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 representatives, 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 other 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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JENNIFER LEE TAYLOR (SBN 161368)
[e-mail]
SABRINA LARSON (SBN 291661)
[e-mail]
MORRISON & FOERSTER LLP
425 Market Street
San Francisco, CA 94105
NOTE:
Telephone: [phone]
Facsimile: [phone]

CHANGES MADE BY THE COURT

KATHIANA AURELIEN (SBN 299902)
[e-mail]
MORRISON & FOERSTER LLP
707 Wilshire Boulevard
Los Angeles, CA 90017
Telephone: [phone]
Facsimile: [phone]
Attorneys for Plaintiff and Counterdefendant
UPTIME ENERGY INC.

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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WESTERN DIVISION

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UPTIME ENERGY INC.,
Plaintiff,

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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.

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UP ENERGY DRINKS, LLC, CHRISTIAN
GUZMAN, MAX V. CLEMONS, and TREY
STEIGER,
Counterclaimants,
v.
UPTIME ENERGY INC.,
Counterdefendant.

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la-1366574

PLAINTIFF’S PRELIMINARY INJUNCTION ORDER

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Pursuant to the Court’s November 16, 2017 Order, Plaintiff Uptime Energy Inc. hereby
submits this [Proposed] Preliminary Injunction Order.

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IT IS HEREBY ORDERED THAT:

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(1)

Plaintiff’s Motion for Preliminary Injunction is denied in part and granted in part.

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The Court denies Plaintiff’s motion to enjoin Defendants from using UP as a trademark for an

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energy drink for the reasons set forth in the Court’s Order of November 16, 2017 and grants the

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motion with respect to the UPTIME Trade Dress and any trade dress that is confusingly similar to

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the UPTIME Trade Dress. The Court orders Plaintiff to submit a bond of $50,000 within two

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days of entry of this Order

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IT IS FURTHER ORDERED THAT:

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(2)

Until the conclusion of a trial in this litigation or further order of the Court,

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Defendants, their partners, officers, directors, employees, agents, and representatives, and all

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persons, firms and corporations in active concert or participation with any of them, are

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immediately enjoined from using in any manner the UPTIME Trade Dress, defined as (1) a black

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or white background with minimal text; (2) a centered logo with an upward pointing arrow; (3) a

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screw top; and (4) a round bottle with a “shoulder” that is relatively high with a very slight curve

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to meet the neck, or any trade dress that is confusingly similar to the UPTIME Trade Dress,

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including, but not limited to:

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(a) The white bottle that Defendants used for their UP energy drinks starting in or

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about May 2017;

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(b) The UP trademark with any predominantly white or black bottle;

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(c) Any advertisements or other promotional materials featuring any trade dress that is

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confusingly similar to the UPTIME Trade Dress, such as the bottles specifically

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identified in points (2)(a) and (b) above, including but not limited to displays on

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websites and posts on mobile applications or social media; and

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(d) Any YouTube or other online videos featuring any trade dress that is confusingly

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similar to the UPTIME Trade Dress, such as the bottles specifically identified in

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points (2)(a) and (b) above.
la-1366574

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PLAINTIFF’S PRELIMINARY INJUNCTION ORDER

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(3)

Until the conclusion of a trial in this litigation or further order of the Court,

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Defendants, their partners, officers, directors, employees, agents, and representatives, and all

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persons, firms and corporations in active concert or participation with any of them are further

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ordered to immediately remove or delete from any website or social media account that any of

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them control, including postings on third-party mobile applications such as Instagram, all

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postings that include a photograph, drawing, or other depiction of the white bottle that Defendants

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used for their UP energy drinks starting in or about May 2017 or bottle that is confusingly similar

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to the UPTIME Trade Dress, such as the bottles specifically identified in points (2)(a) and (b)

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above.

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(4)

Until the conclusion of a trial in this litigation or further order of the Court,

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Defendants, their partners, officers, directors, employees, agents, and representatives, and all

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persons, firms and corporations in active concert or participation with any of them are further

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ordered to immediately remove any YouTube or other online videos that any of them posted that

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include a photograph, drawing, or other depiction of the white bottle that Defendants used for

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their UP energy drinks starting in or about May 2017 or bottle that is confusingly similar to the

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UPTIME Trade Dress, such as the bottles specifically identified in points (2)(a) and (b) above.

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(5)

Defendants are directed to file with this Court and serve upon Plaintiff within

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thirty (30) days after entry of this Order a single report in writing under oath setting forth in detail

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the manner and form in which Defendants have complied with the injunction, as set forth above.

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IT IS SO ORDERED.
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Dated: December 5, 2017
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__________________________________________
Honorable John F. Walter
UNITED STATES DISTRICT JUDGE

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la-1366574

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PLAINTIFF’S PRELIMINARY INJUNCTION ORDER