevard Los Angeles, CA 90017 Telephone: 213) 892-5200 Facsimile: (213) 892-5454 Attorneys for Plaintiff and Counterdefendant UPTIME ENERGY INC. 11 12 UNITED STATES DISTRICT COURT 13 CENTRAL DISTRICT OF CALIFORNIA 14 WESTERN DIVISION 15 16 UPTIME ENERGY INC., Plaintiff, 17 18 19 20 Case No. 2:17-cv-04396-JFW-JC PLAINTIFF UPTIME ENERGY INC.’S PRELIMINARY INJUNCTION ORDER v. UP ENERGY DRINKS LLC, CHRISTIAN GUZMAN, MAX V. CLEMONS, and TREY J. STEIGER, The Hon. John F. Walter Defendants. 21 22 23 24 25 26 UP ENERGY DRINKS, LLC, CHRISTIAN GUZMAN, MAX V. CLEMONS, and TREY STEIGER, Counterclaimants, v. UPTIME ENERGY INC., Counterdefendant. 27 28 la-1366574 PLAINTIFF’S PRELIMINARY INJUNCTION ORDER 1 2 Pursuant to the Court’s November 16, 2017 Order, Plaintiff Uptime Energy Inc. hereby submits this [Proposed] Preliminary Injunction Order. 3 IT IS HEREBY ORDERED THAT: 4 (1) Plaintiff’s Motion for Preliminary Injunction is denied in part and granted in part. 5 The Court denies Plaintiff’s motion to enjoin Defendants from using UP as a trademark for an 6 energy drink for the reasons set forth in the Court’s Order of November 16, 2017 and grants the 7 motion with respect to the UPTIME Trade Dress and any trade dress that is confusingly similar to 8 the UPTIME Trade Dress. The Court orders Plaintiff to submit a bond of $50,000 within two 9 days of entry of this Order 10 IT IS FURTHER ORDERED THAT: 11 (2) Until the conclusion of a trial in this litigation or further order of the Court, 12 Defendants, their partners, officers, directors, employees, agents, and representatives, and all 13 persons, firms and corporations in active concert or participation with any of them, are 14 immediately enjoined from using in any manner the UPTIME Trade Dress, defined as (1) a black 15 or white background with minimal text; (2) a centered logo with an upward pointing arrow; (3) a 16 screw top; and (4) a round bottle with a “shoulder” that is relatively high with a very slight curve 17 to meet the neck, or any trade dress that is confusingly similar to the UPTIME Trade Dress, 18 including, but not limited to: 19 (a) The white bottle that Defendants used for their UP energy drinks starting in or 20 about May 2017; 21 (b) The UP trademark with any predominantly white or black bottle; 22 (c) Any advertisements or other promotional materials featuring any trade dress that is 23 confusingly similar to the UPTIME Trade Dress, such as the bottles specifically 24 identified in points (2)(a) and (b) above, including but not limited to displays on 25 websites and posts on mobile applications or social media; and 26 (d) Any YouTube or other online videos featuring any trade dress that is confusingly 27 similar to the UPTIME Trade Dress, such as the bottles specifically identified in 28 points (2)(a) and (b) above. la-1366574 2 PLAINTIFF’S PRELIMINARY INJUNCTION ORDER 1 (3) Until the conclusion of a trial in this litigation or further order of the Court, 2 Defendants, their partners, officers, directors, employees, agents, and representatives, and all 3 persons, firms and corporations in active concert or participation with any of them are further 4 ordered to immediately remove or delete from any website or social media account that any of 5 them control, including postings on third-party mobile applications such as Instagram, all 6 postings that include a photograph, drawing, or other depiction of the white bottle that Defendants 7 used for their UP energy drinks starting in or about May 2017 or bottle that is confusingly similar 8 to the UPTIME Trade Dress, such as the bottles specifically identified in points (2)(a) and (b) 9 above. 10 (4) Until the conclusion of a trial in this litigation or further order of the Court, 11 Defendants, their partners, officers, directors, employees, agents, and representatives, and all 12 persons, firms and corporations in active concert or participation with any of them are further 13 ordered to immediately remove any YouTube or other online videos that any of them posted that 14 include a photograph, drawing, or other depiction of the white bottle that Defendants used for 15 their UP energy drinks starting in or about May 2017 or bottle that is confusingly similar to the 16 UPTIME Trade Dress, such as the bottles specifically identified in points (2)(a) and (b) above. 17 (5) Defendants are directed to file with this Court and serve upon Plaintiff within 18 thirty (30) days after entry of this Order a single report in writing under oath setting forth in detail 19 the manner and form in which Defendants have complied with the injunction, as set forth above. 20 21 IT IS SO ORDERED. 22 23 Dated: December 5, 2017 24 25 __________________________________________ Honorable John F. Walter UNITED STATES DISTRICT JUDGE 26 27 28 la-1366574 3 PLAINTIFF’S PRELIMINARY INJUNCTION ORDER

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