Bravado International Group Merchandising Services, Inc. v. Does 1-100 et al

Filing 19

AMENDED TEMPORARY RESTRAINING ORDER; SEIZURE ORDER; AND ORDER TO SHOW CAUSE WHY A PRELIMINARY INJUNCTION SHOULD NOT ISSUE, AS MODIFIED. Preliminary Injunction Hearing set for 2/19/2016 09:00 AM. Signed by Judge Jeffrey S. White on 2/3/16. (jjoS, COURT STAFF) (Filed on 2/3/2016)

Cara R. Burns (State Bar No. 137557)

1 [e-mail]
MIMS, KAPLAN & BURNS
2 HICKS,th
2800 28 Street, Ste 383
3 Santa Monica, California 90405
Telephone: [phone]
4 Facsimile: [phone]

5 Attorneys for Plaintiff,
BRAVADO INTERNATIONAL GROUP
6 MERCHANDISING SERVICES, INC.
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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

10 BRAVADO INTERNATIONAL GROUP
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MERCHANDISING SERVICES, INC.,
Plaintiff,
v.

JOHN DOES 1-100, JANE DOES 1-100 AND
14 XYZ COMPANY,

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Defendants.
____________________________________

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Case No. 3:16-cv-00524 JSW
AMENDED
[PROPOSED]
TEMPORARY
RESTRAINING
ORDER; SEIZURE ORDER; AND
ORDER TO SHOW CAUSE WHY A
PRELIMINARY
INJUNCTION
SHOULD NOT ISSUE
AS MODIFIED

Based upon the previously filed complaint, memorandum of points and authorities, Declaration
of Thomas Donnell and the Certificate of Counsel of Cara R. Burns and all other pleadings and

19 proceedings heretofore had herein and good cause being shown:
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IT IS HEREBY ORDERED that defendants, John Does 1-100, Jane Does 1-100 and
XYZ Company their true identities being unknown (collectively "Defendants”), show cause
before the Honorable Jeffrey S. White, United States District Judge, in Courtroom 5 of the
United States District Court for the Northern District of California, located at 1301 Clay
9
February 19
Street, Oakland, California 94612 at ____. 00 m. on ____________, 2016 or as soon
__.

thereafter as counsel can be heard, why an order pursuant to Fed. R. Civ. P. Rule 65, the
Lanham Act 15 U.S.C. § 1051 et. seq., and the All Writs Act 28 U.S.C. § 1651, should not be
entered granting to Plaintiff, Bravado International Group Merchandising Services, Inc. a

28
Hicks, Mims,
Kaplan, and Burns
Attorneys at Law

Amended TRO and Seizure Order, etc.

1 preliminary injunction to enjoin the Defendants from manufacturing, distributing, selling or
2 holding for sale, any clothing, jewelry, photographs, posters and other merchandise
3 (collectively the "Infringing Merchandise") bearing the federally registered trademarks,
4 service marks, likenesses, logos, and designs, of the group known as “METALLICA”
5 (collectively the “Group’s Trademarks”), which are attached hereto as Exhibit A.
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AND IT APPEARING TO THE COURT that Defendants are about to sell and distribute the
Infringing Merchandise bearing any or all of the Group’s Trademarks as set forth in Plaintiff's
complaint and declaration, and will continue to carry out such acts unless restrained by order of the
Court;
AND IT APPEARING TO THE COURT that immediate and irreparable injury, loss or

12 damage will result to the Plaintiff before Defendants can be identified and given notice and their
13 attorneys can be heard in opposition to the granting of the temporary restraining order, in that the
14 Defendants are preparing to manufacture, distribute and sell Infringing Merchandise as set forth in the
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Plaintiff's complaint, and that, unless said Defendants are enjoined from said manufacture,

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distribution, and sale, the Plaintiff will suffer immediate and irreparable injury and harm in the form of
a loss of income, lessening and dilution of the value of the Group’s Trademarks, interference with

19 Plaintiff's ability to exploit, market and license its merchandising rights, confusion in the marketplace
20 as to the duly authorized source of merchandise depicting the Group’s Trademarks, and impairment of
21 the good will Plaintiff and its licensors have in the said Groups Trademarks;
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IT IS FURTHER ORDERED that pending hearing and determination of this application, the
Defendants, their agents, servants, employees, attorneys, successors and assigns and all persons, firms
and corporations acting in concert with them, and each of them, be and hereby are temporarily
restrained from manufacturing, distributing and selling Infringing Merchandise bearing the any or all

27 of the Group’s Trademarks;
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Hicks, Mims,
Kaplan & Burns
Attorneys at Law

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Amended TRO and Seizure Order, etc.
3:16-cv-524 JSW

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AND IT IS FURTHER ORDERED that the United States Marshal, for this District or any

3 district in which Plaintiff enforces this order, the state police, local police or local deputy sheriffs, and
4 off duty officers of the same, are hereby authorized to seize and impound any and all Infringing
5 Merchandise bearing some or all of the Group’s Trademarks, which defendants attempt to sell or are
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holding for sale, including any from any carton, container, vehicle, or other means of carriage in

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which the Infringing Merchandise is found from six (6) hours before to six (6) hours after the
one (1)
performance within a two (2) mile vicinity of the concert to be held February 6, 2016 at AT&T Park,

10 in San Francisco, California;
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AND IT IS FURTHER ORDERED that this order be and is hereby conditioned upon

12 Plaintiff's filing with the Clerk of this Court an undertaking in the form of a surety bond, credit card,
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certified check, or cash in the amount of $_______ no later than February 5, 2016, to secure the
20,000
payment of such costs and damages not to exceed such sum as may be suffered or sustained by any
party who is found to be wrongfully restrained hereby;
AND IT IS FURTHER ORDERED that this temporary restraining order is conditioned upon

18 the Plaintiff's advancing to the law enforcement officers such sum as is required by the same to cover
19 the fees for their said services, in the event Plaintiff seeks their services in this or any other district;
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AND IT IS FURTHER ORDERED that service of a copy of this order to show cause
together with the complaint upon which it is based, be made upon the Defendants by the United States
Marshal, state or local police, local deputy sheriffs or by any person over the age of eighteen (18)
years not a party to this action selected for that purpose by the Plaintiff, at the time of the seizure

25 provided herein is effected and that such service shall be deemed good and sufficient;
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Hicks, Mims,
Kaplan & Burns
Attorneys at Law

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Amended TRO and Seizure Order, etc.
3:16-cv-524 JSW

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AND IT IS FURTHER ORDERED that the process server shall offer a receipt to each

2 person from whom Infringing Merchandise is seized and that the Plaintiff shall be deemed substitute
3 custodian for all Infringing Merchandise seized; and that Plaintiff shall maintain records of any receipts
issued and shall maintain all items seized pending further order of this Court;
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AND IT IS FURTHER ORDERED that each and every defendant served with a copy of this

5 order promptly, courteously and peaceably identify himself or herself to the aforementioned process
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server and that the process server or agents for Plaintiff be allowed to photograph, video tape or

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otherwise identify the Defendant;
AND IT IS FURTHER ORDERED that Defendants' responsive papers, if any, shall be filed

10 with the Clerk of this Court and served upon the attorneys for Plaintiff by delivering copies to its
February 12
11 counsel on or before ___________, 2016. Any reply shall be filed by the Plaintiff and served upon

12 each appearing defendant or his/her counsel on or before _____________, 2016. Plaintiff is to
February 17
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provide copies of all other filed pleadings at the request of any identified defendant;
AND IT IS FURTHER ORDERED that pursuant to F.R.C.P. Rule 65 (b) (4), any Defendant
can apply to this Court to dissolve or modify this Order on two (2) days notice or shorter notice as this

17 Court may allow, but no such application shall serve to suspend this Order or stay its terms unless
18 otherwise ordered by this Court.
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IT IS SO ORDERED.

20 Dated: __________ 2016
February 3
At: _____ __. m.
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________________________________
JEFFREY S. WHITE
UNITED STATES DISTRICT JUDGE

Respectfully Submitted,

23 Bravado International Group

Merchandising Services, Inc.

24 /s/Cara R. Burns

Cara R. Burns, Esq. (Cal. Bar # 137557)

25 Hicks, Mims, Kaplan & Burns
th
26 2800 28 Street, Ste 383
Santa Monica, CA 90405
27 Telephone: [phone]
Facsimile: [phone]

28
Hicks, Mims,
Kaplan & Burns
Attorneys at Law

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Amended TRO and Seizure Order, etc.
3:16-cv-524 JSW

EXHIBIT A TO TEMPORARY RESTRAINING ORDER, SEIZURE
ORDER AND ORDER TO SHOW CAUSE WHY A PRELIMINARY
INJUNCTION SHOULD NOT ISSUE

Word Mark
METALLICA, Federal Registration Nos. 1819042, *2504291
Design Marks:

Federal Registration No. 2231065

Federal Registration No. 2213592

Federal Registration Nos. 3275659, 3275658

Federal Registration No. 2198824